# Federal Plan Requirements for Commercial and Industrial Solid Waste Incinerators Constructed on or Before November 30, 1999 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A03-24004 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 3, 2003 - **Citation:** 68 FR 57518 ## Text 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. 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: Category NAICS Code SIC Code Examples of potentially regulated entities Any industry using a solid waste incinerator as defined in the regulations 325 28 Manufacturers of chemicals and allied 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. 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 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 Region Contact Phone/fax States and protectorates I EPA New England, Director, Air Compliance Program, 1 Congress Street, Suite 1100 (SEA), Boston, MA 02114-2023 617-918-1650 617-918-1505 (fax) CT, ME, MA, NH, RI, VT. II U.S. EPA—Region 2, Air Compliance Branch, 290 Broadway, New York, New York 10007 212-637-4080 212-637-3998 (fax) NJ, NY, Puerto Rico, Virgin Islands. III U.S. EPA—Region 3, Chief, Air Enforcement Branch (3AP12), 1650 Arch Street, Philadelphia, PA 19103-2029 215-814-3438 215-814-2134 (fax) DE, DC, MD, PA, VA, WV. IV U.S. EPA—Region 4, Air and Radiation, Technology Branch, Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303-3104 404-562-9105 404-562-9095 (fax) AL, FL, GA, KY, MS, NC, SC, TN. V U.S. EPA—Region 5, Air Enforcement and Compliance Assurance Branch, (AR-18J), 77 West Jackson Boulevard, Chicago, IL 60604-3590 312-353-2211 312-886-8289 (fax) IL, IN, MN, OH, WI. VI U.S. EPA—Region 6, Chief, Toxics Enforcement, Section (6EN-AT), 1445 Ross Avenue, Dallas, TX 75202-2733 214-665-7224 214-665-7446 (fax) AR, LA, NM, OK, TX. VII U.S. EPA—Region 7, 901 N. 5th Street, Kansas City, KS 66101 913-551-7020 913-551-7844 (fax) IA, KS, MO, NE. VIII U.S. EPA—Region 8, Air Program Technical Unit, (Mail Code 8P-AR), 999 18th Street, Suite 500, Denver, CO 80202 303-312-6007 303-312-6064 (fax) CO, MT, ND, SD, UT, WY. IX U.S. EPA—Region 9, Air Division, 75 Hawthorne Street, San Francisco, CA 94105 415-744-1219 415-744-1076 (fax) AZ, CA, HI, NV, American Samoa, Guam. X U.S. EPA—Region 10, Office of Air Quality, 1200 Sixth Avenue, Seattle, WA 98101 (206) 553-4273 (206) 553-0110 (fax) 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). 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. 1 Similarly, the obligations of States and sources are unaffected by the reconsideration petition and the remand. 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. Table 2.—Status of State Plans I. States With EPA-Approved State Plans Alabama, Florida, Indiana, Mississippi, New Hampshire, West Virginia. II. Negative Declaration Submitted to EPA 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. III. Final State Plan Submitted to EPA Louisiana, Nashville/Davidson County in Tennessee, North Carolina, South Carolina, Puerto Rico. IV. Draft State Plan Submitted to EPA Allegheny County in Pennsylvania, Maryland, North Dakota, Ohio, Oklahoma, Virginia. 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 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 Element of the CISWI federal plan Location 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 Reporting 40 CFR 62.14670-62.14760. Progress Reports Section III.J of this preamble. 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 (NO X ), carbon monoxide (CO), and sulfur dioxide (SO 2 ). 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. 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 (§ 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 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 § 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 §§ 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 § 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 § 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 § 60.2025 of the NSPS and § 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 § 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 §§ 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 § 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 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 § 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 §§ 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 §§ 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 § 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 § 62.14540 are sufficient and requested that EPA remove the proposed requirements in § 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 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 § 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 § 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 § 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 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 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 For these pollutants You must meet these emission limitations a And determine compliance using these methods b Cadmium 0.004 mg/dscm EPA Method 29. Carbon Monoxide 157 ppm EPA Methods 10, 10A, or 10B. Dioxins/Furans, toxic equivalent (TEQ) basis 0.41 ng/dscm EPA Method 23. 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 volume EPA Method 7, 7A, 7C, 7D, or 7E. 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. Table 5.—Operating Limits or Existing CISWI Units Using Wet Scrubbers For these operating parameters You must establish these operating limits And monitor continuously using these recording times Charge rate Maximum charge rate Every hour. Pressure drop across the wet scrubber, or amperage to the wet scrubber Minimum pressure drop or amperage Every 15 minutes. 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 § 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 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 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 (§ 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 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 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 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. 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. 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. 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. 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. 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 effect in the area in which the source is located. 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 Submitting Title V Permit Applications If a CISWI unit is a major source or is part of a major source, and had commenced operation as of the effective date of the relevant title V permits program Then a complete title V application which covers the entire source 6 is due not later than 12 months (or 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). If a CISWI unit is a major source or is part of a major source but did not commence operation until after the relevant title V premits program became effective Then a complete title V application which covers the entire source is due not later than 12 months (or earlier if 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 is part of a nonmajor source, is subject to the CISWI NSPS (subpart CCCC of 40 CFR part 60), and had commenced operation as of December 1, 2000 Then a complete title V application 7 is due not later than 12 months after subpart CCCC was promulgated, i.e. , December 1, 2001 (or earlier if required by the title V permitting authority). 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 is part of a nonmajor source, is subject to the CISWI NSPS (subpart CCCC of 40 CFR part 60), but did not commence operation until after December 1, 2000 Then a complete title V application is due not later than 12 months (or earlier if 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 is part of a nonmajor source, and is subject to an EPA approved and effective State or Tribal section 111(d)/129 plan Then a complete title V application is due not later than 12 months (or earlier if required by the title V permitting authority) after the effective date of the EPA approved State or Tribal section 111(d)/129 plan. 8 See CAA section 503(c) and 40 CFR 70.5(a)(1)(i) and 71.5(a)(1)(i). In no event, however, can such an existing CISWI unit submit a complete title V application after December 1, 2003, and have it be considered timely. See CAA section 129(e) and 40 CFR 62.14835 of subpart III. If a CISWI unit is a nonmajor source or is part of a nonmajor source, and is subject to the CISWI Federal plan (subpart III of 40 CFR part 62) Then a complete title V application is due not later than 12 months (or earlier if required by the title V permitting authority) after the effective date of 40 CFR part 62, subpart III. See CAA section 503(c) and 40 CFR 70.5(a)(1)(i) and 71.5(a)(1)(i). In no event, however, can such an existing CISWI unit submit a complete title V application after December 1, 2003 and have it be considered timely. See CAA section 129(e) and 40 CFR 62.14835 of subpart III. If a CISWI unit is required to obtain a title V permit due to triggering more than one of the applicability criteria listed above or in 40 CFR 70.3(a) or 71.3(a) Then a complete title V application is due not later than 12 months (or earlier if required by the title V permitting authority) after the unit triggers the criterion which first causes the unit to be subject to title V. See CAA section 503(c) and 40 CFR 70.3(a) and (b), 70.5(a)(1), 71.3(a) and (b) and 71.5(a)(1). In no event, however, can an existing CISWI unit submit a complete title V application after December 1, 2003 and have it be considered timely. See CAA section 129(e) and 40 CFR 62.14835 of subpart III. Reopening Title V Permits If a CISWI unit is a major source or is part of a major source, is subject to the CISWI NSPS (subpart CCCC of 40 CFR part 60), and is covered by a title V permit with a remaining permit term of 3 or more years on December 1, 2000 Then the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of 40 CFR part 60, subpart CCCC not later than June 1, 2002. See CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and 71.7(f)(1)(i). If a CISWI unit is a major source or is part of a major source, is subject to an EPA approved and effective State or Tribal section 111(d)/129 plan for CISWI units, and is covered by a title V permit with a remaining permit term of 3 or more years on the effective date of the EPA approved section 111(d)/129 plan Then the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of this EPA approved and effective section 111(d)/129 plan not later than 18 months after the effective date of this plan. See CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and 71.7(f)(1)(i). If a CISWI unit is a major source or is part of a major source, is subject to the CISWI Federal plan (subpart III of 40 CFR part 62), and is covered by a title V permit with a remaining permit term of 3 or more years on the effective date of this Federal plan Then the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of subpart III of 40 CFR part 62 not later than 18 months after the effective date of the CISWI Federal plan. See CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and 71.7(f)(1)(i). Updating Existing Title V Permit Applications If a CISWI unit is subject to the CISWI NSPS (subpart CCCC of 40 CFR part 60), but first became subject to title V permitting prior to the promulgation of the NSPS, and the owner or operator of the unit has submitted a timely and complete title V 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 40 CFR part 60, subpart CCCC in accordance with 40 CFR 70.5(b) or 71.5(b). If a CISWI unit is subject to an EPA approved and effective State or Tribal section 111(d)/129 plan for CISWI units, but first became subject to title V permitting prior to the effective date of the section 111(d)/129 plan, and the owner or operator of the unit has submitted a timely and complete title V 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 the approved and effective section 111(d)/129 plan in accordance with 40 CFR 70.5(b) or 71.5(b). If a CISWI unit is subject to the CISWI Federal plan (subpart III of 40 CFR part 62), but first became subject to title V permitting prior to the effective date of this Federal plan, and the owner or operator of the unit has submitted a timely and complete title V 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 40 CFR part 62, subpart III in accordance with 40 CFR 70.5(b) or 71.5(b). Title V and Delegation of a Federal Plan For the sake of brevity, the discussion from the proposed Federal plan regarding title V and delegation of a Federal plan is not being repeated. See “Title V and Delegation of a Federal Plan” section of the proposed Federal plan for CISWI, November 25, 2002 (67 FR 70640, 70652). Nevertheless, the preamble language from this section in the proposed rule is hereby reaffirmed in this final rule. IX. Statutory and Executive Order Reviews This section addresses the following statutory and executive order administrative requirements: Executive Orders 12866, 13132, 13175, 13045 and 13211; Paperwork Reduction Act; Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act; Unfunded Mandates Reform Act; National Technology Transfer and Advancement Act; and the Congressional Review Act. Since today's action implements the CISWI emis [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-24004. Public record. Not legal advice.