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[Federal Register: October 3, 2003 (Volume 68, Number 192)]
[Rules and Regulations]
[Page 57517-57553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc03-24]
[[Page 57517]]
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Part II
Environmental Protection Agency
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40 CFR Part 62
Federal Plan Requirements for Commercial and Industrial Solid Waste
Incinerators Constructed On or Before November 30, 1999; Final Rule
[[Page 57518]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[AD-FRL-7562-1]
RIN 2060-AJ28
Federal Plan Requirements for Commercial and Industrial Solid
Waste Incinerators Constructed on or Before November 30, 1999
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On December 1, 2000, the EPA adopted emission guidelines for
existing commercial and industrial solid waste incineration (CISWI)
units. Sections 111 and 129 of the Clean Air Act (CAA) require States
with existing CISWI units subject to the emission guidelines to submit
to the EPA plans that implement and enforce the emission guidelines.
Indian Tribes may submit, but are not required to submit, Tribal plans
to implement and enforce the emission guidelines in Indian country.
State plans were due from States with CISWI units subject to the
emission guidelines on December 1, 2001. If a State or Tribe with
existing CISWI units does not submit an approvable plan, sections 129
and 111 of the CAA require the EPA to develop, implement, and enforce a
Federal plan for CISWI units located in that State or Tribal area
within 2 years after promulgation of the emission guidelines (December
1, 2002). The EPA proposed a Federal plan for CISWI units on November
25, 2002. This action promulgates a Federal plan to implement emission
guidelines for CISWI units located in States and Indian country without
effective State or Tribal plans. This Federal plan is an interim action
because on the effective date of an approved State or Tribal plan, the
Federal plan will no longer apply to CISWI units covered by the State
or Tribal plan.
EFFECTIVE DATE: The final rule is effective November 3, 2003.
ADDRESSES: Follow the detailed instructions in the SUPPLEMENTARY
INFORMATION section.
FOR FURTHER INFORMATION CONTACT: For further information concerning
specific aspects of this Federal plan, contact Mr. David Painter at
(919) 541-5515, Program Implementation and Review Group, Information
Transfer and Program Integration Division (E143-02), U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711, email: painter.david@epa.gov. For technical information, contact Mr. Fred
Porter at (919) 541-5251, Combustion Group, Emission Standards Division
(C439-01), U.S. Environmental Protection Agency, Research Triangle Park, N.C. 27711, email: porter.fred@epa.gov. For information regarding
implementation of this Federal plan, contact the appropriate Regional
Office (Table 1) as shown in the SUPPLEMENTARY INFORMATION.
SUPPLEMENTARY INFORMATION: Regulated entities. The Federal plan affects
the following North American Industrial Classification System (NAICS)
and Standard Industrial Classification (SIC) codes:
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Examples of
Category NAICS Code SIC Code potentially regulated
entities
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Any industry using a solid waste 325...................... 28....................... Manufacturers of
incinerator as defined in the chemicals and allied
regulations. products.
334...................... 34....................... Manufacturers of
electronic
equipment.
421...................... 36....................... Manufacturers of
wholesale trade,
durable goods.
321, 337................. 24, 25................... Manufacturers of
lumber and wood
furniture.
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This list is not intended to be exhaustive, but rather provides a
guide for readers regarding entities the EPA expects to be regulated by
this rule. This table lists examples of the types of entities that may
be affected by this rule. Other types of entities not listed could also
be affected. To determine whether your facility, company, business
organization, etc., is regulated by this action, carefully examine the
applicability criteria in 40 CFR 62.14510 through 62.14531 of subpart
III. If you have any questions regarding the applicability of this
action to your solid waste incineration unit, refer to the FOR FURTHER
INFORMATION CONTACT section.
Judicial Review: The EPA proposed this rule for CISWI units on
November 25, 2002, (67 FR 70640). This action adopting a rule for CISWI
units constitutes final administrative action concerning that proposal.
Under section 307(b)(1) of the CAA, judicial review of this final rule
is available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit by December 2, 2003. Under
section 307(d)(7)(B) of the CAA, only an objection to this rule that
was raised with reasonable specificity during the period for public
comment can be raised during judicial review. Moreover, under section
307(b)(2) of the CAA, the requirements established by today's final
action may not be challenged separately in any civil or criminal
proceeding brought by the EPA to enforce these requirements.
Docket. Docket Numbers A-2000-52 and A-94-63 contain the supporting
information for the CISWI Federal plan and for the EPA's promulgation
of EG for existing CISWI units, respectively. Docket A-2000-52 (OAR-
2002-0069)incorporates all of the information in Docket A-94-63. The
dockets are organized and complete files of all information submitted
to or otherwise considered by EPA in the development of this
rulemaking. The dockets are available for public inspection and copying
between 8:30 a.m. and 4:30 p.m., Monday through Friday, at EPA's Air
and Radiation Docket and Information Center, 1301 Constitution Avenue,
NW, Room B102, Washington, DC 20460. The mailing address for the Center
is Air and Radiation Docket, Mail Code 6102T, 1200 Pennsylvania Avenue,
NW, Washington, DC 20460. A reasonable fee may be charged for copying
docket materials. The Center may be contacted by calling (202) 566-1742
between the hours of 7:30 a.m. and 5:30 p.m., Monday through Friday.
The Center may also be contacted by fax using the fax number (202) 566-1741 and by E-mail using the E-mail address ``A-and-R-Docket@epa.gov''.
Electronic Access. Electronic versions of the public dockets are
available through EPA's electronic public docket and comment system,
EPA Dockets. You may use the EPA Dockets at http://www.epa.gov/edocket/
to view public comments, access the indices of the contents of the
official public dockets, and to access those documents in the public
dockets that are available electronically. Once in the system, select
``search'' and key-in the appropriate docket identification number.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket
[[Page 57519]]
materials through the docket facility identified in this document.
Worldwide Web (WWW). In addition to being available in the dockets,
an electronic copy of today's document also will be available on the
World Wide Web site that the EPA has established for CISWI units. The
address is http://www.epa.gov/ttn/atw/129/ciwi/ciwipg.html. The CISWI
Web site references other Web sites for closely related rules, such as
large and small municipal waste combustors (MWC), hazardous waste, and
hospital/medical/infectious waste incinerators (HMIWI). The large MWC
and HMIWI sites contain the respective State plan guidance documents.
EPA Regional Office Contacts. Table 1 lists EPA Regional Offices
that can answer questions regarding implementation of this rule.
Table 1.--EPA Regional Contacts for CISWI
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Region Contact Phone/fax States and protectorates
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I..................... EPA New England, 617-918-1650.......................... CT, ME, MA, NH, RI, VT.
Director, Air Compliance 617-918-1505 (fax)....................
Program, 1 Congress
Street, Suite 1100
(SEA), Boston, MA 02114-
2023.
II.................... U.S. EPA--Region 2, Air 212-637-4080.......................... NJ, NY, Puerto Rico, Virgin Islands.
Compliance Branch, 290 212-637-3998 (fax)....................
Broadway, New York, New
York 10007.
III................... U.S. EPA--Region 3, 215-814-3438.......................... DE, DC, MD, PA, VA, WV.
Chief, Air Enforcement 215-814-2134 (fax)....................
Branch (3AP12), 1650
Arch Street,
Philadelphia, PA 19103-
2029.
IV.................... U.S. EPA--Region 4, Air 404-562-9105.......................... AL, FL, GA, KY, MS, NC, SC, TN.
and Radiation, 404-562-9095 (fax)....................
Technology Branch,
Atlanta Federal Center,
61 Forsyth Street,
Atlanta, Georgia 30303-
3104.
V..................... U.S. EPA--Region 5, Air 312-353-2211.......................... IL, IN, MN, OH, WI.
Enforcement and 312-886-8289 (fax)....................
Compliance Assurance
Branch, (AR-18J), 77
West Jackson Boulevard,
Chicago, IL 60604-3590.
VI.................... U.S. EPA--Region 6, 214-665-7224.......................... AR, LA, NM, OK, TX.
Chief, Toxics 214-665-7446 (fax)....................
Enforcement, Section
(6EN-AT), 1445 Ross
Avenue, Dallas, TX 75202-
2733.
VII................... U.S. EPA--Region 7, 901 913-551-7020.......................... IA, KS, MO, NE.
N. 5th Street, Kansas 913-551-7844 (fax)....................
City, KS 66101.
VIII.................. U.S. EPA--Region 8, Air 303-312-6007.......................... CO, MT, ND, SD, UT, WY.
Program Technical Unit, 303-312-6064 (fax)....................
(Mail Code 8P-AR), 999
18th Street, Suite 500,
Denver, CO 80202.
IX.................... U.S. EPA--Region 9, Air 415-744-1219.......................... AZ, CA, HI, NV, American Samoa, Guam.
Division, 75 Hawthorne 415-744-1076 (fax)....................
Street, San Francisco,
CA 94105.
X..................... U.S. EPA--Region 10, (206) 553-4273
Office of Air Quality, (206) 553-0110 (fax)..................
1200 Sixth Avenue,
Seattle, WA 98101.
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Organization of this document. The following outline is provided to
aid in locating information in this preamble.
I. Background Information
A. What is the Statutory Authority for Today's Action?
B. What is the Purpose of this Federal Plan?
C. What Impact Does the U.S. Appeals Court Remand and EPA's
Granting of a Request for Reconsideration Have on this Federal Plan?
D. Status of State Plan Submittals
II. Affected Facilities
A. What is a CISWI Unit?
B. Does the Federal Plan Apply to Me?
C. How Do I Determine If My CISWI Unit Is Covered by an Approved
and Effective State or Tribal Plan?
III. Elements of the CISWI Federal Plan
A. Legal Authority and Enforcement Mechanism
B. Inventory of Affected CISWI Units
C. Inventory of Emissions
D. Emission Limitations
E. Compliance Schedules
F. Waste Management Plan Requirements
G. Testing, Monitoring, Recordkeeping, and Reporting
H. Operator Training and Qualification Requirements
I. Record of Public Hearings
J. Progress Reports
IV. Significant Issues and Changes Since Proposal
A. Applicability of the Standards
B. Compliance Schedule
C. Air Curtain Incinerators
D. Delegation of Authority
V. Summary of CISWI Federal Plan
A. What Emission Limitations Must I Meet?
B. What Operating Limits Must I Meet?
C. What are the Requirements for Air Curtain Incinerators?
D. What are the Testing, Monitoring, Recordkeeping, and
Reporting Requirements?
E. What is the Compliance Schedule?
F. How Did EPA Determine the Compliance Schedule?
VI. CISWI That Have or Will Shut Down
A. Units That Plan to Close Rather Than Comply
B. Inoperable Units
C. CISWI Units That Have Shut Down
VII. Implementation of the Federal Plan and Delegation
A. Background of Authority
B. Delegation of the Federal Plan and Retained Authorities
C. Mechanisms for Transferring Authority
D. Implementing Authority
E. CISWI Federal Plan and Indian Country
VIII. Title V Operating Permits
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act/Small Business Regulatory
Enforcement Fairness Act (SBREFA)
D. Unfunded Mandates Reform Act
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 that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Background Information
A. What Is the Statutory Authority for Today's Action?
Today's action is taken under the authority of Sections 111, 114,
129, and 301(a) of the Clean Air Act, as amended (42 U.S.C. 7411, 7414,
7429, and 7601(a)). Today's action is a rulemaking subject to the
provision of Clean Air Act section 307(d). See 42 U.S.C. 7606(d)(1).
[[Page 57520]]
B. What Is the Purpose of This Federal Plan?
Section 129 of the CAA requires the EPA to develop emission
guidelines under the authority of sections 111 and 129 of the CAA for
existing ``solid waste incineration units combusting commercial or
industrial waste.'' The EPA refers to these units as ``commercial and
industrial solid waste incineration'' (CISWI) units. The EPA proposed
emission guidelines for CISWI units on November 30, 1999, and
promulgated them on December 1, 2000, (65 FR 75338) (to be codified at
40 CFR part 60, subpart DDDD). In writing Section 129 of the CAA,
Congress looked first to the States as the preferred implementers of
emission guidelines for existing CISWI units. To make these emission
guidelines enforceable, States with existing CISWI units must have
submitted to the EPA within one year following promulgation of the
emission guidelines (by December 1, 2001) State plans that implement
and enforce the emission guidelines. For States or Tribes that do not
have an EPA-approved and effective plan, the EPA must develop and
implement a Federal plan within two years following promulgation of the
emission guidelines (by December 1, 2002). The EPA sees this Federal
plan as an interim measure to ensure that Congressionally mandated
emission standards under authority of sections 111 and 129 of the CAA
are implemented until States assume their role as the preferred
implementers of the emissions guidelines. Thus, the EPA encourages
States to either use the Federal plan as a template to reduce the
effort needed to develop their own plans or to simply take delegation
to directly implement and enforce the guidelines. States without any
existing CISWI units are required to submit to the Administrator a
letter of negative declaration certifying that there are no CISWI units
in the State. No plan is required for States that do not have any CISWI
units.
As discussed in section VII.E of this preamble, Indian Tribes may,
but are not required to, submit Tribal plans to cover CISWI units in
Indian Country. A Tribe may submit to the Administrator a letter of
negative declaration certifying that no CISWI units are located in the
Tribal area. No plan is required for tribes that do not have any CISWI
units. CISWI units located in States or Tribal areas that mistakenly
submit a letter of negative declaration would be subject to the Federal
plan until a State or Tribal plan has been approved and becomes
effective covering those CISWI units.
Sections 111 and 129 of the CAA and 40 CFR 60.27(c) and (d) require
the EPA to develop, implement, and enforce this Federal plan to cover
existing CISWI units located in States that do not have an approved
plan within two years after promulgation of the emission guidelines (by
December 1, 2002, for CISWI units). Today's action promulgates a
Federal plan for CISWI units that are not yet covered by an approved
State or Tribal plan.
C. What Impact Does the U.S. Appeals Court Remand and the EPA's
Granting of a Request for Reconsideration Have on This Federal Plan?
Subsequent to the EPA's promulgation of the final rule establishing
the New Source Performance Standards (NSPS and the Emission Guidelines
(EG)for CISWI units, two events occurred that potentially could result
in substantive changes to these standards. First, in August 2001, the
EPA granted a request for reconsideration, pursuant to section
307(d)(7)(B) of the CAA, submitted on behalf of the National Wildlife
Federation and the Louisiana Environmental Action Network, related to
the definition of ``commercial and industrial solid waste incineration
unit'' in the EPA's CISWI rulemaking. In granting this petition for
reconsideration, the EPA agreed to undertake further notice and comment
proceedings related to this definition. Second, on January 30, 2001,
the Sierra Club filed a petition for review in the U.S. Court of
Appeals for the D.C. Circuit challenging the EPA's final CISWI rule. On
Sept. 6, 2001, the Court entered an order granting the EPA's motion for
a voluntary remand of the CISWI rule without vacature. The EPA's
request for a voluntary remand of the final CISWI rule was intended to
allow the EPA to address concerns related to the EPA's procedures for
establishing MACT floors for CISWI units in light of the DC Circuit
Court's decision in Cement Kiln Recycling Coalition v. EPA, 255 F.3d
855 (DC Cir. 2001).
Neither the EPA's granting of the petition for reconsideration, nor
the Court's order granting a voluntary remand, stay, vacate or
otherwise influence the effectiveness of the currently existing CISWI
regulations. Specifically, section 307(d)(7)(B) of the CAA provides
that ``reconsideration shall not postpone the effectiveness of the
rule,'' except that ``[t]he effectiveness of the rule may be stayed
during such reconsideration * * * by the Administrator or the court for
a period not to exceed three months.'' In this case, neither the EPA
nor the court stayed the effectiveness of the final CISWI regulations
in connection with the reconsideration petition. Likewise, the DC
Circuit granted the EPA's motion for a remand without vacature.
Therefore, the Court's remand order had no impact on the effectiveness
of the current CISWI regulations. Because the existing CISWI
regulations remain in full effect, the EPA's obligation under section
129(b)(3) of the CAA to promulgate a Federal plan (to implement those
regulations for existing units that are not covered by an approved and
effective State plan) remains unchanged.\1\ Therefore, the EPA is
complying with its statutory obligations by promulgating the Federal
plan for CISWI units.
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\1\ Similarly, the obligations of States and sources are
unaffected by the reconsideration petition and the remand.
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To the extent that the EPA might take action in the future that
results in changes in the underlying CISWI rule, in response to the
petition for reconsideration or in response to the voluntary remand,
the EPA will simultaneously amend this Federal plan to reflect any such
changes. If such changes become necessary, interested parties,
including States and sources, will have the opportunity to provide
comments, and the EPA will reasonably accommodate the concerns of
commenters as appropriate.
D. Status of State Plan Submittals
Sections 111(d) and 129(b)(2) of the CAA, as amended, 42 U.S.C.
7411(d) and 7429(b)(2), authorize EPA to develop and implement a
Federal plan for CISWI located in States with no approved and effective
State plan. Table 2 summarizes the current status of State plans. The
CISWI covered in EPA-approved State plans are not subject to the CISWI
Federal plan, as of the effective date specified in the Federal
Register notice announcing the EPA's approval of the State plan. The
EPA is not expecting State plans to be submitted by the States that
submitted negative declarations. However, in the unlikely event that
there are CISWI units located in these States, this Federal plan would
automatically apply to such CISWI units.
[[Page 57521]]
Table 2.--Status of State Plans
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I. States With EPA-Approved State Plans
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Alabama, Florida, Indiana, Mississippi, New Hampshire, West Virginia.
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II. Negative Declaration Submitted to EPA
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Arizona, Albuquerque in New Mexico, Clark County in Nevada, Colorado,
Delaware, District of Columbia, Forsyth County in North Carolina,
Kansas, Kentucky, Knox County in Tennessee, Maine, Maricopa County in
Arizona, Mecklenburg County in North Carolina, Memphis/Shelby County in
Tennessee, Missouri, Montana, New York, Nebraska, New Mexico, City of
Philadelphia in Pennsylvania, Pima County in Arizona, Pinal County in
Arizona, Rhode Island, South Dakota, Utah, Vermont, Virgin Islands,
Washoe County in Nevada, Western County in North Carolina, Wyoming.
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III. Final State Plan Submitted to EPA
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Louisiana, Nashville/Davidson County in Tennessee, North Carolina, South
Carolina, Puerto Rico.
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IV. Draft State Plan Submitted to EPA
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Allegheny County in Pennsylvania, Maryland, North Dakota, Ohio,
Oklahoma, Virginia.
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The EPA is currently reviewing final and draft State plans
submitted by the States listed in parts III and IV of Table 2. The
Federal plan covers CISWI in these States until these State plans are
approved by the EPA and become effective. Other States are making
significant progress on their State plans and we expect many State
plans to be approved in the next several months. As our Regional
Offices approve State plans, they will also, in the same action, amend
the appropriate subpart of 40 CFR part 62 to codify their approvals.
The EPA is not aware of any Indian Tribes that are developing Tribal
plans.
The EPA will maintain a list of State plan submittals and approvals
on our Air Toxics Web site at http://www.epa.gov/ttn/atw/129/ciwi/ciwipg.html.
The list will help CISWI owners or operators determine
whether their CISWI is affected by a State plan, a Tribal plan, or the
Federal plan. Owners and operators of CISWI units can also contact the
EPA Regional Office for the State in which their CISWI units are
located to determine whether there is an approved and effective State
plan in place.
II. Affected Facilities
A. What Is a CISWI Unit?
A CISWI unit means any combustion device that combusts commercial
and industrial waste, as defined in the final 40 CFR part 62, subpart
III. Commercial and industrial waste is defined as 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. Fifteen types of combustion units, which are
listed in section 62.14525 of subpart III are conditionally exempt from
the Federal plan.
B. Does the Federal Plan Apply to Me?
The Federal plan applies to you if you are the owner or operator of
a combustion device that combusts commercial and industrial waste (as
defined in subpart III) and the device is not covered by an approved
and effective State or Tribal plan as of December 1, 2002. The Federal
plan covers your CISWI unit until the EPA approves a State or Tribal
plan that covers your CISWI unit and that plan becomes effective.
If you began the construction of your CISWI unit on or before
November 30, 1999, it is considered an existing CISWI unit and could be
subject to the Federal plan. If you began the construction of your
CISWI unit after November 30, 1999, it is considered a new CISWI unit
and is subject to the NSPS. If you began reconstruction or modification
of your CISWI unit prior to June 1, 2001, it is considered an existing
CISWI unit and could be subject to the Federal plan. Likewise, if you
began reconstruction or modification of your CISWI unit on or after
June 1, 2001, it is considered a new CISWI unit and is subject to the
NSPS.
Your CISWI unit is subject to this Federal plan if on November 3,
2003, the EPA has not approved a State or Tribal plan that covers your
unit, or the EPA-approved State or Tribal plan has not become
effective. The specific applicability of this plan is described in
sections 62.14510 through 62.14531 of subpart III.
Once an approved State or Tribal plan is in effect, the Federal
plan no longer applies to a CISWI unit covered by such plan. An
approved State or Tribal plan is a plan developed by a State or Tribe
that the EPA has reviewed and approved based on the requirements in 40
CFR part 60, subpart B to implement and enforce 40 CFR part 60, subpart
DDDD. The State or Tribal plan is effective on the date specified in
the notice published in the Federal Register announcing the EPA's
approval of the plan.
Today's promulgation of the CISWI Federal plan does not preclude
States or Tribes from submitting a plan. Once the EPA approves a State
or Tribal plan, then the Federal plan will no longer apply to CISWI
units covered by the State or Tribal plan as of the effective date of
the State or Tribal plan. (See the discussion in ``Federal Plan Becomes
Effective Prior to Approval of a State or Tribal Plan'' in section
VII.C of this preamble.) If a CISWI unit were to be overlooked by a
State or Tribe and the State or Tribe submitted a negative declaration
letter, or if an individual CISWI unit were not to be covered by an
approved and effective State or Tribal plan, the CISWI unit would be
subject to this Federal plan.
C. How Do I Determine if My CISWI Unit Is Covered by an Approved and
Effective State or Tribal Plan?
Part 62 of Title 40 of the Code of Federal Regulations identifies
the approval and promulgation of section 111(d) and section 129 State
or Tribal plans for designated facilities in each State or area of
Indian Country. However, part 62 is updated only once per year. Thus,
if part 62 does not indicate that your State or Tribal area has an
approved and effective plan, you
[[Page 57522]]
should contact your State environmental agency's air director or your
EPA Regional Office (Table 1) to determine if approval occurred since
publication of the most recent version of part 62.
III. Elements of the CISWI Federal Plan
Since this Federal plan covers CISWI units located in States and
areas of Indian Country where plans are not yet in effect, the EPA has
included in the Federal plan the same elements as are required for
State plans: (1) Identification of legal authority and mechanisms for
implementation, (2) inventory of CISWI units, (3) emissions inventory,
(4) emission limitations, (5) compliance schedules, (6) waste
management plan, (7) testing, monitoring, inspection, reporting, and
recordkeeping, (8) operator training and qualification, (9) public
hearing, and (10) progress reporting. See 40 CFR part 60 subparts B and
C and sections 111 and 129 of the CAA. Each plan element is described
below as it relates to this CISWI Federal plan. Table 3 lists each
element and identifies where it is located or codified.
Table 3.--Elements of the CISWI Federal Plan
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Element of the CISWI federal plan Location
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Legal authority and enforcement mechanism. Sections 129(b)(3) 111(d),
301(a), and 301(d)(4) of
the CAA.
Inventory of Affected MWC Units........... Docket A-2000-52.
Inventory of Emissions.................... Docket A-2000-52.
Emission Limits........................... 40 CFR 62.14630-62.14645.
Compliance Schedules...................... 40 CFR 62.14535-62.14575.
Operator Training and Qualification....... 40 CFR 62.14595-62.14625.
Waste Management Plan..................... 40 CFR 62.14580-62.14590.
Record of Public Hearings................. Docket A-2000-52.
Testing, Monitoring, Recordkeeping, and 40 CFR 62.14670-62.14760.
Reporting.
Progress Reports.......................... Section III.J of this
preamble.
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A. Legal Authority and Enforcement Mechanism
1. EPA's Legal Authority in States
Section 301(a) of the CAA provides the EPA with broad authority to
write regulations that carry out the functions of the CAA. Sections
111(d) and 129(b)(3) of the CAA direct the EPA to develop a Federal
plan for States that do not submit approvable State plans. Sections 111
and 129 of the CAA provide the EPA with the authority to implement and
enforce the Federal plan in cases where the State fails to submit a
satisfactory State plan. Section 129(b)(3) of the CAA requires the EPA
to develop, implement, and enforce a Federal plan within two years
after the date the relevant emission guidelines are promulgated (by
December 1, 2002, for CISWI units). Compliance with the emission
guidelines cannot be later than five years after the relevant emission
guidelines are promulgated (by December 1, 2005, for CISWI units).
2. EPA's Legal Authority in Indian Country
Section 301 of the CAA provides the EPA with the authority to
administer Federal programs in Indian Country. See sections 301(a) and
(d). Section 301(d)(4) of the CAA authorizes the Administrator to
directly administer provisions of the CAA where Tribal implementation
of those provisions is not appropriate or administratively not
feasible. See section VII.E of this preamble for a more detailed
discussion of the EPA's authority to administer the CISWI Federal plan
in Indian Country.
This Federal plan is being promulgated under the legal authority of
the CAA to implement the emission guidelines in those States and areas
of Indian Country not covered by an approved plan. As discussed in
section VII of this document, implementation and enforcement of the
Federal plan may be delegated to eligible Tribal, State, or local
agencies when requested by a State, eligible Tribal, or local agency,
and when the EPA determines that such delegation is appropriate.
B. Inventory of Affected CISWI Units
The Federal plan includes an inventory of CISWI units affected by
the emission guidelines. (See 40 CFR 60.25(a).) Docket number A-2000-52
contains an inventory of the CISWI units that may potentially be
covered by this Federal plan in the absence of State or Tribal plans.
This inventory contains 99 CISWI units in 30 States and one
protectorate. It is based on information collected from State and
Federal databases, information collection request survey responses, and
stakeholder meetings during the development of the CISWI emission
guidelines. The EPA recognizes that this list may not be complete.
Therefore, sources potentially subject to this Federal plan may
include, but are not limited to, the CISWI units listed in the
inventory memorandum in docket number A-2000-52. Any CISWI unit that
meets the applicability criteria in the Federal plan rule is subject to
the Federal plan, regardless of whether it is listed in the inventory.
C. Inventory of Emissions
The Federal plan includes an emissions estimate for CISWI units
subject to the emission guidelines. (See 40 CFR 60.25(a).) The
pollutants to be inventoried are dioxins/furans, cadmium (Cd), lead
(Pb), mercury (Hg), particulate matter (PM), hydrogen chloride (HCl),
oxides of nitrogen (NOX), carbon monoxide (CO), and sulfur
dioxide (SO2). The EPA has estimated the emissions from each
known CISWI unit that potentially may be covered by the Federal plan
for the nine pollutants regulated by the Federal plan.
The emissions inventory is based on available information about the
CISWI units, emission factors, and typical emission rates developed for
calculating nationwide air impacts of the CISWI emission guidelines and
the Federal plan. Refer to the inventory memorandum in docket number A-
2000-52, item number II-B-3 for the complete emissions inventory and
details on the emissions calculations.
D. Emission Limitations
The Federal plan includes emission limitations. (See 40 CFR
60.24(a).) Section 129(b)(2) of the CAA requires these emission
limitations to be ``at least as protective as'' those in the emission
guidelines. The emission limitations in this Federal plan are the same
as those contained in the emission guidelines. (See Table 1 of subpart
III.) Section V. of this preamble discusses the emission limitations
and operating limits. Table 2 of subpart III contains operating limits
for wet scrubbers.
[[Page 57523]]
E. Compliance Schedules
Increments of progress are required for CISWI units that need more
than 1 year from State plan approval to comply, or in the case of the
Federal plan, more than 1 year after promulgation of the final Federal
plan. (See 40 CFR 60.24(e)(1).) Increments of progress are included to
ensure that each CISWI unit needing more time to comply is making
progress toward meeting the emission limits.
For CISWI units that need more than 1 year to comply, the Federal
plan includes in its compliance schedule two increments of progress
from 40 CFR 60.21(h), as allowed by 40 CFR 60.24(e)(1) and required by
40 CFR part 60, subpart DDDD (Sec. 60.2575). The Federal plan includes
defined and enforceable dates for completion of each increment. These
increments of progress are (1) submit final control plan, and (2)
achieve final compliance. The increments of progress are described in
section V.E of this preamble.
F. Waste Management Plan Requirements
A waste management plan is a written plan that identifies both the
feasibility and the methods used to reduce or separate certain
components of solid waste from the waste stream to reduce or eliminate
toxic emissions from incinerated waste. The waste management plan must
be submitted no later than April 5, 2004. Sections 62.14580 through
62.14590 of subpart III contain the waste management plan requirements.
G. Testing, Monitoring, Recordkeeping, and Reporting
The Federal plan includes testing, monitoring, recordkeeping, and
reporting requirements. (See 40 CFR 60.25.) Testing, monitoring,
recordkeeping, and reporting requirements are consistent with subpart
DDDD, and assure initial and ongoing compliance.
H. Operator Training and Qualification Requirements
The owner or operator must qualify operators or their supervisors
(at least one per facility) by ensuring that they complete an operator
training course and annual review or refresher course. Sections
62.14595 through 62.14625 of subpart III contain the operator training
and qualification requirements.
I. Record of Public Hearings
The proposed Federal plan provided opportunity for public
participation in adopting the plan. No requests for a public hearing
were received by the EPA.
J. Progress Reports
Under the Federal plan, the EPA's Regional Offices will prepare
annual progress reports to show progress of CISWI units in the Region
toward implementation of the emission guidelines. (See 40 CFR
60.25(e).) States or Tribes that have been delegated the authority to
implement and enforce this Federal plan are also required to submit
annual progress reports to the appropriate EPA Regional Office.
Each progress report must include the following items: (1) Status
of enforcement actions; (2) status of increments of progress; (3)
identification of sources that have shut down or started operation; (4)
emission inventory data for sources that were not in operation at the
time of plan development, but that began operation during the reporting
period; (5) additional data as necessary to update previously submitted
source and emission information; and (6) copies of technical reports on
any performance testing and monitoring.
IV. Significant Issues and Changes Since Proposal
A. Applicability of the Standards
A commenter (IV-D-05) representing electric utilities providing
service to more than 95% of the nation's consumers of electricity
commented in support of proposed rules. In particular, the commenter
endorsed the EPA's proposed definitions of ``commercial and industrial
solid waste incineration unit'' and the corresponding definition of
``commercial and industrial waste.'' The commenter said that, taken
together, these two definitions will ensure that the proposed Federal
plan requirements do not inadvertently encompass combustion units,
including electric utility boilers, that burn materials for energy
recovery. The commenter amplified this endorsement noting his
organization's opinion that the proposed rules clarify that the section
129 program was not intended by Congress to encompass electric utility
boiler combustion practices, including those circumstances where
electric utility boilers co-combust non-hazardous solid waste with
fossil fuels during normal production operations. According to the
commenter, it was clear from the legislative history of section 129
that Congress meant only for the EPA to regulate units whose primary
function is to incinerate nonhazardous solid waste, not electric
utility boilers that co-combust small amounts of nonhazardous waste
with fuel during the production of electric power. The commenter sought
to underscore that, for purposes of this rulemaking, the EPA correctly
adopted the same definitions of CISWI and commercial and industrial
waste incorporated in the EG, thereby excluding from the CISWI Federal
plan combustion units, including electric utility boilers, that engage
in energy recovery.
The EPA notes that a comment letter endorsing a proposed action
typically requires no response on our part. Here, we remind the reader
that after promulgating the final rule establishing the NSPS and the EG
for the CISWI category, the EPA received and granted a petition for
reconsideration related specifically to the definition of ``commercial
and industrial solid waste incineration unit''. Thus, the EPA will
undertake additional notice and comment proceedings related to this
definition. Additionally, as discussed above, the EPA accepted a
voluntary remand (without vacature) on the underlying NSPS and EG in
connection with a petition for review filed in the Federal Court of
Appeals for the D.C. Circuit. We clearly acknowledged this fact also in
the proposal for this Federal plan. The EPA intends to take final
action on this definitional issue in conjunction with the EPA's
response to the remand. As we noted at proposal, however, since the
current EG remain in effect, we have proceeded to develop a Federal
plan as required by section 129(b)(3) of the CAA.
Since the Federal plan must mirror the substantive requirements of
the EG, we will promulgate a Federal plan which includes the
definitions endorsed by the commenter. To the extent that we might take
action in the future that results in changes to the definitions in the
underlying CISWI EG, we will simultaneously propose amendments to the
Federal plan to reflect any such changes. If changes become necessary,
interested parties, including the commenter, will have the opportunity
to provide comments. We will reasonably accommodate concerns of
commenters as appropriate.
One commenter (IV-D-01) representing a State air pollution control
agency noted a discrepancy between the proposed Federal plan and EG
requirements for air curtain incinerators (ACI) regarding the types of
wastes qualifying for the exemption of ACI from CISWI emission limits.
The commenter observed that the proposed plan specifies certain
requirements if the ACI's burn only 100 percent wood waste and clean
lumber. By contrast, the EG and NSPS specify certain
[[Page 57524]]
requirements if the ACI burn 100 percent wood waste, 100 percent clean
lumber, or 100 percent wood waste, clean lumber, and/or yard waste. The
commenter asked that the EPA explain and correct the discrepancy as
appropriate.
We agree that the commenter's observation was correct. The proposed
regulatory language has been amended to duplicate the applicability of
the EG. Further, a definition of yard waste has been included to
provide clarity on the meaning of the term ``yard wastes'' for the
purposes of this Federal plan. The term ``yard wastes'' as defined in
the final rule for the CISWI Federal plan includes the excluded wastes
listed in paragraph (1) of the definition of ``wood waste'' in Sec.
62.14840 of the rule. This definition of ``yard wastes'' is consistent
with the one previously promulgated in the NSPS for large municipal
waste combustors (40 CFR Part 60 Subpart Eb). Overall, these changes
will make the final rule better comport to the language in section
129(g)(1) of the CAA.
One commenter (IV-G-01) supports the rationale behind the exemption
in Sec. Sec. 62.14525(n)(7) and 62.2555(n)(7) which exempts ``Units
burning only photographic film to recover silver.'' However, the
commenter believes that for this exemption to be effective, it should
be broadened to cover photographic materials, since there is a broad
range of photographic materials that are burned together to recover
silver. These materials include, not only film, but paper, filters,
sludges and other photosensitive materials. Accordingly, the commenter
recommended changing the wording of Sec. 62.14525(n)(7) to read as
follows: ``(7) Units burning only photographic materials to recover
silver.''
Another commenter (IV-G-04) requested a similar change to the draft
rules to formalize an exemption for carbon regeneration furnaces used
in the corn wet milling industry. He asked for the proposed rule to be
amended to reflect the EPA's granting of a petition for exemption of
these sources on September 24, 2002. To accomplish this purpose, we
were asked to add language to Sec. 62.14525(n) reading as follows:
``Units burning contaminants adsorbed by spent activated carbon when
the spent carbon is being regenerated for reuse in manufacturing
processes.''
While EPA understands the basis for both comments, in light of
section 129(g) of the CAA, we do not believe that adopting additional
specific exemptions in the Federal Plan is the appropriate approach.
First, the appropriate mechanism for requesting exemptions beyond those
expressly provided for in the EG is the petition process described in
Sec. 60.2025 of the NSPS and Sec. 60.2558 of the EG. Second, we do
not believe that it is appropriate to list in the Federal plan each
exemption that EPA approves under these provisions. We are concerned
that making the requested changes would cause a discrepancy between the
express applicability of the EG and the Federal plan. To avoid such
discrepancies, the EPA would need to simultaneously amend the Federal
plan and the EG each time we approve a new exemption under Sec.
60.2558. However, each change in the Federal plan for new exemptions
would cause the Federal plan to differ from State plans.
To appropriately account for exemptions approved under Sec. Sec.
60.2025 and 60.2558, while ensuring that the Federal plan is consistent
with the requirements of the EG, we have amended the final rule to
include a new paragraph 62.14525(n)(8). This provision exempts from the
Federal plan sources which are granted exemptions from the NSPS and EG
through the petition process. Thus, in order to secure an exemption
from the Federal plan requirements based on a facility's status as a
chemical recovery unit, the facility need only apply for and receive an
exemption under the appropriate provision of the NSPS or the EG.
Accordingly, we have also re-drafted Sec. 62.14530 to advise owners/
operators of chemical recovery units not listed in paragraph
62.14525(n) of the appropriate method to request exemptions.
We received comment (IV-D-03) from an operator of CISWI units in
Alaska who requested changes to the proposed rules to fit circumstances
deemed unique to operation of the Alaskan pipeline. The commenter
suggested that a lower size cutoff should be added to the final rule to
reflect the economic impacts of installing emission controls in very
remote locations. The commenter further requested outright exemption of
emergency-use CISWI. The primary concern given was elimination of non-
hazardous debris from the cleanup of large oil spills. The commenter
noted that for large oil spill response operations, incinerators would
be a valuable form of equipment to environmentally and safely dispose
of large amounts of boom, sorbent pads, and personal protective
equipment employed in a clean-up. He said that land-filling such
materials is not a viable option because of the remote locations. He
considered bagging and shipping such waste away from the locale of a
spill infeasible and was not aware of any Alaskan facilities that could
handle the large volumes of oily waste they'd receive. While requesting
that the EPA include in the final Federal plan an exemption for
emergency use CISWI, the commenter would not object to establishment of
minimal standards such as unit capacity limitations in such an
exemption.
We see section 129(a) of the CAA providing discretion to consider
cost, non-air health and environmental impacts and energy requirements
in the establishment of emission standards for CISWI. However, the EPA
may not consider such factors in establishing the minimum stringency
for controls under section 129(a)(2). Moreover, Section 129 does not
permit the EPA to exclude incinerators from coverage under the
regulations based on the size of the incinerator unit. Finally, the
emission limits for CISWI units were established in the manner
prescribed by law for determining that minimal level during development
of the EG. The function of this Federal plan is not to make substantive
changes to those requirement, but to implement those requirements in
States that do not adopt State plans. Section 129(b) requires us to
include in the Federal plan all provisions of the guidelines. Thus, it
would be inappropriate to change this Federal plan in the manner
requested by the commenter.
B. Compliance Schedule
Two commenters (IV-D-02, IV-G-02) asked us to revise the compliance
schedule for existing CISWI units subject to Federal plan to be
consistent with the compliance schedule provided in the EG. Both cited
section 60.2535 of the CISWI EG, wherein the regulation requires
compliance ``as expeditiously as practicable,'' or by the earlier of
two dates: three years after the effective date of State plan approval
or by December 1, 2005. Both noted, however, that section 62.14535 of
the proposed Federal plan provides only one year after promulgation of
the CISWI Federal plan for final compliance. One writer asked us to
synchronize the compliance dates for CISWI units, whether they are
regulated under a State plan or the Federal plan. The other expressed
concern that similar units in different States may have different
compliance dates. We were asked to revise the Federal plan to require
compliance as expeditiously as practicable, but not later than the
earlier date of December 1, 2005, or three years after promulgation of
the Federal plan.
In reply, we note our expectation that schedules for combustion
units subject to section 129 requirements should differ. Because
compliance schedules
[[Page 57525]]
are often tied to the time of State plan approval, most State plans
will have differing compliance dates. Hence, State plans and Federal
plans are not expected to have the same compliance dates for a given
category of sources. Furthermore, State plans and the Federal plan have
the obligation to require compliance ``as expeditiously as
practicable.'' This is specifically required in section 129(f)(2) of
the CAA as well as in 40 CFR 60.24(c) and may be sooner than the worst
case dates identified in the emission guidelines.
State plans were due on December 1, 2002. If a State or Tribe with
existing CISWI units did not submit an approvable plan by December 1,
2002, sections 129 and 111 of the CAA require the EPA to develop,
implement, and enforce a Federal plan for units located in that State
or Tribal area. By developing the Federal plan, we assumed the burden
of implementing the EG for CISWI units not covered by an approved and
effective State or Tribal plan. In the Federal plan, as in a State
plan, the implementing agency has the discretion to apply an
appropriate compliance schedule to the source category. In the case of
the Federal plan, we developed our schedule to achieve compliance with
provisions of the EG as expeditiously as practicable, based on the
feasibility of owners or operators to retrofit combustion units with
air pollution control devices.
Mindful of the requirements of section 129(f)(2), we examined the
feasibility for owners or operators to retrofit combustion units with
air pollution control devices prior to proposal. Based upon
similarities in size and upon examination of eight case studies (Docket
No. A-98-24, II-A-1) of hospital medical infectious waste incineration
(HMIWI) units that completed retrofits of types of controls needed to
meet the HMIWI Federal plan, we chose to require compliance within one
year after publication of the final CISWI Federal plan. Our rationale
for the compliance schedule is discussed fully in the proposal preamble
at 67 FR 70646. Implementation of the EG and Federal plans for HMIWI
have shown that our expectations were well-founded. We concluded that
CISWI owners and operators could meet the final compliance date just as
promptly and efficiently. Also, we noted that in addition to the one
year extension provision of the Federal plan, owner/operators could
have used the time between promulgation of the final CISWI EG (or
proposal of the Federal plan) and promulgation of this Federal plan to
plan and begin retrofits. However, the EPA expects that some CISWI
units could need more than one year to comply, as did some HMIWI units,
due to site-specific circumstances. For units that may have more
complex retrofits or constraints that prevent them from complying
within one year, the Federal plan establishes increments of progress
and those units must comply within two years.
Thus, we will retain the proposed compliance schedule in the final
CISWI Federal plan. Existing CISWI units must comply within one year
after publication of the final rule in the Federal Register or meet
increments of progress and comply within two years after publication of
the final rule in the Federal Register.
We received a request (IV-G-02) to clarify the compliance schedule
for CISWI units that may lose the rule exemption provided in Sec.
62.14525(n)(4) after the effective date of the rule. Section
62.14525(n)(4) exempts chemical recovery units burning only
manufacturing byproduct streams/residues containing catalyst metals
which are reclaimed and reused as catalysts or used to produce
commercial grade catalysts. The commenter owns an operating site which
he believes qualifies for an exemption from the requirements of the
CISWI Federal plan because catalyst metals in incinerator fly ash are
reclaimed off site or used in making commercial grade catalysts. The
commenter is concerned about the potential unavailability of an off-
site reclamation facility and requested that we provide at least three
years after the loss of his expected rule exemption for final
compliance with the rule requirements.
As outlined above and in the preamble to the proposed rule, we
respond by stating our expectation that most CISWI units will reach
final compliance promptly and efficiently. Those CISWI units that
become exempt through Sec. Sec. 62.14525 and 62.14530 of the Federal
plan, but lose that exemption after the compliance date of the Federal
plan, must begin complying with the requirements of the Federal plan
immediately upon loss of the exemption. Moreover, section 129(b)(3)
requires that all CISWI units must be in compliance with the
requirements of a State or Federal plan no later than five years after
promulgation of the emission guidelines, which is December 1, 2005.
Therefore, we would not have the authority to allow a compliance date
three years after loss of an exemption, as suggested by the commenter.
If owners or operators of affected CISWI units anticipate that they
will not be exempt in the future, we encourage them to begin plans for
installation of any controls needed to meet the CISWI emission limits.
According to this final Federal plan, owners or operators are required
to either: (1) Reach final compliance by the date one year after
publication of this final rule in the Federal Register; or (2) meet
increments of progress and reach final compliance by the date two years
after publication of this final rule in the Federal Register. The final
compliance schedule and increments of progress are contained in
Sec. Sec. 62.14535 through 62.14575 of the final CISWI Federal plan.
Therefore, any unit that loses its exemption after the applicable
compliance date (one year from publication of this final Federal plan,
or if a facility has met all the requirements related to increments of
progress, two years after the publication of this final Federal Plan)
must meet the applicable standards as of the date that it loses its
exemption. Similarly, if a facility loses an exemption prior to the
applicable compliance date, the facility must meet the required
standards as of the compliance date.
The same commenter (IV-G-02) opined that the proposed petition
requirements in Sec. 62.14536 for one year compliance extensions are
unnecessary. He said that the CISWI EG include no corresponding
requirement for compliance extensions beyond meeting the two increments
of progress. The commenter believes the increment of progress
requirements in proposed Sec. 62.14540 are sufficient and requested
that EPA remove the proposed requirements in Sec. 62.14536.
We disagree. To develop the CISWI Federal plan, we must determine
how to fill in implementation details not spelled out in the EG or
subpart B, including how and when to grant compliance extensions (as
must States when developing State plans). The EG provide a framework
for implementation, but some details need to be developed through
implementation plans. Paragraph 129(f)(2) requires that the EG be
applied as expeditiously as practicable. Our prior experience with
similar sources shows that requiring compliance within 12 months of
promulgation of the final rule is generally achievable and this is
reflected in the proposed rule. Prior experience also shows that, in
some instances, site-specific concerns can make a one year compliance
schedule impracticable and that is also reflected in the proposed one
year extension of the compliance date. Some criteria are needed to
guide the EPA and the regulated community as to when it would be
appropriate to allow extra time for sources to achieve final
[[Page 57526]]
compliance and how to accomplish this procedurally. The Federal plan is
being implemented under the legal authority of section 111 as well as
section 129. For plans to implement EG under section 111 of the CAA,
the broad procedural approach to be followed is given in the Code of
Federal Regulations at 40 CFR part 60, subpart B. Specifically,
paragraphs 60.24(f)(1) to (3) provide criteria for resolving the
question of how to decide when it is appropriate to allow affected
facilities additional time to achieve compliance. In particular, there
must be a determination that meeting the initial compliance date would
be unreasonably costly, physically impossible, or otherwise
unreasonable. The petition requirements in Sec. 62.14536 for sources
to request one-year compliance extensions were included in the proposed
rule for the express purpose of addressing these requirements.
We have consistently advised States developing State plans to look
to the HMIWI Federal plan for guidance regarding a detailed process for
addressing compliance extensions. Similarly, we are following the
general procedural approach of the HMIWI Federal plan for the CISWI
Federal plan. Our decision to take this path was based upon the
knowledge that the HMIWI Federal plan approach had previously undergone
notice and comment and that its efficacy had been tested in practice
through implementation of the HMIWI Federal plan. Thus, we believe that
the proposed criteria for compliance extensions constitute a reasonable
and appropriate solution to a known problem and are leaving those
criteria in the final rule.
The same commenter (IV-G-02) asked us to revise the performance
test timing requirements in Sec. 62.14665 to allow at least 180 days
after final compliance date for the initial performance test. He
claimed that 90 days after the final compliance date would be
insufficient time to coordinate the operations and emissions test
schedules and complete the final performance test. He noted that Sec.
60.2705 of the CISWI emissions guidelines allows CISWI units subject to
a State plan up to 180 days after the final compliance date for
conducting an initial performance test. The commenter believes the
performance test timing requirements for the CISWI units subject to
Federal plan should be consistent with the performance test timing
requirements for the CISWI units subject to a State plan. The commenter
noted that such a change would make the CISWI Federal plan consistent
with the CISWI emission guidelines.
The 180-day time period to conduct compliance testing originated in
the 1970s, when industry commented that there were not enough qualified
testers to perform the surge of testing that was expected as the
original major rules took effect. At the time, there was enough
credibility to the argument that rule writers allowed a full 180 days
(6 months) to conduct compliance testing. This then became a common
allowance in subsequent NSPS and EG. Under this Federal plan, there are
relatively few CISWI units to be tested, qualified testers are
abundant, and there is sufficient lead time for CISWI owners and
operators to coordinate operations and emissions testing.
While, as the commenter observes, the EG allow States to give
sources up to 180 days after the final compliance date to complete
performance testing, 180 days is the maximum amount of time that may be
allowed. Implementing authorities may require performance testing more
quickly. As discussed above, sufficient test equipment and personnel
are available. In this case, the EPA expects that 90 days is
appropriate and sufficient time to coordinate the operations and
emissions test schedules and complete the final performance test.
This approach has the advantage of reducing the duration of the
period of uncertainty about compliance status between the actual
compliance date and the time that a final test report has been
submitted and approved. While sources are liable for their compliance,
or lack thereof, from the compliance date onward, there exists a time
of uncertainty until testing has been completed and approved by all
relevant parties. Since the proposed plan allows sources two months
following the initial performance test to submit test reports, the
actual period of uncertainty over compliance status is potentially
eight months with a 180 day testing delay. Should a source fail its
performance test, it is immediately subject to enforcement consequences
for its actions dating from the compliance date until such time as a
performance test is successfully passed. However, the task of the
agency responsible for enforcement is complicated by forced reliance
upon a combination of data obtained at an unsuccessful performance test
and data obtained from continuous monitoring systems. In developing the
Federal plan, we have sought to reduce the potential negative impacts
associated with this period of uncertainty. At the same time, we are
not entirely satisfied that the complete elimination of a delay in
performance testing after the compliance date is appropriate and,
hence, we proposed a three month period. In this specific case, some
sources may receive compliance extensions allowing up to two years from
the date of publication of the this final rule. It seems reasonable
that such sources would have more than enough time to arrange and
complete performance testing ahead of their extended compliance date.
For most sources, which will spend the next year planning and
installing emission control systems, we concluded that some additional
time after the compliance date may be needed to complete performance
testing. Thus, we have retained the requirement to conduct the initial
performance test no later than 90 days after the final compliance date.
In doing so, we have balanced the need for timely assurance of
compliance with the practicalities of scheduling and completing
performance testing.
C. Air Curtain Incinerators
We received two statements of opinion arguing against requiring
title V operating permits for air curtain incinerators (ACI). One
commenter (IV-D-01) representing a State air pollution control agency
noted that the proposed rules were clearly written to specify that ACI
would be required to obtain title V operating permits. He correctly
observed that the EG and the NSPS do not specify that ACI should obtain
a title V permit and requested that we change the final rule language
in the Federal plan to read the same as EG and NSPS. He went on to
express his opinion that doing so would result in ACI not being
permitted under title V. This would be acceptable to the commenter who
expressed his belief that the CAA does not require existing ACI (which
burn only the particular wastes specified under the CAA) to operate
under a title V permit. He presented a rationale for this belief. He
first noted that section 129 of the CAA provides for State plans (and
Federal plans) for CISWI under the combined authority of sections 129
and 111 of the CAA. His rationale first quotes section 129(g) of the
CAA which states that the term ``solid waste incineration unit'' does
not include, among other things, `` 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.''
His next step is to focus upon the language specific to title V
operating permits in section 129(e) wherein the CAA states ``Beginning
(1) 36 months after the promulgation of a performance standard under
subsection (a) and
[[Page 57527]]
section 111 applicable to a category of solid waste incineration units,
or (2) the effective date of a permit program under title V in the
State in which the unit is located, whichever is later, each unit in
the category shall operate pursuant to a permit issued under this
subsection and title V.'' (Emphasis added by commenter) He then
combines the two passages cited to conclude that, ``by definition, ACIs
are not solid waste incineration units as long as they burn only the
wastes which are narrowly defined in the Act. Therefore, ACIs are not
required to operate under a title V permit.''
A second State pollution control agency (IV-G-03) echoed the
preceding rationale and conclusions.
We respond by first saying that we were specific in the proposal
about the need for title V permits for ACI subject to the Federal plan
for the purpose of clarifying that need. We did so in order to clearly
present the Agency's view of these sources' title V obligations, and to
answer questions such as those voiced by the commenter resulting from
the absence of such specific language in the EG and NSPS. The Agency
has consistently maintained that operating permits are needed for ACI
subject to the NSPS and to State plans drafted pursuant to the EG.
However, communications we have received since promulgation of the EG
and NSPS pointed to the advisability of specifically clarifying the
matter in the preamble to the Federal plan and in the rule itself.
Thus, to facilitate the application of title V to these sources, we
have specifically included in this Federal plan language describing the
need for title V operating permits.
We disagree with the commenters' conclusion that ACI subject to the
CISWI Federal plan need not obtain title V operating permits. As noted
by the commenters, section 129 directs the Agency to develop
requirements for ACI under the authority of section 111, as well as
section 129. Thus, there are two potential origins of title V
obligations: Section 129(e) and section 502(a). Accordingly, even if
section 129(e) were not applicable, sources would clearly still be
subject to title V, based on the general obligation for all sources
subject to rules written under the authority of section 111 to have
operating permits. Thus, all ACI subject to State plans, Federal plans,
or NSPS must obtain title V operating permits.
With regard to the question of when such permit applications are
due, we believe that the Act provides sufficient discretion for the
Agency to require title V permit applications for ACI in a manner that
is consistent with the obligations of other sources regulated under
section 129 and 111. While paragraph 129(g) clearly contemplates
exempting certain ACI from the substantive emission standards under
paragraphs 129(a) and (b), it is less clear what impact this limited
exemption has on such sources' obligations under title V. In general,
it is clear that section 129 is meant to apply to ACI; either in full
for those ACI that do not meet the limited criteria of the section
129(g) exemption, or in a more limited fashion (including opacity
standards) for those ACIs that qualify for the section 129(g)
exemption. For ACIs subject to the opacity standards that EPA adopts
under this section, the applicability of the 129(e) title V
requirements are made somewhat ambiguous by the wording of paragraph
129(g). However, having established that title V operating permits for
ACI are required as a matter of law (under either 129(e) or 502(a)), we
believe that it is a reasonable exercise of the Agency's discretion to
require all covered ACI (including those subject to the section 129/111
opacity standards) to apply for title V permits within the period of
time permitted by section 129(e). We believe that the intent of section
129 is best served by maintaining consistency in the title V
obligations among the universe of sources regulated under this section,
thereby ensuring that the contemplated emissions reductions are
achieved expeditiously for each category of sources regulated under
this section. Moreover, for ACIs subject only to section 129/111
opacity standards, permit applications should be simpler to prepare
than for sources subject to full regulation under the section 129
emission standards. Thus, the EPA is retaining the requirement for all
sources regulated under section 129/111 (including ACI) to submit title
V operating permit applications within the time frame described in
section 129(e). Consistent with this requirement, a detailed
explanation of when sources regulated under section 129/111 (again,
including ACI) must apply for a title V permit, whether subject to a
State plan, Federal plan, or NSPS, can be found in Table 6 included in
section VIII. of the preamble (titled ``Title V Operating Permits'').
One of the State agency commenters (IV-G-03) also questioned the
utility of requiring title V operating permits for ACI. He said that if
ACI are operated properly, the opacity requirement is easily achieved
and the Federal plan and the CISWI EG/NSPS rules appear to require
nothing more than for the units to operate normally. If such were the
case, he would see requiring ACI to obtain title V operating permits to
be a very protracted administrative effort that would achieve no air
quality benefits.
As we discussed above, we have concluded that ACI need to obtain
title V permits. However, we do not believe that the process for ACI to
obtain title V operating permits needs to be as burdensome as suggested
by the commenter. In terms of the burden of permitting, it is worth
noting that there are only a minimal number of requirements in the
Federal plan which apply to those ACI which burn 100% wood wastes,
clean lumber, and/or yard waste. And, as noted by the commenter, these
requirements are straightforward. Therefore, these requirements should
not be difficult to incorporate into a title V application or permit.
In terms of air quality benefits, we believe that title V permits
provide air quality benefits by helping to ensure that sources comply
with the requirements to which they are subject. Title V requirements
help ensure compliance with applicable requirements in a number of
ways. For example, title V regulations at 40 CFR part 70 and 71 require
sources to self-certify compliance with applicable requirements
initially and annually, require sources to promptly report deviations
from a permit, and require that title V permits contain monitoring
sufficient to assure compliance. This last requirement may necessitate
that additional monitoring be added to a permit to supplement the
monitoring required by the relevant applicable requirement. In short,
title V operating permit requirements can enhance the effectiveness of
rules such as this Federal plan. In terms of this particular rule, a
title V permit will help ensure that an ACI operates within the
parameters established by the Federal plan whether it burns 100% wood
wastes, clean lumber, and/or yard waste, or whether it burns other
wastes and becomes subject to all of the requirements in the Federal
plan.
The commenter also noted the number of exemptions resulting in
negative declarations for CISWI and the similarly structured small
municipal waste combustors (small MWC) rule. He was of the opinion that
since both the CISWI rule and the small MWC rule have numerous
exemptions for a wide variety of sources, most states have few if any
sources covered by them. As an example, he said his State submitted
negative declarations for the small MWC rule and many more States
submitted negative declarations for the CISWI rule. In his State, out
of hundreds of potential
[[Page 57528]]
sources, due to the number of exemptions, they found just nine units
affected by the combined rules, all of which were ACI. Since, in his
opinion, the Federal plan will simply require these units to operate
normally, he questioned the efficacy of expending so much effort on
these series of rules.
The significance of the commenter's observations regarding negative
declarations is unclear. Although the number of sources ultimately
regulated by these rules may be less than expected in some States,
significant emissions reductions are being achieved throughout the
country through the implementation of these rules.
D. Delegation of Authority
A State air pollution control agency (IV-D-04) expressed concerns
about the EPA's general approach to delegating authority and about
specific aspects of the proposed plan. The commenter pointed to
perceived inconsistencies in a number of NSPS and Federal plans and
suggested the proposed plan would contribute to a pattern of
inconsistency. Specific to the proposed CISWI Federal plan, the
commenter observed that an inspector would need to carry around a copy
of the proposal preamble in addition to the Code of Federal Regulations
(CFR) because the delegation of authority provisions were placed in the
preamble instead of following the previously established practice of
including them in the CFR. In addition, the commenter listed specific
questions about the differences in retained authorities in the CISWI
NSPS and the proposed CISWI Federal plan. He posited that the EPA's
general inconsistency combined with the specifics of the proposal
impede the efforts of compliance inspectors. The commenter recommended
an approach for the EPA to use in promulgating this Federal plan and
other regulations concerning the section 129 and section 111 programs.
He asked that the provisions concerning delegation of authority should
be promulgated as part of the regulation and published in the CFR. They
should be written so as to use the same words to express the same
meaning and be based upon a consistent policy as to the provisions that
are not allowed to be delegated.
Our overall response is that we delegate as much authority as
possible, consistent with Congress' intent that States, Tribes, and
local agencies take the primary responsibility for ensuring that the
emission limitations and other requirements in the emission guidelines
are achieved (as discussed at 67 FR 70647). We do withhold delegation
of authorities that may have an effect on the stringency of a standard.
The EPA permits delegation to a State or local agency of all the
Administrator's authorities under 40 CFR part 60, except those that
require rulemaking to implement, that affect the stringency of the
standard, or where national oversight is the only way to ensure
national consistency. In the CISWI source category, as well as the
other categories cited by the commenter, authorities that could affect
the stringency of the standard include approval of alternative emission
standards and operating limits; alternatives to test methods; and
alternatives to monitoring, recordkeeping, and reporting. For section
111 rules, these authorities are specifically listed in the general
provisions of 40 CFR part 60 as authorities not to be delegated.
Because each source category is different, many individual sections of
40 CFR part 60 specifically indicate that certain authorities may not
be delegated. Thus, although we generally withhold delegation of these
same authorities (such as approval of test methods, alternative
emission standards) in the Federal plans, we customize the list for
each source category to ensure that the stringency of the standard for
that category is not jeopardized.
In response to the commenter's specific concern about our proposed
rule, we revised the rule to assure that the provisions concerning
delegation of authority will be codified in the CFR. In addition to
including the delegation of authority provisions in the regulation, we
revised the delegation of authority language to more closely match the
equivalent sections in the NSPS. By using parallel language within the
CISWI source category, we expect the requirements of the CISWI Federal
plan to be more clear to State compliance inspectors. In addition,
using the same language promotes consistent application of requirements
for new CISWI units affected by the NSPS and existing CISWI units
affected by the Federal plan.
V. Summary of CISWI Federal Plan
A. What Emission Limitations Must I Meet?
As the owner or operator of an existing CISWI unit, you will be
required to meet the emission limitations specified in Table 4. See
section V.E of this preamble for a discussion of the compliance
schedule.
Table 4.--Emission Limitations for Existing CISWI Units
----------------------------------------------------------------------------------------------------------------
You must meet these
For these pollutants emission limitations And determine compliance using these methods b
a
----------------------------------------------------------------------------------------------------------------
Cadmium.......................... 0.004 mg/dscm....... EPA Method 29.
Carbon Monoxide.................. 157 ppm............. EPA Methods 10, 10A, or 10B.
Dioxins/Furans, toxic equivalent 0.41 ng/dscm........ EPA Method 23.
(TEQ) basis.
Hydrogen Chloride................ 62 ppm by dry volume EPA Method 29.
Lead............................. 0.04 mg.dscm........ EPA Method 29.
Mercury.......................... 0.47 mg/dscm........ EPA Method 29.
Opacity.......................... 10 percent.......... EPA Method 29.
Oxides of Nitrogen............... 388 ppm by dry EPA Method 7, 7A, 7C, 7D, or 7E.
volume.
Particulate Matter............... 70 mg/dscm.......... EPA Method 5 or 29.
Sulfur Dioxide................... 20 ppm by dry volume EPA Method 6 or 6c.
----------------------------------------------------------------------------------------------------------------
a All emission limitations (except opacity) are measured at 7 percent oxygen, dry basis at standard conditions.
b These methods are in 40 CFR part 60, appendix A.
B. What Operating Limits Must I Meet?
If you are using a wet scrubber to comply with the emission
limitations, you must establish the maximum and minimum site-specific
operating limits indicated in Table 5. You must operate the CISWI unit
and wet scrubber so that the operating parameters do not deviate from
the established operating limits.
[[Page 57529]]
Table 5.--Operating Limits or Existing CISWI Units Using Wet Scrubbers
----------------------------------------------------------------------------------------------------------------
You must establish these And monitor continuously using these
For these operating parameters operating limits recording times
----------------------------------------------------------------------------------------------------------------
Charge rate............................ Maximum charge rate....... Every hour.
Pressure drop across the wet scrubber, Minimum pressure drop or Every 15 minutes.
or amperage to the wet scrubber. amperage.
Scrubber liquor flow rate.............. Minimum flow rate......... Every 15 minutes.
Scrubber liquor pH..................... Minimum pH................ Every 15 minutes.
----------------------------------------------------------------------------------------------------------------
Note: Compliance is determined on a 3-hour rolling average basis, except charge rate for batch incinerators,
which is determined on a daily basis.
If you are using an air pollution control device other than a wet
scrubber to comply with the emission limitations, you must petition the
Administrator for other site-specific operating limits to be
established during the initial performance test and continuously
monitored thereafter. The required components of the petition are
described in Sec. 62.14640 of subpart III.
If you are using a fabric filter to comply with the emission
limitations, in addition to other operating limits as approved by the
Administrator, you must operate the fabric filter system such that the
bag leak detection system alarm does not sound more than 5 percent of
the operating time during any 6-month period.
C. What Are the Requirements for Air Curtain Incinerators?
The Federal plan establishes opacity limitations for air curtain
CISWI units burning 100 percent wood wastes, clean lumber, and/or yard
wastes. This opacity limitation is 10 percent, except 35 percent
opacity is allowed during start-up periods that are within the first 30
minutes of operation.
D. What Are the Testing, Monitoring, Inspection, Recordkeeping, and
Reporting Requirements?
The owner or operator of a CISWI unit subject to the CISWI Federal
plan must conduct initial performance tests for cadmium, dioxins/
furans, hydrogen chloride, lead, mercury, opacity, particulate matter,
and sulfur dioxide and establish operating limits (i.e., maximum or
minimum values for operating parameters). The initial performance test
must be conducted within 90 days after the date the facility is
required to achieve final compliance.
The owner or operator must conduct annual performance tests for
particulate matter, hydrogen chloride, and opacity. (An owner or
operator may conduct less frequent testing if the facility demonstrates
that it is in compliance with the emission limitations for 3
consecutive years.)
To assure ongoing achievement of the Federal plan's provisions, an
owner or operator using a wet scrubber to comply with the emission
limitations will continuously monitor the following operating
parameters: Charge rate, pressure drop across the wet scrubber (or
amperage), and scrubber liquid flow rate and pH. If something other
than a wet scrubber is used to comply with the emission limitations,
the owner or operator must monitor other operating parameters, as
approved by the Administrator.
If the owner or operator is using a fabric filter to comply with
the emission limitations, in addition to other operating limits as
approved by the Administrator, the owner or operator must install and
continuously operate a bag leak detection system. The owner or operator
must keep records of periods when the alarm sounds and calculate
whether these periods are more than 5 percent of the operating time for
each 6-month period. The owner or operator must submit information
documenting compliance with these requirements as part of an annual
report; and report deviations semi-annually.
In addition, the Federal plan requires CISWI unit owners and
operators to maintain for five years records of the initial performance
tests and all subsequent performance tests, operating parameters, any
maintenance, and operator training and qualification. The owner or
operator must submit the results of the initial performance tests and
all subsequent performance tests and values for the operating
parameters in annual reports.
E. What Is the Compliance Schedule?
Each CISWI unit must either: (1) Reach final compliance by October
4, 2004, or (2) meet increments of progress and reach final compliance
by October 3, 2005. In addition, the owner or operator must comply with
the operator training and qualification requirements and inspection
requirements by October 4, 2004, regardless of when the CISWI unit
reaches final compliance.
Each owner or operator that takes more than 1 year to reach final
compliance must submit a final control plan (increment 1) by April 5,
2004 and reach final compliance (increment 2) by October 3, 2005. To
ensure timely progress toward implementation, the Federal plan includes
a requirement for owners or operators of CISWI units seeking to take an
additional year to reach final compliance to submit a request to the
Administrator that documents the need for an extension.
To meet the increment 1 requirement, the owner or operator of each
CISWI unit must submit a final control plan that includes five items:
(1) A description of the air pollution control devices and/or process
changes that will be employed so that each CISWI unit complies with the
emission limits and other requirements, (2) a list of the types of
waste burned, (3) the maximum design waste burning capacity, (4) the
anticipated maximum charge rate, and, (5) if applicable, the petition
for site-specific operating limits. A final control plan is not
required for units that will be shut down, but those units must close
by October 4, 2004 or must submit a closure agreement by April 5, 2004,
close no later than October 3, 2005, and meet other requirements as
described in section VI.A. of this preamble.
To meet the second increment of progress, the owner or operator of
each CISWI unit must incorporate all process changes or complete
retrofit construction in accordance with the final control plan. The
owner or operator must connect the air pollution control equipment or
process changes such that when the CISWI unit is brought on line all
necessary process changes or air pollution control equipment will
operate as designed.
F. How Did EPA Determine the Compliance Schedule?
The EPA determined the compliance schedule based on the
requirements of 40 CFR part 60, subpart B and the feasibility of owners
or operators to retrofit combustion units with air pollution control
devices. CISWI units must comply within 1 year after publication of the
final Federal plan or meet increments of progress. The
[[Page 57530]]
requirement to reach final compliance within one year is consistent
with 40 CFR 60.24(c) of subpart B. Subpart B requires final compliance
to be ``as expeditiously as practicable * * * '' and requires
increments of progress if the compliance schedule is longer than one
year.
The EPA believes that many CISWI units can reach final compliance
within 1 year after promulgation of the Federal plan based on their
similarity to hospital medical and infectious waste incinerator (HMIWI)
units. In addition, units could have used the time between the proposed
rule and this promulgation of the final Federal plan to plan and begin
retrofits.
The compliance schedule for CISWI units is similar to the
compliance schedule for HMIWI units. Most CISWI units are similar in
size to HMIWI units. In addition, CISWI units require similar controls
to meet the CISWI Federal plan emission limits as HMIWI units would
need to meet the HMIWI Federal plan emission limits. To determine the
compliance schedule for HMIWI units, the EPA conducted case studies of
eight HMIWI units that completed retrofits of the types of controls
needed to meet the HMIWI Federal plan (64 FR 36430, July 6, 1999).
Based on these case studies (Docket No. A-98-24, II-A-1), the EPA found
that many HMIWI units can meet the requirements of the HMIWI Federal
plan within 1 year. Similarly, many CISWI units could meet a 1-year
schedule.
The EPA expects that some CISWI units could need more than 1 year
to comply, as did some HMIWI units, due to site-specific circumstances.
For units that cannot comply within 1 year, the Federal plan
establishes increments of progress, as required by subpart B. The date
for the first increment of progress, submittal of a final control plan,
is April 5, 2004. The date for the second increment of progress, final
compliance, is October 3, 2005. These increments are derived from the
findings of the case studies performed to characterize the retrofit of
control systems for HMIWI (Docket A-98-24, Item II-A-1). The size and
design of CISWI are similar to the smaller HMIWI that were the subjects
of the case studies. In particular, most units are small and controls
will be ordered ``off-the-shelf'' as assembled packages. Thus, the EPA
did not see a need for increments to address details of on-site
construction and installation of control systems. Also, CISWI sites are
not thought to have the problems with space and access that were
concerns for HMIWI retrofits. In addition, CISWI units had the time
between publication of the proposed rule and today's publication of the
final rule to begin developing the final control plan and to initiate
retrofit activities.
The Federal plan does not include increments of progress for air
curtain incinerators. Air curtain incinerators must comply with the
requirements of the Federal plan one year after today's date. Delaying
implementation for ACI would not be appropriate because there will be
little or no need for the installation of control equipment on these
units (primarily because control equipment is typically infeasible for
ACI). Compliance with the opacity limits applicable to this class of
units would primarily be achieved by good operation and maintenance
practices. This approach is consistent with the requirement for
completion of CISWI operator training by October 4, 2004.
VI. CISWI That Have or Will Shut Down
A. Units That Plan To Close Rather Than Comply
If you plan to permanently close your currently operating CISWI
unit, you must do one of the following: (a) close by October 4, 2004,
or (b) submit a legally binding closure agreement, including the date
of closure, to the Administrator by April 5, 2004. The closure
agreement must specify the date by which operation will cease. The
closure date cannot be later than the final compliance date of the
CISWI Federal plan (October 3, 2005). If you close your CISWI unit
after October 4, 2004, but before October 3, 2005, then you must comply
with the operator training and qualification requirements by October 4,
2004. In addition, while still in operation, your CISWI unit(s) is
subject to the same requirement to apply for and obtain a title V
operating permit that applies to a CISWI unit that will not be
permanently closing.
B. Inoperable Units
In cases where a CISWI unit has already shut down, has been
rendered inoperable, and does not intend to restart, the CISWI unit may
be left off the source inventory in a State, Tribal, or this Federal
plan. A CISWI unit that has been rendered inoperable would not be
covered by the Federal plan. The CISWI owner or operator may do the
following to render a CISWI unit inoperable: (1) Weld the waste charge
door shut, (2) remove stack (and by-pass stack, if applicable), (3)
remove combustion air blowers, or (4) remove burners or fuel supply
appurtenances.
C. CISWI Units That Have Shut Down
CISWI units that are known to have already shut down (but are not
known to be inoperable) must be included in the source inventory and
identified in any State or Tribal plan submitted to the EPA.
1. Restarting Before the Final Compliance Date
If the owner or operator of an inactive CISWI unit plans to restart
before the final compliance date, the owner or operator must submit a
control plan for the CISWI unit and meet the applicable compliance
schedule. Final compliance is required for all pollutants and all CISWI
units no later than the final compliance date. (See section V.E for the
discussion on compliance schedules and increments of progress.)
2. Restarting After the Final Compliance Date
Under this Federal plan, a control plan would not be needed for
inactive CISWI units that restart after the final compliance date.
However, before restarting, operators of CISWI units would have to
complete the operator training and qualification requirements and
inspection requirements (if applicable) and complete retrofit or
process modifications before restarting the unit. Performance testing
to demonstrate compliance would be required within 90 days after
restarting. There is no need to show that the increments of progress
have been met since these steps would have occurred before restart
while the CISWI unit was shut down and not generating emissions. A
CISWI unit operating out of compliance after the final compliance date
would be in violation of the Federal plan and subject to enforcement
action.
VII. Implementation of the Federal Plan and Delegation
A. Background of Authority
Under sections 111(d) and 129(b) of the CAA, the EPA is required to
adopt emission guidelines that are applicable to existing solid waste
incineration sources. These emission guidelines are not enforceable
until the EPA approves a State or Tribal plan or adopts a Federal plan
that implements and enforces them, and the State, Tribal, or Federal
plan has become effective. As discussed above, the Federal plan
regulates CISWI units in a State or Tribal area that does not have an
EPA-approved plan in effect.
Congress has determined that the primary responsibility for air
pollution prevention and control rests with State
[[Page 57531]]
and local agencies. See section 101(a)(3) of the CAA. Consistent with
that overall determination, Congress established sections 111 and 129
of the CAA with the intent that the States would assume primary
responsibility for ensuring that the emission limitations and other
requirements in the emission guidelines would be achieved. Also, in
section 111(d) of the CAA, Congress explicitly required the EPA to
establish procedures similar to those under section 110(c) for State
implementation plans. Although Congress required the EPA to propose and
promulgate a Federal plan for States that fail to submit approvable
State plans on time, States and Tribes may submit approvable plans
after today's promulgation of the CISWI Federal plan. The EPA strongly
encourages States that are unable to submit approvable plans to request
delegation of the Federal plan so that they can have primary
responsibility for implementing the emission guidelines, consistent
with Congress' intent.
Approved and effective State plans or delegation of the Federal
plan is the EPA's preferred outcome since we believe that State
agencies not only have the responsibility to carry out the emission
guidelines, but also have the practical knowledge and enforcement
resources critical to achieving the highest rate of compliance. For
these reasons, the EPA will do all that it can to expedite delegation
of the Federal plan to State agencies, whenever possible.
The EPA also believes that Indian Tribes should be the primary
parties responsible for regulating air quality within Indian Country,
if they desire to do so. See the EPA's Indian Policy (``Policy for
Administration of Environmental Programs on Indian Reservations,''
signed by William D. Ruckelshaus, Administrator of EPA, dated November
4, 1984), reaffirmed in a 2001 memorandum (``EPA Indian Policy,''
signed by Christine Todd Whitman, Administrator of EPA, dated July 11,
2001).
B. Delegation of the Federal Plan and Retained Authorities
If a State or Indian Tribe intends to take delegation of the
Federal plan, the State or Indian Tribe must submit to the appropriate
EPA Regional Office a written request for delegation of authority. The
State or Indian Tribe must explain how it meets the criteria for
delegation. See generally ``Good Practices Manual for Delegation of
NSPS and NESHAP'' (EPA, February 1983). In order to obtain delegation,
an Indian Tribe must also establish its eligibility to be treated in
the same manner as a State (see section VII.E.1 of this preamble). The
letter requesting delegation of authority to implement the Federal plan
must demonstrate that the State or Tribe has adequate resources, as
well as the legal and enforcement authority to administer and enforce
the program. A memorandum of agreement between the State or Tribe and
the EPA would set forth the terms and conditions of the delegation, the
effective date of the agreement, and would also serve as the mechanism
to transfer authority. Upon signature of the agreement, the appropriate
EPA Regional Office would publish an approval notice in the Federal
Register, thereby incorporating the delegation authority into the
appropriate subpart of 40 CFR part 62.
If authority is not delegated to a State or Indian Tribe, the EPA
will implement the Federal plan. Also, if a State or Tribe fails to
properly implement a delegated portion of the Federal plan, the EPA
will assume direct implementation and enforcement of that portion. The
EPA will continue to hold enforcement authority along with the State or
Tribe even when a State or Tribe has received delegation of the Federal
plan. In all cases where the Federal plan is delegated, the EPA will
withhold and will not transfer to a State or Tribe authority to perform
several specific actions. We typically do not delegate authority to
devise alternative requirements that could change the stringency of the
underlying standard, which are likely to be nationally significant, or
which may require a national rulemaking and subsequent Federal Register
notice. The following authorities may not be delegated to the State,
Tribal or local agencies: Approval of alternative non-opacity emission
standards, approval of alternative opacity standards, approval of major
alternatives to test methods, approval of major alternatives to
monitoring, and waiver of recordkeeping and reporting. For this Federal
plan we are also maintaining the following authorities:
(1) Alternative site-specific operating parameters established
by facilities using CISWI controls other than a wet scrubber (Sec.
62.14640 of subpart III),
(2) Petitions to the Administrator under section 62.14530 to add
a chemical recovery unit to section 62.14525(n) of subpart III, and
(3) Alternative methods of demonstrating compliance.
CISWI owners or operators who wish to establish alternative
operating parameters or alternative methods of demonstrating compliance
should submit a request to the Regional Office Administrator with a
copy to the appropriate State or Tribe.
C. Mechanisms for Transferring Authority
There are two mechanisms for transferring implementation authority
to State or Tribal agencies: (1) EPA approval of a State or Tribal plan
after the Federal plan is in effect; and (2) if a State or Tribe does
not submit or obtain approval of its own plan, EPA delegation to a
State or Tribe of the authority to implement certain portions of this
Federal plan to the extent appropriate and if allowed by State or
Tribal law. Both of these options are described in more detail below.
1. Federal Plan Becomes Effective Prior to Approval of a State or
Tribal Plan
After CISWI units in a State or Tribal area become subject to the
Federal plan, the State or Tribal agency may still adopt and submit a
plan to the EPA. If the EPA determines that the State or Tribal plan is
as protective as the emission guidelines, we will approve the State or
Tribal plan. If the EPA determines that the plan is not as protective
as the emission guidelines, we will disapprove the plan and the CISWI
units covered in the State or Tribal plan will remain subject to the
Federal plan until a State or Tribal plan covering those CISWI units is
approved and effective.
Upon the effective date of an approved State or Tribal plan, the
Federal plan will no longer apply to CISWI units covered by such a
plan, and the State or Tribal agency will implement and enforce the
State or Tribal plan in lieu of the Federal plan. When an EPA Regional
Office approves a State or Tribal plan, it will amend the appropriate
subpart of 40 CFR part 62 to indicate such approval.
2. State or Tribe Takes Delegation of the Federal Plan
The EPA, in its discretion, may delegate to State or eligible
Tribal agencies the authority to implement this Federal plan. As
discussed above, we believe that it is advantageous and the best use of
resources for State or Tribal agencies to agree to undertake, on the
EPA's behalf, the administrative and substantive roles in implementing
the Federal plan to the extent appropriate and where authorized by
State or Tribal law. If a State requests delegation, we will generally
delegate the entire Federal plan to the State agency. These functions
include administration and oversight of compliance reporting and
recordkeeping requirements, CISWI
[[Page 57532]]
inspections, and preparation of draft notices of violation.
The EPA also believes that it is the best use of resources for
Tribal agencies to undertake a role in the implementation of the
Federal plan. The Tribal Authority Rule issued on February 12, 1998 (63
FR 7254) provides Tribes the opportunity to develop and implement Clean
Air Act programs. However, due to resource constraints and other
factors unique to Tribal governments, it leaves to the discretion of
the Tribe whether to develop these programs and which elements of the
program they will adopt. Consistent with the approach of the Tribal
Authority Rule, we may choose to delegate a partial Federal plan (i.e.,
to delegate authority for some functions needed to carry out the plan)
in appropriate circumstances and where consistent with Tribal law.
Both States and Tribal agencies, that have taken delegation, as
well as the EPA, will have responsibility for bringing enforcement
actions against sources violating Federal plan provisions. However, the
EPA recognizes that Tribes have limited criminal enforcement authority,
and will address in the delegation agreement with the Tribe how
criminal enforcement issues are referred to the EPA.
D. Implementing Authority
The EPA will delegate authority within the EPA to the EPA Regional
Administrators to implement the CISWI Federal plan. All reports
required by this Federal plan should be submitted to the appropriate
Regional Office Administrator. Table 1 under Supplementary Information
lists the contact information for the EPA Regional Offices and the
States that they cover.
E. CISWI Federal Plan and Indian Country
The term ``Indian country,'' as used in this preamble, means (1)
all land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation; (2) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and (3) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
The CISWI Federal plan will apply throughout Indian country to
ensure that there is not a regulatory gap for existing CISWI units in
Indian Country. However, eligible Indian Tribes now have the authority
under the CAA to develop Tribal plans in the same manner that States
develop State plans. On February 12, 1998, EPA promulgated regulations
that outline provisions of the CAA for which it is appropriate to treat
Tribes in the same manner as States. See 63 FR 7254 (Final Rule for
Indian Tribes: Air Quality Planning and Management, (Tribal Authority
Rule)) (codified at 40 CFR part 49). As of March 16, 1998, the
effective date of the Tribal Authority Rule, the EPA has had authority
under the CAA to approve Tribal programs such as Tribal plans to
implement and enforce the CISWI emission guidelines.
1. Tribal Implementation
Section 301(d) of the CAA authorizes the Administrator to treat an
Indian tribe as a State under certain circumstances. The Tribal
Authority Rule, which implements section 301(d) of the CAA, identifies
provisions of the CAA for which it is appropriate to treat a Tribe as a
State. (See 40 CFR 49.3 and 49.4.) Under the Tribal Authority Rule, a
Tribe may be treated as a State for purposes of this Federal plan. If a
Tribe meets the criteria below, the EPA can delegate to an Indian tribe
authority to implement the Federal plan in the same way it can delegate
authority to a State:
(1) The applicant is an Indian tribe recognized by the Secretary of
the Interior;
(2) The Indian tribe has a governing body carrying out substantial
governmental duties and functions;
(3) The functions to be exercised by the Indian tribe pertain to
the management and protection of air resources within the exterior
boundaries of the reservation or other areas within the tribe's
jurisdiction; and
(4) The Indian tribe is reasonably expected to be capable, in the
EPA Regional Administrator's judgment, of carrying out the functions to
be exercised in a manner consistent with the terms and purposes of the
CAA and all applicable regulations. (See 40 CFR 49.6.)
2. EPA Implementation
The CAA also provides the EPA with the authority to administer
Federal programs in Indian Country. This authority is based in part on
the general purpose of the CAA, which is national in scope. Section
301(a) of the CAA provides the EPA broad authority to issue regulations
that are necessary to carry out the functions of the CAA. Congress
intended for the EPA to have the authority to operate a Federal program
when Tribes choose not to develop a program, do not adopt an approvable
program, or fail to adequately implement an air program authorized
under section 301(d) of the CAA.
Section 301(d)(4) of the CAA authorizes the Administrator to
directly administer provisions of the CAA to achieve the appropriate
purpose where Tribal implementation is not appropriate or
administratively not feasible. The EPA's interpretation of its
authority to directly implement CAA programs in Indian country is
discussed in more detail in the Tribal Authority Rule. See 63 FR 7262-
7263. As mentioned previously, Tribes may, but are not required to,
submit a CISWI plan under section 111(d) of the CAA.
3. Applicability in Indian Country
The Federal plan applies throughout Indian Country except where an
EPA-approved plan already covers an area of Indian country. This
approach is consistent with the EPA's implementation of the Federal
Operating Permits program in Indian Country (see 64 FR 8247 (February
19, 1999)).
VIII. Title V Operating Permits
Except for the sources specified in section 62.14830 of the Federal
plan, sources subject to this CISWI Federal plan must obtain title V
operating permits. These title V operating permits must assure
compliance with all applicable requirements for these sources,
including all applicable requirements of this Federal plan. See 40 CFR
70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.
Owners or operators of section 129 sources (including CISWI units)
subject to standards or regulations under sections 111 and 129 must
operate pursuant to a title V permit not later than 36 months after
promulgation of emission guidelines under sections 111 and 129 or by
the effective date of the State, Tribal, or Federal title V operating
permits program that covers the area in which the unit is located,
whichever is later. The EPA has interpreted section 129(e) to be
consistent with section 503(d) of the CAA and 40 CFR 70.7(b) and
71.7(b). (See, e.g., the final Federal Plan for Hospital/Medical/
Infectious Waste Incinerators, August 15, 2000 (65 FR 49868, 49878)).
Section 503(d) of the CAA and 40 CFR 70.7(b) and 71.7(b) allow a source
to operate without being in violation of title V once the source has
submitted a timely and complete
[[Page 57533]]
permit application, even if the source has not yet received a final
title V operating permit from the permitting authority.\2\ As a result,
the EPA interprets the dates in section 129(e) to be the dates by which
complete title V applications need to be submitted. In the absence of
such an interpretation, a section 129 source may be required to prepare
and submit a complete title V application and the permitting authority
would have to issue a permit to this source in a very short period of
time.\3\
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\2\ A title V application should be submitted early enough for
the permitting authority to find the application either complete or
incomplete before the title V application deadline. In the event the
application is found incomplete by the permitting authority, the
source must submit the information needed to make the application
complete by the application deadline in order to obtain the
application shield. See 40 CFR 62.14835(b) and 40 CFR 70.5(a)(2) and
71.5(a)(2).
\3\ For example, in the absence of such an interpretation, if a
final Federal plan were to become effective more than 24 months
after the promulgation of emission guidelines promulgated under
sections 111 and 129, a source, if subject to the Federal plan,
would have less than 12 months to prepare and submit a complete
title V permit application and to have the permit issued. The EPA's
interpretation allows section 129(e) to be read consistently with
section 503(d) of the CAA and 40 CFR 70.7(b) and 71.7(b). The EPA's
interpretation is also consistent with section 503(c) of the CAA
which requires sources to submit title V applications not later than
12 months after becoming subject to a title V permits program. If a
permit, as opposed to a title V application, were required by the
later of the two deadlines specified in section 129(e), some section
129 sources would be required to have been issued final title V
permits in potentially much less time than allotted for non-section
129 sources to submit their title V applications.
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As a result of the EPA's interpretation, existing CISWI units must
submit complete title V applications by the later of the following
dates: Not later than 36 months after the promulgation of 40 CFR part
60, subpart DDDD or by the effective date of the State, Tribal, or
Federal title V operating permits program that covers the area in which
the unit is located. As of today's action, all areas of the country are
covered by effective title V programs. As a result, the relevant
section 129(e) date for existing CISWI units is 36 months following
promulgation of 40 CFR part 60, subpart DDDD, i.e., December 1, 2003.
Therefore, December 1, 2003, is the latest possible date by which
complete applications for existing CISWI units can be submitted and
still be considered timely. This date applies regardless of when the
CISWI Federal plan becomes effective or when an EPA approved section
111(d)/129 plan for existing CISWI units becomes effective. If,
however, an earlier application deadline applies to an existing CISWI
unit, then this deadline must be met in order for the unit to be in
compliance with section 502(a) of the CAA. To determine when an
application is due for an existing CISWI unit, section 129(e) of the
CAA must be read in conjunction with section 503(c) of the CAA.
As stated in section 503(c), a source has up to 12 months to apply
for a title V permit once it becomes subject to a title V permitting
program.\4\ For example, if an existing CISWI unit becomes subject to a
title V permitting program for the first time on the effective date of
this Federal plan, then the source must apply for a title V permit
within 12 months of the effective date of this Federal plan in order to
operate after this date in compliance with Federal law.
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\4\ If a source is subject to title V for more than one reason,
the 12-month time frame for submitting a title V application is
triggered by the requirement which first causes the source to become
subject to title V. As provided in section 503(c) of the CAA,
permitting authorities may establish permit application deadlines
earlier than the 12-month deadline.
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An application deadline earlier than either of the two dates noted
above, i.e., December 1, 2003, or not later than 12 months after the
effective date of this Federal plan, may apply to an existing CISWI
unit if it is subject to title V for more than one reason. For example,
an existing CISWI unit may already be subject to title V as a result of
being a major source under one or more of three major source
definitions in title V--section 112, section 302, or part D of title I
of the CAA. See 40 CFR 70.3(a)(1) and 71.3(a)(1) (subjecting major
sources to title V permitting) and 40 CFR 70.2 and 71.2 (defining major
source for purposes of title V). See also 40 CFR 70.3(a) and (b) and
71.3(a) and (b) for a list of the applicability criteria which trigger
the requirement to apply for a title V permit.
If an owner or operator is already subject to title V by virtue of
some requirement other than this Federal plan and has submitted a
timely and complete permit application, but the draft title V permit
has not yet been released by the permitting authority, then the owner
or operator must supplement the title V application by including the
applicable requirements of this Federal plan in accordance with 40 CFR
70.5(b) or 71.5(b). If an existing CISWI unit is a major source or is
part of a major source, is subject to this Federal plan, and is already
covered by a title V permit with a remaining permit term of three or
more years on the effective date of this Federal plan, then the owner
or operator will receive from his permitting authority a notice of
intent to reopen his source's title V permit to include the
requirements of this Federal plan. Reopenings required for such CISWI
units must be completed not later than 18 months after the effective
date of this Federal plan in accordance with the procedures established
in 40 CFR 70.7(f)(1)(i) or 71.7(f)(1)(i). If an existing CISWI unit
subject to this Federal plan does not meet the above criteria, e.g.,
the unit is part of a nonmajor source or is covered by a permit which
has a remaining term of less than 3 years on the effective date of this
Federal plan, then the permitting authority does not need to reopen the
source's permit, as a matter of Federal law, to include the
requirements of this Federal plan.\5\ However, the owner or operator of
a source subject to a section 111/129 Federal plan remains subject to,
and must act in compliance with, section 111/129 requirements and all
other applicable requirements to which the source is subject regardless
of whether these requirements are included in a title V permit. See 40
CFR 70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.
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\5\ See The CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and
71.7(f)(1)(i). Owners or operators of CISWI units, which have been
permitted and are subject to this Federal plan, may wish to consult
their operating permits program regulations or permitting
authorities to determine whether their permits must be reopened to
incorporate the requirements of this Federal plan.
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The EPA has recently become aware that there has been some
confusion regarding the title V obligations of section 129 sources that
are subject to standards or regulations under sections 111 and 129. We
are therefore including Table 6 to help clarify when CISWI units (even
those not subject to this Federal plan) must apply for a title V
permit. While Table 6 provides specific information relative to CISWI
units, the same title V obligations apply to all section 129 sources
subject to standards or regulations under sections 111 and 129. Of
course, specific deadlines will vary for other section 129 sources
depending on when the relevant NSPS is promulgated, when the relevant
State or Tribal section 111(d)/129 plan is approved by the EPA and
becomes effective, etc. Lastly, Table 6 takes into account that as of
the promulgation date, i.e., December 1, 2000, for the NSPS (subpart
CCCC of part 60) and emission guidelines (subpart DDDD of part 60) for
CISWI units, every area of the country was covered by a title V permits
program under 40 CFR part 70 or part 71. This point is relevant because
a section 111/129 standard cannot trigger the requirement for a source
to apply for a title V permit unless a title V permits program is in
[[Page 57534]]
effect in the area in which the source is located.
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\6\ A title V application from a major source must address all
emissions units at the title V source, not just the section 129
emissions unit. See 40 CFR 70.3(c)(1) and 71.3(c)(1). (For
information on aggregating emissions units to determine what is a
source under title V, see the definition of major source in 40 CFR
70.2, 71.2, and 63.2.)
\7\ Consistent with 40 CFR 70.3(c)(2) and 71.3(c)(2), a permit
application from a nonmajor title V source is only required to
address the emissions units which caused the source to be subject to
title V. The applicability criteria which determine the need for the
owner or operator of a nonmajor source to apply for a title V permit
are found in 40 CFR 70.3(a) and (b) and 71.3(a) and (b). Permits
issued to these nonmajor sources must include all of the applicable
requirements that apply to the triggering units, e.g., State
Implementation Plan requirements, section 111 or 112 requirements,
etc. See footnote 2 in Change to Definition of Major Source
rule, November 27, 2001 (66 FR 59161, 59163).
\8\ If a CISWI unit becomes subject to an approved and effective
State or Tribal section 111(d)/129 plan after being subject to an
effective Federal plan, the CISWI unit is still required to file a
complete title V application consistent with the application
deadlines for units subject to the CISWI Federal plan.
Table 6.--Deadlines for Title V Sources
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Submitting Title V Permit Applications
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If a CISWI unit is a major source or is Then a complete title V
part of a major source, and had application which covers the
commenced operation as of the entire source \6\ is due not
effective date of the relevant title V later than 12 months (or
permits program. earlier if required by the
title V permitting authority)
after the effective date of
the relevant title V permits
source, and had program. See
CAA section 503(c) and 40 CFR
70.4(b)(11)(i), 71.4(i)(1),
70.5(a)(1)(i) and
71.5(a)(1)(i).
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If a CISWI unit is a major source or is Then a complete title V
part of a major source but did not application which covers the
commence operation until after the entire source is due not later
relevant title V premits program than 12 months (or earlier if
became effective. required by the title V
permitting authority) after
the date the source commences
operation. See CAA section
503(c) and 40 CFR
70.5(a)(1)(i) and
71.5(a)(1)(i).
If a CISWI unit is a nonmajor source or Then a complete title V
is part of a nonmajor source, is application \7\ is due not
subject to the CISWI NSPS (subpart later than 12 months after
CCCC of 40 CFR part 60), and had subpart CCCC was promulgated,
commenced operation as of December 1, i.e., December 1, 2001 (or
2000. earlier if required by the
title V permitting authority).
See CAA section 503(c) and 40
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