# Federal Plan Requirements for Small Municipal Waste Combustion Units Constructed On or Before August 30, 1999

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URL: https://www.frixlaw.com/law-library/documents/fr%3A03-99

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 31, 2003
- **Citation:** 68 FR 5144

## Text

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[AD-FRL-7430-8]
RIN 2060-AJ46
Federal Plan Requirements for Small Municipal Waste Combustion Units Constructed On or Before August 30, 1999

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This action promulgates a Federal plan to implement emission guidelines for small municipal waste combustion (MWC) units (
i.e.
, units with a design combustion capacity of 35 to 250 tons per day of municipal waste) located in areas not covered by an approved State or tribal plan. The Federal plan is an interim action because on the effective date of an approved State plan or tribal plan, the Federal plan will no longer apply to small MWC units covered by the State or tribal plan. This Federal plan includes the same required elements as a State plan as specified in 40 CFR part 60, subpart B. These elements are: Identification of legal authority; identification of mechanisms for implementation; inventory of affected facilities; emissions inventory; emission limits; compliance schedules; public hearing requirements; reporting and recordkeeping requirements; and public progress reports.

EPA adopted emission guidelines for existing small MWC units on December 6, 2000. Existing small MWC units are those units for which construction was commenced on or before August 30, 1999. Sections 111 and 129 of the Clean Air Act (CAA) require States with existing small MWC units subject to the emission guidelines to submit plans to EPA 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 small MWC units subject to the emission guidelines on December 6, 2001. States without small MWC units subject to the emission guidelines must submit a negative declaration statement by this date. Following receipt of a State plan, EPA has up to 6 months to approve or disapprove the plan. If a State with an existing small MWC unit subject to the emission guidelines does not submit an approvable plan within 2 years of the promulgation of the emission guidelines (
i.e.
, December 6, 2002), sections 111(d) and 129 of the CAA require EPA to develop, implement, and enforce a Federal plan for small MWC units located in that State or Tribal jurisdiction. This Federal plan for small MWC units was proposed on June 14, 2001.

EFFECTIVE DATE:

This rule is effective on January 31, 2003. The incorporation by reference of certain publications listed in this rule are approved by the Director of the Federal Register as of January 31, 2003.

Judicial Review:
The EPA proposed this section 111(d) rule for small MWC units on June 14, 2001 (66 FR 32484). This action adopting a rule for small MWC 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 April 1, 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.

ADDRESSES:

Docket.
Docket No. A-2000-39 contains the supporting information for the small MWC Federal plan. Docket Nos. A-89-08, A-90-45, and A-98-18 contain the supporting information for the EPA's promulgation of emission guidelines for existing small MWC units. 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. The Center may be contacted by telephone 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
”.

FOR FURTHER INFORMATION CONTACT:

Mr. Lalit Banker at (919) 541-5420, 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:
banker.lalit@epa.gov.
For State specific information regarding implementation of this Federal plan, contact the appropriate Regional Office as shown in table 1 of the
SUPPLEMENTARY INFORMATION
section.

SUPPLEMENTARY INFORMATION:

Docket.
The docket is an organized and complete file of all the information considered by the EPA in the development of this Federal plan. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated Federal plan and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section 307(d)(7)(A) of the CAA.) The regulatory text and other materials related to this rulemaking are available for review in the docket or copies may be mailed on request from the Air Docket by calling (202) 566-1742. A reasonable fee may be charged for copying docket materials.

Public Comments.
The small MWC Federal plan was proposed on June 14, 2001, and two comments were received on the proposal. The comment letters are available in docket No. A-2000-39, along with a memorandum summarizing the comment letters and EPA's responses to the comments. No requests for a public hearing were received by EPA.

Worldwide Web (WWW).
A list of combustion related rules is available on the Combustion Group Web site on the EPA Technology Transfer Network Web site (TTN Web) at
http://www.epa.gov/ttn/atw/combust/list.html.
You may obtain
Federal Register
notices, supporting information, and docket indices for these combustion related rules.

Regional Office Contacts.
For information regarding the implementation of the small MWC Federal plan, contact the appropriate EPA Regional Office as shown in table 1.

Table 1.—EPA Regional Contacts for Small Municipal Waste Combustors

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)
AK, OR, WA, ID.

Outline.
The following outline shows the organization of the remainder of the
SUPPLEMENTARY INFORMATION
section of this preamble.

I. Background of Small MWC Regulations and Affected Facilities

A. Background of Small MWC Regulations

B. Regulated Entities

C. Status of State Plans

II. Required Elements of the Small MWC Federal Plan

III. Summary of the Comments and Changes Since Proposal

IV. Summary of the Federal Plan Emission Limits and Requirements

A. Subcategories of Small MWC Units

B. Emission Limits and Operating Practice Requirements

C. Compliance Schedules

D. Operator Training and Certification Requirements

E. Testing, Monitoring, Recordkeeping, and Reporting

V. 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

VI. Title V Operating Permits

A. Clarification to the Rule

B. Delegation of a Federal Plan

VII. Administrative Requirements

A. Executive Order 12866—Regulatory Planning and Review

B. Executive Order 13132—Federalism

C. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

D. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks

E. Unfunded Mandates Reform Act of 1995

F. Regulatory Flexibility Act (RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

G. Paperwork Reduction Act

H. National Technology Transfer and Advancement Act

I. Congressional Review Act

J. Executive Order 13211—Energy Effects

Tables

Table 1. EPA Regional Contacts for Small Municipal Waste Combustors

Table 2. Status of State Plans

Table 3. Required Elements of the Small MWC Federal Plan

Table 4. Deadlines for Title V Permits

I. Background of Small MWC Regulations and Affected Facilities

On December 6, 2000, EPA promulgated emission guidelines for existing small municipal waste combustion units (40 CFR part 60, subpart BBBB). Existing small MWC units are those units for which construction was commenced on or before August 30, 1999. States with existing small MWC units subject to the emission guidelines are required to submit to EPA a plan that implements and enforces the subpart BBBB emission guidelines within 1 year after promulgation of the emission guidelines, or by December 6, 2001. Section 129(b)(3) of the Act requires EPA to develop, implement, and enforce a Federal plan for small MWC units located in States that have not submitted an approvable plan within 2 years after promulgation of the guidelines, or by December 6, 2002. This action promulgates a Federal plan for small MWC units that are not covered by an EPA approved and effective State or Tribal plan. The small MWC Federal plan will become effective on December 6, 2002. The elements of the Federal plan are summarized in section II of this preamble.

A. Background of Small MWC Regulations

On December 19, 1995, EPA promulgated emission guidelines (40 CFR part 60, subpart Cb) for large and small MWC units. In 1997, the U.S. Court of Appeals for the D.C. Circuit vacated the emission guidelines as they applied to small MWC units (
Davis County Solid Waste Management and Recovery District
v.
EPA,
108 F. 3d 1454, D.C. Cir.1997). After this decision, EPA reproposed and promulgated emission guidelines for small MWC units (40 CFR part 60, subpart BBBB, promulgated on December 6, 2000). States or tribes with existing large MWC units subject to the subpart Cb emission guidelines were required to submit to EPA a State or tribal plan for those large units by December 19, 1996. To regulate large MWC units in areas without approved and effective State or tribal plans, EPA promulgated a Federal plan for large units (40 CFR part 62, subpart FFF) on November 12, 1998. The subpart FFF Federal plan and previously submitted State plans apply to only large MWC units. A separate Federal plan and separate State plans are required to implement the subpart BBBB emission guidelines for small MWC units. The Federal plan for small MWC units was proposed on June 14, 2001.

B. Regulated Entities

The small MWC Federal plan affects existing small MWC units that are not

regulated by an EPA approved and effective State or Tribal plan. A small MWC unit is defined as any MWC unit with a combustion design capacity of 35 to 250 tons per day of municipal solid waste (MSW) that commenced construction on or before August 30, 1999. This Federal plan affects the following categories of sources:

Category
NAICS codes
SIC codes
Examples of regulated entities

Industry, Federal government, and State/local/Tribal governments
562213, 92411
4953, 9511
Solid waste combustors or incinerators at waste-to-energy facilities that generate electricity or steam from the combustion of garbage (typically municipal waste); and solid waste combustors or incinerators at facilities that combust garbage (typically municipal waste) and do not recover energy from the waste.

This list is not intended to be exhaustive, but rather provides a guide regarding the entities potentially regulated by this Federal plan. The small MWC Federal plan primarily impacts facilities in North American Industrial Classification System (NAICS) codes 562213 and 92411, formerly Standard Industrial Classification (SIC) codes 4953 and 9511, respectively. Not all facilities classified under these codes will be affected. To determine whether a facility is regulated by this Federal plan, carefully examine the applicability criteria in §§ 62.15010 through 62.15035 of the Federal plan. If you have any questions regarding the applicability of this Federal plan to your small MWC unit contact the Regional Office listed in table 1.

Each small MWC unit will be subject to this Federal plan if any of the following is true on or after the effective date of the Federal plan:

(1) An applicable State or tribal plan has not become effective
1

;

1
The effective date of a State or tribal plan from EPA's perspective (for purposes of State or tribal law, a State or tribal plan may have an earlier effective date) is 30 days after the State or tribal plan final approval is published in the
Federal Register
if the final approval is via the regular regulatory procedure of proposal with opportunity for comment followed by promulgation. If the approval is by direct final rulemaking, the effective date of the State or tribal plan is 60 days after the approval is published in the
Federal Register
, if no adverse comments are received.

(2) An applicable State or tribal plan was in effect but was subsequently vacated in whole or in part; or

(3) An applicable State or tribal plan was in effect but was subsequently revised such that it is no longer as protective as the emission guidelines.

Once an approved State or tribal plan is in effect, the Federal plan will no longer apply to a small MWC unit covered by such plan. An approved State or tribal plan is a plan that 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 BBBB.

Today's adoption of this Federal plan does not preclude a State or tribe from submitting a State or tribal plan later. If a State or tribe submits a State or tribal plan after today's promulgation of the small MWC Federal plan, EPA will review and approve or disapprove the plan. Upon the effective date of EPA's approval of the State or tribal plan, the Federal plan will no longer apply, except those Federal plan provisions that may have been incorporated by reference under the section 111(d)/129 State or tribal plan, or delegated to the State by EPA.

If a small MWC unit was overlooked by a State and the State submitted a negative declaration letter, the small MWC unit will be subject to this Federal plan. The EPA believes that no small MWC units are located in Indian country. In the event that a small MWC unit is located in Indian country, the unit would be covered under this Federal plan, unless it is covered by an approved and effective tribal plan.

C. Status of State Plans

Twenty-two States have small MWC units and require State plans. (Depending on whether Pennsylvania's small MWC unit closes on schedule, Pennsylvania may not require a State plan.) A number of states have either submitted or are currently preparing their State plans. The EPA expects several State plans to be approved in the next few months. Table 2 summarizes the status of State plans as of today's date. The table is based on information provided by the EPA Regional Offices.

The following States have submitted State plans to the EPA: Connecticut, Florida, Maryland, Montana, New Hampshire, and Utah. The small MWC units located in these States will be subject to the Federal plan until the State plan is approved and becomes effective. Small MWC units located in States with an approved and effective State plan will be subject to the Federal plan only in the event that the State plan is subsequently disapproved by EPA, in whole or in part.

The EPA has not received a State plan from the following states that are believed to have small MWC units: Alaska, Massachusetts, Maine, Michigan, Minnesota, New Jersey, New York, North Carolina, Oklahoma, Oregon, Tennessee, Texas, Virginia, Washington, and Wisconsin. Small MWC units located in these States are subject to this Federal plan until a State plan applicable to small MWC units is approved by the EPA and becomes effective.

As of today's date, the following States have submitted negative declaration letters: Alabama, Arizona, California, Colorado, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Puerto Rico, Rhode Island, South Carolina, South Dakota, Vermont, West Virginia, and Wyoming. States that have not submitted a negative declaration letter but are believed to have no small MWC units include: American Samoa, Arkansas, Delaware, District of Columbia, Guam, Idaho, Louisiana, New Mexico, Northern Mariana Islands, and Virgin Islands. In the unlikely event that there are small MWC units located in any of these States, this Federal plan would automatically apply to them.

Table 2.—Status of State Plans

Region
State
Number of plants
Status

I
Connecticut
1
State plan has been submitted but is incomplete.

Massachusetts
2
No State plan submitted.

Maine
1
No State plan submitted.

New Hampshire
1
State plan has been submitted but is incomplete.

II
New Jersey
1
No State plan submitted.

New York
3
No State plan submitted.

III
Maryland
1
State plan has been submitted but is incomplete.

Pennsylvania
1
Plant closure by June 18, 2003.

Virginia
4
No State plan submitted

IV
Florida
2
State plan is being reviewed by EPA.

North Carolina
1
No State plan submitted.

Tennessee
1
No State plan submitted.

V
Michigan
2
No State plan submitted.

Minnesota
7
No State plan submitted.

Wisconsin
1
No State plan submitted.

VI
Oklahoma
1
No State plan submitted.

Texas
3
No State plan submitted.

VIII
Montana
1
State Plan is being reviewed by EPA.

Utah
1
State Plan is being reviewed by EPA.

X
Alaska
1
No State plan submitted.

Oregon
1
No State plan submitted.

Washington
3
No State plan submitted.

Part 62 of title 40 of the Code of Federal Regulations identifies the approval of section 111(d)/129 State or Tribal plans for designated pollutants and designated facilities in each State or area of Indian country. However, part 62 is updated only once a 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.

II. Required Elements of the Small MWC Federal Plan

Sections 111(d) and 129 of the CAA, as amended, 42 U.S.C. 7411(d) and 7429(b)(2), require States to develop and implement State plans for MWC units to implement and enforce the MWC emission guidelines. Subparts B and BBBB of 40 CFR part 60 require States to submit State plans that include specified elements. Because this Federal plan is being adopted in lieu of State plans, it includes the same essential elements: Identification of legal authority; identification of mechanisms for implementation; inventory of affected facilities; emission inventory; emission limits; compliance schedules; public hearing requirements; reporting and recordkeeping requirements; and public progress reports.

Each State plan element was discussed in detail as it relates to the Federal plan in the preamble to the proposed rule (66 FR 32484). Table 3 lists each element and identifies where it is located or codified. The EPA received written comments on the proposed Federal plan, which are presented in section III of this preamble. No requests for a public hearing were received by EPA.

Table 3.—Required Elements of the Small MWC Federal Plan

Required element of the small MWC federal plan
Location

Legal authority and enforcement mechanism
Section 129(b)(3) of the CAA.

Inventory of Affected MWC Units
Docket A-2000-39.

Inventory of Emissions
Docket A-2000-39.

Emission Limits
40 CFR 62.15155 through 62.15165.

Compliance Schedules
40 CFR 62.15040 through 62.15095.

Record of Public Hearings
No hearing was requested.

Testing, Monitoring, Recordkeeping, and Reporting
40 CFR 62.15170 through 62.15360.

Progress Reports
Section II.H of the proposal preamble (66 FR 32488).

III. Summary of Comments and Changes Since Proposal

In this section of the preamble, the EPA presents a brief summary of its responses to the public comments it received on the proposed small MWC Federal plan. Copies of the public comments and a memorandum responding to them can be found in Docket No. A-2000-39.

The EPA received only two comments on the proposed small MWC Federal plan. Both commenters requested the EPA delay promulgation of the small MWC Federal plan until ongoing litigation of the emission guidelines for small MWC units (40 CFR part 60, subpart BBBB) is resolved. The EPA decided not to delay promulgation of the Federal plan because, under sections 111 and 129 of the CAA, the EPA is required to promulgate a Federal plan applicable to units located in States which have not submitted an approvable State plan within two years of EPA's promulgation of an emission guideline. Since this Federal plan implements the emission guidelines for small MWC units not covered by an EPA approved and effective State or tribal plan, this Federal plan will be amended, as necessary, for any future amendments of subpart BBBB.

No comments were received on the emission limits or other requirements of the Federal plan, and no changes were made to the Federal plan.

IV. Summary of the Federal Plan Limits and Requirements

The small MWC Federal plan contains the same subcategories, emission limits, and other requirements as the emission guidelines promulgated on December 6, 2000 (65 FR 76378). Refer to the attached regulation, 40 CFR part 62, subpart JJJ for the entire set of requirements. The major requirements are summarized in the following sections.

A. Subcategories of Small MWC Units

The small MWC unit population is subcategorized based on aggregate capacity of the plant where the individual small MWC unit is located. The resulting subcategories are as follows: Class I units are small MWC units located at plants with an aggregate plant capacity greater than 250 tons per day of municipal solid waste (MSW); Class II units are small MWC units located at plants with an aggregate plant capacity less than or equal to 250 tons per day of MSW.

B. Emission Limits and Operating Practice Requirements

In accordance with section 129(a)(4) of the Clean Air Act, the Federal plan contains emission limits for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, sulfur dioxide, hydrogen chloride, nitrogen oxides, and carbon monoxide. The emission limits for Class I and Class II small MWC units are listed in tables 2 through 5 of subpart JJJ. The emission limits in the small MWC Federal plan are the same as those contained in the emission guidelines (40 CFR part 60, subpart BBBB). In addition to emission limits, the Federal plan contains the emission guideline requirements for unit operating load, flue gas temperature at the particulate matter control device inlet, and carbon feed rate as part of the required good combustion practices. The Federal plan also includes requirements for the control of fugitive ash emissions.

C. Compliance Schedules

The Federal plan includes required increments of progress for MWC units with compliance schedules that are longer than 12 months. The increments of progress in the Federal plan are the same as those in the emission guidelines and the primary mechanism for ensuring progress toward final compliance. Each increment of progress has a specified date for achievement.

This Federal plan includes five increments of progress for Class I units and two increments of progress for Class II units. The increments of progress for Class I units are: Submitting a final control plan; awarding contracts for control systems or process modifications or orders for purchase of components; beginning on-site construction or installation of the air pollution control device(s) or process changes; completing on-site construction or installation of the air pollution control device(s) or process changes; and final compliance. For Class II units, dates for only the first and last increments are specified.

The MWC owner or operator is responsible for meeting each of the increments of progress for each MWC unit no later than the applicable date. The owner or operator must notify the EPA Regional Office as each increment of progress is achieved (or missed). (
See
table 1 under the
Supplementary Information
section of this notice for a list of Regional Offices.) Class I and Class II small MWC units are required to follow the generic compliance schedule in table 1 of subpart JJJ, unless the State or owner/operator submitted a site-specific compliance schedule that was approved by EPA and included in table 9 of subpart JJJ. Under the generic compliance schedule, Class I units are required to reach final compliance by November 6, 2005. Class II units are required to reach final compliance by May 6, 2005.

In the proposed Federal plan, EPA provided States or MWC owners or operators with the opportunity to submit to EPA a site-specific compliance schedule as negotiated between the State and an MWC owner or operator. This site-specific compliance schedule was included by EPA to allow flexibility for the award contract date, the start construction date, and the finish construction date. Site-specific schedules for Dutchess County RRF and Islip-Mac Arthur RRF in New York State, and Harrisburg Materials, Energy, Recycling and Recovery Facility in Pennsylvania have been included in table 9 of the final Federal plan.

D. Operator Training and Certification Requirements

In the Federal plan, ASME operator certification and the EPA MWC operator training course are required. The emission guidelines require ASME or a comparable State program for operator certification for chief facility operators and shift supervisors, and an EPA or comparable State MWC operator training course for chief facility operators. Therefore, the proposed Federal plan included the opportunity for States to submit a comparable State program for operator certification and comparable State MWC training courses for inclusion in the final Federal plan. The States were required to submit this information before November 14, 2001. As of June 5, 2002, no States have submitted a comparable State program for operator certification or comparable State MWC training courses, so no such programs are included in the final Federal plan.

E. Testing, Monitoring, Recordkeeping, and Reporting

The small MWC Federal plan includes the same testing, monitoring, recordkeeping, and reporting requirements specified in 40 CFR part 60, subpart BBBB. Small MWC units subject to this Federal plan are required to conduct initial and annual stack testing to measure the emission levels of dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash. Continuous emission monitoring systems are required for monitoring oxygen (or carbon dioxide), sulfur dioxide, carbon monoxide, and nitrogen oxides. The owner or operator must also monitor the load level, the temperature of the flue gases at the inlet to the particulate matter air pollution control device, and the carbon feed rate if activated carbon is used to control dioxins/furans or mercury emissions.

In addition to the testing and monitoring requirements, the Federal plan includes recordkeeping and reporting requirements, which are intended to document compliance with the emission limits and operating requirements.

V. Implementation of the Federal Plan and Delegation

A. Background of Authority

Under sections 111(d) and 129(b) of the CAA, EPA is required to adopt emission guidelines that are applicable to existing solid waste incineration sources. These emission guidelines are not enforceable until a Federal plan or an EPA-approved State or tribal plan becomes effective. As discussed above, the Federal plan regulates small MWC units in a State or tribal area that does not have an EPA-approved plan.

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 and local agencies take the primary responsibility for ensuring that the emission limitations and other requirements in

the emission guidelines are achieved. Also, in section 111(d) of the CAA, Congress explicitly required that EPA establish procedures that are similar to those under section 110(c) for State Implementation Plans. Although Congress required 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 publication of this 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 EPA's preferred outcome since EPA believes that State and local agencies not only have the responsibility to implement and enforce the emission guidelines, but also have the practical knowledge and enforcement resources critical to achieving the highest rate of compliance. For these reasons, EPA will do all that it can to expedite delegation of the Federal plan to State and local agencies, whenever possible.

The EPA also believes that Indian tribes are the primary parties responsible for regulating air quality within Indian country, if they desire to do so.
See
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 1994 memorandum (“EPA Indian Policy,” signed by Carol M. Browner, Administrator of EPA, dated March 14, 1994).

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 specified in Delegation No. 7-139, “Implementation and Enforcement of sections 111(d)(2) and 111(d)(2)/129(b)(3) Federal Plans”.
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. 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 EPA will set forth the terms and conditions of the delegation, the effective date of the agreement, and will also serve as the mechanism to transfer authority. Upon signature of the agreement, the appropriate EPA Regional Office will publish an approval notice in the
Federal Register
, thereby incorporating the delegation of authority into the appropriate subpart of 40 CFR part 62.

If authority is not delegated to a State or Indian tribe, EPA will implement and enforce the Federal plan. Also, if a State or tribe fails to properly implement a delegated portion of the Federal plan, 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, EPA will retain and will not transfer to a State or tribe certain authorities which 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 State, tribal or local agencies: approval of alternative non-opacity emission standards, approval of alternative opacity standard, approval of major alternatives to test methods, approval of major alternatives to monitoring, waiver of recordkeeping, and approval of exemption to operating practice requirements in § 62.15145(e)(5).

C. Mechanisms for Transferring Authority

There are two mechanisms for transferring implementation authority to State or tribal agencies: When EPA approves a State or tribal plan after the Federal plan is in effect; and if a State or tribe does not submit or obtain approval of its own plan, EPA may delegate to a State or tribe the authority to implement the Federal plan. Both of these options are described in more detail below.

1. State or Tribe Submits a Plan After Small MWC Units Located in the Area Are Subject to the Federal Plan

After small MWC 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 EPA. If EPA determines that the State or tribal plan is as protective as the emission guidelines, EPA will approve the State or tribal plan. If EPA determines that the plan is not as protective as the emission guidelines, EPA will disapprove the plan and the small MWC units proposed to be covered in the State or tribal plan will remain subject to the Federal plan until a State or tribal plan covering those small MWC units is approved and effective.

Upon the effective date of a State or tribal plan, the Federal plan will no longer apply to small MWC 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 Takes Delegation of the Federal Plan

The EPA, in its discretion, may delegate to State or tribal agencies the authority to implement the Federal plan. As discussed above, EPA believes that it is advantageous and the best use of resources for State agencies to agree to undertake, on EPA's behalf, the administrative and substantive role in implementing the Federal plan to the extent EPA decides it is appropriate and where authorized by State law. If a State requests delegation, EPA will generally delegate the entire Federal plan to the State agency. These functions include administration and oversight of compliance reporting and recordkeeping requirements, small MWC inspections, and preparation of draft notices of violation and enforcement. Enforcement authority can be delegated to State and tribal agencies, but EPA always retains Federal enforcement authority. 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 (TAR) 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 a program they will adopt. Consistent with the approach of the TAR, EPA 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 authorized by tribal law. Both States, or tribal agencies, that have taken delegation, as well as EPA, will have responsibility for

bringing enforcement actions against sources violating Federal plan provisions. EPA recognizes, however, that tribes have limited criminal enforcement authority, and EPA will address in the delegation agreement with the tribe how criminal enforcement issues are referred to EPA.

VI. Title V Operating Permits

Sources subject to this small MWC 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 small MWC 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, 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 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 62.15400(c)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. EPA's interpretation allows section 129(e) to be read consistently with section 503(d) of the Act and 40 CFR 70.7(b) and 71.7(b). EPA's interpretation is also consistent with section 503(c) of the Act which requires sources to submit title V applications not later than 12 months after becoming subject to a title V permits programs. 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 EPA's interpretation, existing small MWC 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 BBBB 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 small MWC units is 36 months following promulgation of 40 CFR part 60, subpart BBBB,
i.e.
, December 6, 2003. Therefore, December 6, 2003, is the latest possible date by which complete applications for existing small MWC units can be submitted and still be considered timely. This date applies regardless of when the small MWC Federal plan becomes effective or when an EPA approved section 111(d)/129 plan for existing small MWC units becomes effective. If, however, an earlier application deadline applies to an existing small MWC 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 small MWC 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 small MWC 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.

An application deadline earlier than either of the two dates noted above,
i.e.
, December 6, 2003, or not later than 12 months after the effective date of this Federal plan, may apply to an existing small MWC unit if it is subject to title V for more than one reason. For example, an existing small MWC 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 small MWC 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 3 or more years on the effective date of this Federal plan, then the owner or operator will receive from the permitting authority a notice of intent to reopen the source's title V permit to include the requirements of this Federal plan. Reopenings required for such small MWC 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 small MWC 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.

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.

5

See
CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and 71.7(f)(1)(i). Owners or operators of small MWC 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 4 to help clarify when small MWC units (even those not subject to this Federal plan) must apply for a title V permit. While table 4 provides specific information relative to small MWC 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 EPA and becomes effective, etc. Lastly, table 4 takes into account that as of the promulgation date,
i.e.
, December 6, 2000, for the NSPS (subpart AAAA of part 60) and emission guidelines (subpart BBBB of part 60) for small MWC 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.

Table 4.—Deadlines for Title V Permits

Submitting Title V Permit Applications

If a small MWC unit is a major source or is part of a major source, and had commenced operation as of the effective date of relevant title V permits program

then a complete title V application which covers the entire source
a
is due not later than 12 months (or if required by the title V permitting authority) after the effective date of the relevant title V permits program.
See
CAA section 503(c) and 40 CFR commenced 70.4(b)(11)(i), 71.4(i)(1), 70.5(a)(1)(i) and 71.5(a)(1)(i).

If a small MWC unit is a major source or is part of a major source, but did not commence operation until after the relevant title V permits 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 small MWC unit is a nonmajor source or is part of a nonmajor source, is subject to the small MWC NSPS (subpart AAAA of 40 CFR part 60), and had commenced operation as of December 6, 2000

then a complete title V application
b
is due not later than 12 months after subpart AAAA was promulgated,
i.e.
, December 6, 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 small MWC unit is a nonmajor source or is part of a nonmajor source, is subject to the small MWC NSPS (subpart AAAA of 40 CFR part 60), but did not commence operation until after December 6, 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 small MWC 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.
c

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 small MWC unit submit a complete title V application after December 6, 2003, and have it be considered timely.
See
CAA section 129(e) and section or tribal 62.15400 of subpart JJJ.

If a small MWC unit is nonmajor source or is part of a nonmajor source, and is subject to the small MWC Federal plan (subpart JJJ 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 JJJ.
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 small MWC unit submit a complete title V application after December 6, 2003, and have it considered timely.
See
CAA section 129(e) and section 62.15400 of subpart JJJ.

If a small MWC unit is required to obtain a title 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 caused 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 small MWC unit submit a complete title V application after December 6, 2003, and have it be considered timely.
See
CAA section 129(e) and section 62.15400 of subpart JJJ.

Reopening Title V Permits

If a small MWC unit is a major source or is part of a major source, is subject to the small MWC NSPS (subpart AAAA 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 6, 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 AAAA not later than June 6, 2002.
See
CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and 71.7(f)(1)(i).

If a small MWC 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 small MWC units, and is covered by a title V permit with a remaining permit team 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 small MWC unit is a major source or is part of a major source, is subject to the small MWC Federal plan (subpart JJJ 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 JJJ of 40 CFR part 62 not later than 18 months after the effective date of the small MWC 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 small MWC unit is subject to the small MWC NSPS (subpart AAAA of 40 CFR part 60), but first became subject to title V permitting prior to the promulgation of this 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 AAAA in accordance with 40 CFR 70.5(b) or 71.5(b).

If a small MWC unit is subject to an EPA approved and effective State or tribal section 111(d)/129 plan for small MWC 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 small MWC unit is subject to the small MWC Federal plan (subpart JJJ 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 JJJ in accordance with 40 CFR 70.5(b) or 71.5(b).

a
A title V application from a major source must address all emission units at the title V source, not just the section 129 emission unit.
See
40 CFR 70.3(c)(1) and 71.3(c)(1). (For information on aggregating emission 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.)

b
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 emission units which caused the source to be subject to title V. The requirements which trigger 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, not just the requirements which caused the source to be subject to title V.
See
footnote #2 in
Change to Definition of Major Source
rule, November 27, 2001 (66 FR 59161, 59163).

c
If a small MWC 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 small MWC unit is still required to file a complete title V application consistent with the application deadlines for units subject to the small MWC Federal plan.

A. Clarification to the Rule

The language in § 62.15020(k) regarding air curtain incinerators has been clarified to be consistent with the language in § 62.15395 regarding title V permitting. In that air curtain incinerators are subject to this subpart, they are required to apply for and obtain a title V permit consistent with the requirements of §§ 62.15395 and 62.15400. As a result, the language in § 62.15020(k) has been modified to specify that air curtain incinerators which meet the definition of air curtain incinerator found in § 62.15410 must meet only the requirements of §§ 62.15365 through 62.15385 and the operating permit requirements of this subpart.

B. Delegation of a Federal Plan

During the development of the Federal plan for Hospital/Medical/Infectious Waste Incinerators (HMIWI), a State agency raised the question of whether a title V operating permits program could be used as a mechanism for transferring the authority to implement and enforce section 111/129 requirements from EPA to State and local agencies.
See
“Transfer of Authority” section of final Federal plan for HMIWI, August 15, 2000 (65 FR 49868, 49873). The State agency noted that the proposal for that rulemaking described two mechanisms for transferring authority to State and local agencies following promulgation of the Federal plan. Those two mechanisms were: (1) The 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 and enforce the HMIWI Federal plan. The State asked EPA to recognize the title V operating permits program as a third mechanism for transferring authority to State and local agencies. The commenter said that State and local agencies implement title V programs and that title V permits must include the requirements of the Federal plan. The commenter concluded that title V permitting authorities already have implementation responsibility for the Federal plan through their title V permits programs, regardless of whether the authority to implement the Federal plan is delegated to the State or local agency.

In its response to the State, the EPA explained why the issuance of a title V permit is not equivalent to the approval of a State plan or delegation of a Federal plan by focusing on situations in which a title V permitting authority without delegation of a Federal plan could not

implement and enforce section 111/129 requirements. This situation would arise any time a title V permit was not in effect for a source subject to the section 111/129 Federal plan or where the permit did not contain the applicable section 111/129 requirements. For example, a title V source may be allowed to operate without a title V permit for a number of years in some cases between the time the source first triggers the requirement to apply for a permit and the issuance of the permit. The preamble to the final HMIWI Federal plan also noted that a source with a title V permit with a permit term less than 3 years is not required by part 70 to have its permit reopened by a State or tribe to include new applicable requirements such as the HMIWI standard.
6

See
40 CFR 70.7(f)(1)(i).

6
An owner or operator of a source subject to a section 111/129 Federal plan remains subject to, and must act in compliance with, 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.

In addition to the explanation provided in the preamble to the final HMIWI Federal plan, there are additional State implementation and enforcement gaps which would not be addressed by implementing and enforcing the section 111/129 standard through a title V permit. The following is an example of such a gap: title V permits are not permanent. With two exceptions, all permits must be renewed at least every 5 years.
7

Although 40 CFR 70.4(b)(10) requires States to provide that a permit or the terms and conditions of a permit may not expire until the permit is renewed, this requirement only applies if a timely and complete application for a renewal permit has been submitted by the source, creating a potential gap. In contrast to this example, the two mechanisms that EPA has identified for transferring authority ensure that a State or tribe can implement and enforce the section 111/129 standards at all times.

7
Under 40 CFR 70.4(b)(3)(iv), permitting authorities are allowed to issue permits for solid waste incineration units combusting municipal waste subject to standards under section 129(e) of the Act for a period not to exceed 12 years, provided that the permits are reviewed at least every 5 years. Permits with acid rain provisions must be issued for a fixed term of 5 years; shorter terms for such permits are not allowed.

Legally, delegation of a standard or requirement results in a delegated State or tribe standing in for EPA as a matter of Federal law. This means that obligations a source may have to the EPA under a federally promulgated standard become obligations to a State (except for functions that the EPA retains for itself) upon delegation.
8

Although a State or tribe may have the authority to incorporate section 111/129 requirements into its title V permits, and implement and enforce these requirements in these permits without first taking delegation of the section 111/129 Federal plan, the State or tribe is not standing in for EPA as a matter of Federal law in this situation. Where a State or tribe does not take delegation of a section 111/129 Federal plan, obligations that a source has to EPA under the Federal plan continue after a title V permit is issued to the source. As a result, the EPA continues to maintain that an approved part 70 operating permits program cannot be used as a mechanism to transfer the authority to implement and enforce the Federal plan from the EPA to a State or tribe.

8
If the Administrator chooses to retain certain authorities under a standard, those authorities cannot be delegated,
e.g.,
approval of major alternatives to test methods.

As mentioned above, a State or tribe may have the authority under State or tribal law to incorporate section 111/129 requirements into its title V permits, and implement and enforce these requirements in that context without first taking delegation of the section 111/129 Federal plan.
9

Some States or tribes, however, may not be able to implement and enforce a section 111/129 standard in a title V permit until the section 111/129 standard has been delegated. In these situations, a State or tribe should not issue a part 70 permit to a source subject to a Federal plan before taking delegation of the section 111/129 Federal plan.

9
The EPA interprets the phrase “assure complaince” in section 502(b)(5)(A) to mean that permitting authorities will implement and enforce each applicable standard, regulation, or requirement which must be included in the title V permits the permitting authorities issue.
See
definition of “applicable requirement” in 40 CFR 70.2.
See also
40 CFR 70.4(b)(3)(i) and 70.6(a)(1).

If a State or tribe can provide an Attorney General's (AG's) opinion delineating its authority to incorporate section 111/129 requirements into its title V permits, and then implement and enforce these requirements through its title V permits without first taking delegation of the requirements, then a State or Tribe does not need to take delegation of the section 111/129 requirements for purposes of title V permitting.
10

In practical terms, without approval of a State or tribal plan, delegation of a Federal plan, or an adequate AG's opinion, States and tribes with approved part 70 permitting programs open themselves up to potential questions regarding their authority to issue permits containing section 111/129 requirements and to assure compliance with these requirements. Such questions could lead to the issuance of a notice of deficiency for a State's or tribe's part 70 program. As a result, prior to a State or tribal permitting authority drafting a part 70 permit for a source subject to a section 111/129 Federal plan, the State or tribe, EPA Regional Office, and source in question are advised to ensure that delegation of the relevant Federal plan has taken place or that the permitting authority has provided to the EPA Regional Office an adequate AG's opinion.

10
It is important to note that an AG's opinion submitted at the time of initial title V program apporoval is sufficient if it demonstrates that a State or tribe has adequate authority to incorporate section 111/129 requirements into its title V permits, and to implement and enforce these requirements through its title V permits without delegation.

In addition, if a permitting authority chooses to rely on an AG's opinion and not take delegation of a Federal plan, a section 111/129 source subject to the Federal plan in that State must simultaneously submit to both EPA and the State or tribe all reports required by the standard to be submitted to the EPA. Given that these reports are necessary to implement and enforce the section 111/129 requirements when they have been included in title V permits, the permitting authority needs to receive these reports at the same time as the EPA.

In the situation where a permitting authority chooses to rely on an AG's opinion and not take delegation of a Federal plan, EPA Regional Offices will be responsible for implementing and enforcing section 111/129 requirements outside of any title V permits. Moreover, in this situation, EPA Regional Offices will continue to be responsible for developing progress reports, entering emissions data into the Aerometric Information Retrieval System (AIRS)/AIRS Facility Subsystem (AFS), and conducting any other administrative functions required under this Federal plan or any other section 111/129 Federal plan.
See
section II.J. of the proposed Federal plan for HMIWI, July 6, 1999 (64 FR 36426, 36431); 40 CFR 60.25(e); and Appendix D of 40 CFR part 60.

It is important to note that the EPA is not using its authority under 40 CFR 70.4(i)(3) to request that all States and tribes which do not take delegation of this Federal plan submit supplemental AG's opinions at this time. However, the EPA Regional Offices shall request, and permitting authorities shall provide, such opinions when the EPA questions a State's or tribe's authority to incorporate section 111/129

requirements into a title V permit, and implement and enforce these requirements in that context without delegation.

Lastly, the EPA would like to correct and clarify the following sentences from the “Transfer of Authority” section of the preamble to the final HMIWI Federal plan (65 FR 49868, 49873): “Prior to delegation, only the EPA will have enforcement authority. In neither instance does the title V permit status of a source affect the enforcement responsibility of EPA and the State or tribal permitting authorities.” In situations where a State or tribe is subject to a section 111/129 Federal plan and does not take delegation of the Federal plan, the following applies: Prior to delegation, only EPA can implement and enforce section 111/129 requirements outside of a title V permit. Whenever there is a title V permit in effect which includes section 111/129 requirements, however, EPA and the State or tribe have dual authority to implement and enforce the section 111/129 requirements in the title V permit. When a State or tribe has not taken delegation of a section 111/129 Federal plan, the previous sentence is relevant only in situations where a State or tribe has the authority to incorporate section 111/129 requirements into title V permits, and to implement and enforce these requirements in title V permits without delegation.

VII. Administrative Requirements

This section addresses the following administrative requirements: Regulatory Planning and Review; Federalism; Consultation and Coordination with Indian Tribal Governments; Protection of Children from Environmental Health Risks and Safety Rules; Unfunded Mandates Reform Act of 1995; Regulatory Flexibility Act as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996; Paperwork Reduction Act; National Technology Transfer and Advancement Act; Congressional Review Act; and Energy Effects. Many of these administrative requirements were addressed in the preamble to the small MWC emission guidelines (65 FR 76378). Since this Federal plan merely implements the emission guidelines promulgated on December 6, 2000, and does not impose any new requirements, many of the administrative requirements refer to the administrative requirements in the preamble to the small MWC emission guidelines.

A. Executive Order 12866—Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant,” and therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

1. Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The emission guidelines promulgated on December 6, 2000, are projected to have an impact of approximately $68 million annually (Docket No. A-98-18). This Federal plan merely implements those emission guidelines, and does not impose any new requirements. Therefore, EPA has determined that this Federal plan is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

B. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law, unless EPA consults with State and local officials early in the process of developing the regulation.

This Federal plan does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The States have the primary responsibility for negotiating compliance schedules and incorporating the emission limits into a State plan. Since sources are only covered by a Federal plan if an EPA approved and effective State plan is not in place, the Federal plan does not add substantial additional costs. Thus, the requirements of section 6 of the Executive Order do not apply to this Federal plan.

C. Executive Order 13175—Consultation and Coordination with Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

The EPA believes that no small MWC units are located in Indian country. As a result, this final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

D. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that is determined to be “economically significant” as defined under Executive Order 12866 and concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This Federal plan is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because it is based on technology performance and not on health and safety risks.

E. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, or tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that this Federal plan does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or the private sector in any 1 year. The Federal plan merely implements the small MWC emission guidelines and does not impose any new requirements. The Environmental Impact Assessment (EIA) for the small municipal waste combustor emission guidelines (Docket No. A-98-18) shows that the total annual costs of the emission guidelines is about $68 million per year (in 1997 dollars), starting on the fifth year after the emission guidelines are promulgated. The Federal plan will apply to only a small subset of the units considered in the EIA for the emission guidelines. Thus, this Federal plan is not subject to the requirements of sections 202 and 205 of UMRA. Although the emission guidelines were not subject to UMRA, EPA prepared a cost-benefit analysis under section 202 of UMRA for the 1995 emission guidelines. For a discussion of how EPA complied with UMRA for the 1995 emission guidelines, including its extensive consultations with State and local governments, see the preamble to the 1995 emission guidelines (60 FR 65405-65412, December 19, 1995). Because the emission guidelines are equivalent to the 1995 emission guidelines, no additional consultations were necessary during the reestablishment of emission guidelines for small MWC units. However, public comments were solicited in the process of reestablishing the small MWC emission guidelines and in proposing the Federal plan, providing the opportunity for input from state and local governments and small entities.

F. Regulatory Flexibility Act (RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

The Regulatory Flexibility Act (RFA) generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of the emission guidelines on small entities, a small entity is defined as:

1. A small business in this industry that has a gross annual revenue less than $6 million;

2. A small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or

3. A small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the Federal plan on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The EPA expects State plans to affect many small MWC units before the final small MWC Federal plan becomes effective. As State plans are submitted and become effective, the Federal plan no longer applies. Therefore, the impact of this Federal plan is expected to be less than the impact identified in developing the MWC emission guidelines.

EPA's analysis indicates eight existing small MWC units (operated by one small business and seven small governments) would be subject to the emission guidelines. In the analysis for the MWC units that are considered small entities, EPA calculated compliance costs as a percentage of sales for business and a percentage of income (total household income) for governments. The average estimated annual compliance cost as a percentage of income is 0.03 percent for the seven small government entities and 39 percent for the one small business. Among the seven potentially affected government entities, the maximum compliance cost was 0.25 percent.

Although this Federal plan will not have a significant economic impact on a substantial number of small entities, EPA has tried to reduce the impact of

the emission guidelines and this Federal plan on small entities by establishing different requirements for Class I and Class II MWC units and establishing provisions for less frequent testing for small Class II units. In addition, EPA involved representatives of small entities in the development of the emission guidelines. For a summary of the actions that EPA took to involve small entities and their representatives in the development of the emission guidelines, refer to the discussion of the Unfunded Mandates Reform Act in section VII.E.

G. Paperwork Reduction Act

The OMB has approved the information collection requirements in the emission guidelines under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
et seq
and has assigned OMB control number 2060-0424.

The information will be used to ensure that the small MWC unit Federal plan requirements are implemented properly and are complied with on a continuous basis. Records and reports are necessary to identify small MWC units that might not be in compliance with the small MWC unit Federal plan. Based on reported information, the implementing agency will decide which small MWC units should be inspected and what records or processes should be inspected. Records that owners and operators of small MWC units maintain indicate whether personnel are operating and maintaining control equipment properly.

These recordkeeping and reporting requirements are specifically authorized by sections 114 and 129 of the CAA (42 U.S.C. 7414). All information submitted to the EPA for which a claim of confidentiality is made will be safeguarded according to EPA policies in 40 CFR part 2, subpart B, Confidentiality of Business Information.

The emission guidelines are projected to affect approximately 90 small MWC units located at 41 plants. The estimated average annual burden for industry for the first 3 years after implementation of the emission guidelines would be 1,297 person-hours annually. There will be no capital costs for monitoring or recordkeeping during the first 3 years. The estimated average annual burden, over the first 3 years, for the implementing agency would be 773 hours with a cost of $30,869 (including travel expenses) per year. The Federal plan will apply to only a subset of the units expected to be affected by the emission guidelines.

Burden means total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the agency displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. The EPA is amending the table in 40 CFR part 9 of currently approved ICR control numbers issued by OMB for various regulations to list the information collection requirements contained in this Federal plan.

H. National Technology Transfer and Advancement Act

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

This final rule involves technical standards. This Federal Plan uses EPA Methods 1, 3, 3A, 5, 5D, 9, 10, 22, 23, 26, 26A, 29, and Performance Specifications (PS) 1, 2, 3, and 4A. Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods/performance specifications. No applicable voluntary consensus standards were identified for EPA Methods 9, 22, PS 3, and PS 4A. The search and review results have been documented and are placed in the docket No. A-2000-39 for this plan.

Two voluntary consensus standards were identified as applicable and EPA has used them in this plan. One voluntary consensus standard was identified as applicable to PS 1. The standard ASTM D6216 (1998), “Standard Practice for Opacity Monitor Manufacturers to Certify Conformance with Design and Performance Specifications,” has been incorporated by reference into PS 1. The PS 1 rule was published in the
Federal Register
on August 10, 2000.

Another voluntary consensus standard, ASTM D4536-96 “Particulate (Matter) Modified High Volume,” has been adopted as an alternative to the sampling equipment and procedures in Methods 5 or 17 in conducting emissions testing of positive pressure fabric filter control devices. The ASTM D4536-96 equipment and procedures will be used in conjunction with the sample traverse and calculations as described in Method 5D for this application.

Three voluntary consensus standards have already been incorporated by reference into § 60.17. One consensus standard by the American Society of Mechanical Engineers (ASME) was identified for use in this plan for the measurement of MWC unit load level (steam output). The EPA believes this standard is practical to use in this plan as the method to measure MWC unit load. The EPA has already incorporated by reference (IBR) “ASME Power Test Codes: Test Code for Steam Generating Units, Power Test Code 4.1—1964 (R1991)” in 60.17 paragraphs (h)(1), (h)(2), and (h)(3).

A second consensus standard by ASME was identified for potential use in this plan for designing, constructing, installing, calibrating, and using nozzles and orifices. The EPA believes this standard is practical to use for the design, construction, installation, calibration, and use of nozzles and orifices. The EPA has already incorporated by reference (IBR) “American Society of Mechanical Engineers Interim Supplement 19.5 on Instruments and Apparatus: Application, Part II of Fluid Meters, 6th edition (1971)” in § 60.17, paragraphs (h)(1), (h)(2), and (h)(3).

A third consensus standard by ASME (QRO-1-1994) was identified for use for MWC plant operator certification requirements instead of developing new operator certification procedures. The EPA believes this standard is practical to use in the emission guidelines that require a chief facility operator and shift supervisor to successfully complete the

operator certification procedures developed by ASME. The EPA has already incorporated by reference (IBR) (QRO-1-1994) in § 60.17, paragraphs (h)(1), (h)(2), and (h)(3).

In addition to the voluntary consensus standards identified above, EPA identified 21 other voluntary consensus standards for emission measurement procedures. The EPA determined that 17 of these 21 standards were impractical alternatives to EPA test methods/performance specifications for the purposes of this Federal plan. Therefore, EPA has not adopted these standards today. The reasons for this determination for the 17 methods are discussed below.

The European standard EN 1911-1,2,3 (1998), “Stationary Source Emissions—Manual Method of Determination of HCl—Part 1: Sampling of Gases Ratified European Text—Part 2: Gaseous Compounds Absorption Ratified European Text—Part 3: Adsorption Solutions Analysis and Calculation Ratified European Text,” is impractical as an alternative to EPA Methods 26 and 26A. Part 3 of this standard cannot be considered equivalent to EPA Method 26 or 26A because the sample absorbing solution (water) would be expected to capture both HCl and chlorine gas, if present, without the ability to distinguish between the two. The EPA Methods 26 and 26A use an acidified absorbing solution to first separate HCl and chlorine gas so that they can be selectively absorbed, analyzed, and reported separately. In addition, in EN 1911 the absorption efficiency for chlorine gas would be expected to vary as the pH of the water changed during sampling.

Three standards: ASTM D4358-94 (1999), “Standard Test Method for Lead and Chromium in Air Particulate Filter Samples of Lead Chromate Type Pigment Dusts by Atomic Absorption Spectroscopy;” ASTM E1741-95 (1995), “Standard Practice for Preparation of Airborne Particulate Lead Samples Collected During Abatement and Construction Activities for Subsequent Analysis by Atomic Spectrometry;” and ASTM E1979-98 (1998), “Standard Practice for Ultrasonic Extraction of Paint, Dust, Soil, and Air Samples for Subsequent Determination of Lead,” are impractical as alternatives to EPA Methods 12 and 29 in this Federal plan. These ASTM standards do not require the use of glass fiber filters as in EPA Method 12 and require the use of significantly different digestion procedures that appear to be more mild than the EPA Method 12 digestion procedure. For these reasons, these ASTM standards cannot be considered equivalent to EPA Method 12. Also, the subject ASTM standards do not require the use of hydrogen fluoride (HF) as in EPA Method 29 and, therefore, they cannot be used for the preparation, digestion, and analysis of Method 29 samples. Additionally, Method 29 requires the use of a glass fiber filter, whereas these three ASTM standards require cellulose filters and other probable nonglass fiber media which cannot be considered equivalent to EPA Method 29.

The following nine methods are impractical alternatives to EPA test methods/performance specifications for the purposes of this plan because they are too general, too broad, or not sufficiently detailed to assure compliance with EPA regulatory requirements: ASTM D3154-91 (1995), “Standard Method for Average Velocity in a Duct (Pitot Tube Method),” for EPA Methods 1, 2, 3B, and 4; ASME C00031 or PTC 19-10-1981—part 10, “Flue and Exhaust Gas Analyses,” for EPA Method 3; ASTM D5835-95, “Standard Practice for Sampling Stationary Source Emissions, for Automated Determination of Gas Concentration,” for EPA Method 3A; ISO 10396:1993, “Stationary Source Emissions: Sampling for the Automated Determination of Gas Concentrations,” for EPA Method 3A; CAN/CSA Z223.2-M86(1986), “Method for the Continuous Measurement of Oxygen, Carbon Dioxide, Carbon Monoxide, Sulphur Dioxide, and Oxides of Nitrogen in Enclosed Combustion Flue Gas Streams,” for EPA Method 3A; CAN/CSA Z223.21-M1978, “Method for the Measurement of Carbon Monoxide: 3—Method of Analysis by Non-Dispersive Infrared Spectrometry,” for EPA Methods 10 and 10A; European Committee for Standardization (CEN) EN 1948-3 (1997), “Determination of the Mass Concentration of PCDD'S/PCDF'S—Part 3: Identification and Quantification,” for EPA Method 23; ISO 7935:1992, “Stationary Source Emissions—Determination of the Mass Concentration of Sulfur Dioxide—Performance Characteristics of Automated Measuring Methods,” for EPA Performance Specification 2 (sulfur dioxide portion only); and ISO 10849:1996, “Determination of the Mass Concentration of Nitrogen Oxides—Performance Characteristics of Automated Measuring Systems,” for EPA Performance Specification 2 (nitrogen oxide portion only).

The following four methods are impractical alternatives to EPA test methods for the purposes of this plan because they lack sufficient quality assurance and quality control requirements necessary for EPA compliance assurance requirements: ASME PTC-38-80 R85 or C00049, “Determination of the Concentration of Particulate Matter in Gas Streams,” for EPA Method 5; ASTM D3685/D3685M-98, “Test Methods for Sampling and Determination of Particulate Matter in Stack Gases,” for EPA Method 5; ISO 9096:1992, “Determination of Concentration and Mass Flow Rate of Particulate Matter in Gas Carrying Ducts—Manual Gravimetric Method,” for EPA Method 5; and CAN/CSA Z223.26-M1987, “Measurement of Total Mercury in Air Cold Vapour Atomic Absorption Spectrophotometeric Method,” for EPA Method 29.

The following four of the 21 voluntary consensus standards identified in this search were not available at the time the review was conducted for the purposes of this plan because they are under development by a voluntary consensus body: ASME/BSR MFC 13M, “Flow Measurement by Velocity Traverse,” for EPA Method 1 (and possibly 2); ISO/DIS 12039, “Stationary Source Emissions—Determination of Carbon Monoxide, Carbon Dioxide, and Oxygen—Automated Methods,” for EPA Method 3A; PREN 13211 (1998), “Air Quality—Stationary Source Emissions—Determination of the Concentration of Total Mercury,” for EPA Methods 101, 101A, 29 (portion for mercury only); and ASTM Z6590Z, “Manual Method for Both Speciated and Elemental Mercury,” for EPA Methods 101A and 29 (portion for mercury only). While we are not proposing to include these four voluntary consensus standards in today's proposal, the EPA will consider the standards when final.

Tables 6, 7, and 8 of subpart JJJ list the EPA testing methods/performance specifications included in the Federal Plan Requirements for Small Municipal Waste Combustion Units. Under § 63.8(f) of subpart A of the General Provisions, a source may apply to EPA for permission to use alternative monitoring in place of any of the EPA testing methods/performance specifications.

I. Congressional Review Act

The congressional Review Act, 5 U.S.C. 801,
et. seq.,
as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency adopting the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and

the Comptroller General of the United States prior to publication of this rule in the
Federal Register
. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

J. Executive Order 13211—Energy Effects

This Federal plan is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 62

Environmental protection, Air pollution control, Incorporation by reference, Municipal waste combustion.

Dated: December 19, 2002.
Christine Todd Whitman,
Administrator.

For the reasons stated in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:

PART 62—[AMENDED]

1. The authority citation for part 62 continues to read as follows:

Authority:

42 U.S.C. 7401—7671q.

2. Section 62.02 is amended by revising paragraph (b) to read as follows:

§ 62.02
Introduction.

(b)(1) If a State does not submit a complete, approvable plan, the Administrator may then promulgate a substitute plan or part of a plan. The promulgated provision, plus the approved parts of the State plan, constitute the applicable plan for purposes of the act.

(2) The part 60 subpart A of this chapter general provisions and appendices to part 60 apply to part 62, except as follows: 40 CFR 60.7(a)(1), 60.7(a)(3), and 60.8(a) and where special provisions set forth under the applicable subpart of this part shall apply instead of any conflicting provisions.

3. Section 62.13 is amended by adding paragraphs (d) and (e) to read as follows:

§ 62.13
Federal plans.

(d)
[Reserved]
(e) The substantive requirements of the small municipal waste combustion unit Federal plan are contained in subpart JJJ of this part. These requirements include emission limits, compliance schedules, testing, monitoring, and reporting and recordkeeping requirements.

4. Part 62 is amended by adding subpart JJJ to read as follows:

Subpart JJJ—Federal Plan Requirements for Small Municipal Waste Combustion Units Constructed on or Before August 30, 1999

Introduction

Sec.
62.15000
What is the purpose of this subpart?
62.15005
What are the principal components of this subpart?
Applicability of This Subpart

62.15010
Is my municipal waste combustion unit covered by this subpart?
62.15015
Can my small municipal waste combustion unit be covered by both a State plan and this subpart?
62.15020
Can my small municipal waste combustion unit be exempt from this subpart?
62.15025
How do I determine if my small municipal waste combustion unit is covered by an approved and currently effective State or Tribal plan?
62.15030
What are my obligations under this subpart if I reduce my small municipal waste combustion unit's combustion capacity to less than 35 tons per day?
62.15035
Is my small municipal waste combustion unit subject to different requirements based on plant capacity?
Compliance Schedule and Increments of Progress

62.15040
What are the requirements for meeting increments of progress and achieving final compliance?
62.15045
When must I complete each increment of progress?
62.15050
What must I include in the notifications of achievement of my increments of progress?
62.15055
When must I submit the notifications of achievement of increments of progress?
62.15060
What if I do not meet an increment of progress?
62.15065
How do I comply with the increment of progress for submittal of a final control plan?
62.15070
How do I comply with the increment of progress for awarding contracts?
62.15075
How do I comply with the increment of progress for initiating onsite construction?
62.15080
How do I comply with the increment of progress for completing onsite construction?
62.15085
How do I comply with the increment of progress for achieving final compliance?
62.15090
What must I do if I close my municipal waste combustion unit and then restart my municipal waste combustion unit?
62.15095
What must I do if I plan to permanently close my municipal waste combustion unit and not restart it?
Good Combustion Practices: Operator Training

62.15100
What types of training must I do?
62.15105
Who must complete the operator training course? By when?
62.15110
Who must complete the plant-specific training course?
62.15115
What plant-specific training must I provide?
62.15120
What information must I include in the plant-specific operating manual?
62.15125
Where must I keep the plant-specific operating manual?
Good Combustion Practices: Operator Certification

62.15130
What types of operator certification must the chief facility operator and shift supervisor obtain and by when must they obtain it?
62.15135
After the required date for operator certification, who may operate the municipal waste combustion unit?
62.15140
What if all the certified operators must be temporarily offsite?
Good Combustion Practices: Operating Requirements

62.15145
What are the operating practice requirements for my municipal waste combustion unit?
62.15150
What happens to the operating requirements during periods of startup, shutdown, and malfunction?
Emission Limits

62.15155
What pollutants are regulated by this subpart?
62.15160
What emission limits must I meet?
62.15165
What happens to the emission limits during periods of startup, shutdown, and malfunction?
Continuous Emission Monitoring

62.15170
What types of continuous emission monitoring must I perform?
62.15175
What continuous emission monitoring systems must I install for gaseous pollutants?
62.15180
How are the data from the continuous emission monitoring systems used?
62.15185
How do I make sure my continuous emission monitoring systems are operating correctly?
62.15190
Am I exempt from any 40 CFR part 60 appendix B or appendix F requirements to evaluate continuous emission monitoring systems?
62.15195
What is my schedule for evaluating continuous emission monitoring systems?
62.15200
What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?
62.15205
What minimum amount of monitoring data must I collect with my continuous emission monitoring systems and is this requirement enforceable?
62.15210

How do I convert my 1-hour arithmetic averages into appropriate averaging times and units?

62.15215
What is required for my continuous opacity monitoring system and how are the data used?
62.15220
What additional requirements must I meet for the operation of my continuous emission monitoring systems and continuous opacity monitoring system?
62.15225
What must I do if my continuous emission monitoring system is temporarily unavailable to meet the data collection requirements?
Stack Testing

62.15230
What types of stack tests must I conduct?
62.15235
How are the stack test data used?
62.15240
What schedule must I follow for the stack testing?
62.15245
What test methods must I use to stack test?
62.15250
May I conduct stack testing less often?
62.15255
May I deviate from the 13-month testing schedule if unforeseen circumstances arise?
Other Monitoring Requirements

62.15260
What other requirements must I meet for continuous monitoring?
62.15265
How do I monitor the load of my municipal waste combustion unit?
62.15270
How do I monitor the temperature of flue gases at the inlet of my particulate matter control device?
62.15275
How do I monitor the injection rate of activated carbon?
62.15280
What minimum amount of monitoring data must I collect with my continuous parameter monitoring systems and is this requirement enforceable?
Recordkeeping

62.15285
What records must I keep?
62.15290
Where must I keep my records and for how long?
62.15295
What records must I keep for operator training and certification?
62.15300
What records must I keep for stack tests?
62.15305
What records must I keep for continuously monitored pollutants or parameters?
62.15310
What records must I keep for municipal waste combustion units that use activated carbon?
Reporting

62.15315
What reports must I submit and in what form?
62.15320
What are the appropriate units of measurement for reporting my data?
62.15325
When must I submit the initial report?
62.15330
What must I include in the initial report?
62.15335
When must I submit the annual report?
62.15340
What must I include in the annual report?
62.15345
What must I do if I am out of compliance with these standards?
62.15350
If a semiannual report is required, when must I submit it?
62.15355
What must I include in the semiannual out-of-compliance reports?
62.15360
Can reporting dates be changed?
Air Curtain Incinerators That Burn 100 Percent Yard Waste

62.15365
What is an air curtain incinerator?
62.15370
What is yard waste?
62.15375
What are the emission limits for air curtain incinerators that burn 100 percent yard waste?
62.15380
How must I monitor opacity for air curtain incinerators that burn 100 percent yard waste?
62.15385
What are the recordkeeping and reporting requirements for air curtain incinerators that burn 100 percent yard waste?
Equations

62.15390
What equations must I use?
Title V Requirements

62.15395 Does this subpart require me to obtain an operating permit under title V of the Clean Air Act?
62.15400
When must I submit a title V permit application for my existing small municipal waste combustion unit?
Delegation of Authority

62.15405
What authorities are retained by the Administrator?
Definitions

62.15410 What definitions must I know?
Tables

Table 1 of Subpart JJJ—Generic Compliance Schedules and Increments of Progress

Table 2 of Subpart JJJ—Class I Emission Limits For Existing Small Municipal Waste Combustion Units

Table 3 of Subpart JJJ—Class I Nitrogen Oxides Emission Limits For Existing Small Municipal Waste Combustion Units

Table 4 of Subpart JJJ—Class II Emission Limits For Existing Small Municipal Waste Combustion Units

Table 5 of Subpart JJJ—Carbon Monoxide Emission Limits For Existing Small Municipal Waste Combustion Units

Table 6 of Subpart JJJ—Requirements for Validating Continuous Emission Monitoring Systems (CEMS)

Table 7 of Subpart JJJ—Requirements for Continuous Emission Monitoring Systems (CEMS)

Table 8 of Subpart JJJ—Requirements for Stack Tests

Table 9 of Subpart JJJ—Site-specific Compliance Schedules and Increments of Progress

Subpart JJJ—Federal Plan Requirements for Small Municipal Waste Combustion Units Constructed on or Before August 30, 1999

Introduction

§ 62.15000
What is the purpose of this subpart?
(a) This subpart establishes emission requirements and compliance schedules for the control of emissions from existing small municipal waste combustion units that are not covered by an EPA approved and effective State plan. The pollutants addressed by these emission requirements are listed in tables 2, 3, 4, and 5 of this subpart. These emission requirements are developed in accordance with sections 111(d) and 129 of the Clean Air Act and subpart B of 40 CFR part 60.

(b) In this subpart, “you” means the owner or operator of a small municipal waste combustion unit.

§ 62.15005
What are the principal components of this subpart?
This subpart contains five major components:

(a) Increments of progress toward compliance.

(b) Good combustion practices:

(1) Operator training.

(2) Operator certification.

(3) Operating requirements.

(c) Emission limits.

(d) Monitoring and stack testing.

(e) Recordkeeping and reporting.

Applicability of this Subpart

§ 62.15010
Is my municipal waste combustion unit covered by this subpart?
(a) This subpart applies to your small municipal waste combustion unit if the unit meets the criteria in paragraphs (a)(1) and (a)(2) and the criteria in either paragraph (a)(3) or (a)(4) of this section:

(1) Your municipal waste combustion unit has the capacity to combust at least 35 tons per day of municipal solid waste or refuse-derived fuel but no more than 250 tons per day of municipal solid waste or refuse-derived fuel.

(2) Your municipal waste combustion unit commenced construction on or before August 30, 1999.

(3) Your municipal waste combustion unit is not regulated by an EPA approved and effective State or Tribal plan.

(4) Your municipal waste combustion unit is located in any State whose approved State plan is subsequently vacated in whole or in part, or the municipal waste combustion unit is located in Indian country if the approved tribal plan for that area is subsequently vacated in whole or in part.

(b) If you make a change to your municipal waste combustion unit that meets the definition of modification or reconstruction after June 6, 2001, your municipal waste combustion unit becomes subject to subpart AAAA of 40 CFR part 60 (New Source Performance Standards for Small Municipal Waste Combustion Units) and this subpart no longer applies to your unit.

(c) If you make physical or operational changes to your existing

municipal waste combustion unit primarily to comply with this subpart, then subpart AAAA of 40 CFR part 60 (New Source Performance Standards for Small Municipal Waste Combustion Units) does not apply to your unit. Such changes do not constitute modifications or reconstructions under subpart AAAA of 40 CFR part 60.

(d) Upon approval of the State or tribal plan, this subpart will no longer apply, except for the provisions of this subpart that may have been incorporated by reference under the State or Tribal plan, or delegated to the State by the Administrator.

§ 62.15015
Can my small municipal waste combustion unit be covered by both a State plan and this subpart?
(a) If your municipal waste combustion unit is located in a State that has a State plan that has not been approved by the EPA or has not become effective, then this subpart applies and the State plan would not apply to your municipal waste combustion unit. However, the State could enforce the requirements of a State regulation while your municipal waste combustion unit is still subject to this subpart.

(b) After the State plan is approved by the EPA and becomes effective, your municipal waste combustion unit is no longer subject to this subpart and will only be subject to the approved and effective State plan.

§ 62.15020
Can my small municipal waste combustion unit be exempt from this subpart?

(a)
Small municipal waste combustion units that combust less than 11 tons per day.
Your unit is exempt from this subpart if four requirements are met:

(1) Your municipal waste combustion unit is subject to a federally enforceable permit limiting municipal solid waste combustion to less than 11 tons per day.

(2) You notify the Administrator that the unit qualifies for this exemption.

(3) You submit to the Administrator a copy of the federally enforceable permit.

(4) You keep daily records of the amount of municipal solid waste combusted.

(b)
Small power production units.
Your unit is exempt from this subpart if four requirements are met:

(1) Your unit qualifies as a small power production facility under section 3(17)(C) of the Federal Power Act (16 U.S.C. 796(17)(C)).

(2) Your unit combusts homogeneous waste (excluding refuse-derived fuel) to produce electricity.

(3) You notify the Administrator that the unit qualifies for this exemption.

(4) You submit to the Administrator documentation that the unit qualifies for this exemption.

(c)
Cogeneration units.
Your unit is exempt from this subpart if four requirements are met:

(1) Your unit qualifies as a cogeneration facility under section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)).

(2) Your unit combusts homogeneous waste (excluding refuse-derived fuel) to produce electricity and steam or other forms of energy used for industrial, commercial, heating, or cooling purposes.

(3) You notify the Administrator that the unit qualifies for this exemption.

(4) You submit to the Administrator documentation that the unit qualifies for this exemption.

(d)
Municipal waste combustion units that combust only tires.
Your unit is exempt from this subpart if three requirements are met:

(1) Your municipal waste combustion unit combusts a single-item waste stream of tires and no other municipal waste (the unit can cofire coal, fuel oil, natural gas, or other nonmunicipal solid waste).

(2) You notify the Administrator that the unit qualifies for this exemption.

(3) You provide the Administrator documentation that the unit qualifies for this exemption.

(e)
Hazardous waste combustion units.
Your unit is exempt from this subpart if the unit has received a permit under section 3005 of the Solid Waste Disposal Act.

(f)
Materials recovery units.
Your unit is exempt from this subpart if the unit combusts waste mainly to recover metals. Primary and secondary smelters may qualify for this exemption.

(g)
Cofired units.
Your unit is exempt from this subpart if four requirements are met:

(1) Your unit has a federally enforceable permit limiting municipal solid waste combustion to 30 percent of the total fuel input by weight.

(2) You notify the Administrator that the unit qualifies for this exemption.

(3) You provide the Administrator with a copy of the federally enforceable permit.

(4) You record the weights, each quarter, of municipal solid waste and of all other fuels combusted.

(h)
Plastics/rubber recycling units.
Your unit is exempt from this subpart if four requirements are met:

(1) Your pyrolysis/combustion unit is an integrated part of a plastics/rubber recycling unit as defined under “Definitions” (§ 62.15410).

(2) You record the weight, each quarter, of plastics, rubber, and rubber tires processed.

(3) You record the weight, each quarter, of feed stocks produced and marketed from chemical plants and petroleum refineries.

(4) You keep the name and address of the purchaser of the feed stocks.

(i)
Units that combust fuels made from products of plastics/rubber recycling plants.
Your unit is exempt from this subpart if two requirements are met:

(1) Your unit combusts gasoline, diesel fuel, jet fuel, fuel oils, residual oil, refinery gas, petroleum coke, liquified petroleum gas, propane, or butane produced by chemical plants or petroleum refineries that use feed stocks produced by plastics/rubber recycling units.

(2) Your unit does not combust any other municipal solid waste.

(j)
Cement kilns.
Your unit is exempt from this subpart if your cement kiln combusts municipal solid waste.

(k)
Air curtain incinerators.
If your air curtain incinerator (see § 62.15410 for definition) combusts 100 percent yard waste, then you must meet only the requirements under “Air Curtain Incinerators That Burn 100 Percent Yard Waste” (§§ 62.15365 through 62.15385) and the title V operating permit requirements of this subpart. However, if your air curtain incinerator combusts municipal solid waste other than yard waste, it is subject to all provisions of this subpart.

§ 62.15025
How do I determine if my small municipal waste combustion unit is covered by an approved and effective State or Tribal Plan?
This part (40 CFR part 62) contains a list of all States and tribal areas with approved Clean Air Act section 111(d) and section 129 plans in effect. However, this part is only updated once per year. Thus, if this part 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 to determine if approval has occurred since publication of the most recent version of this part.

§ 62.15030
What are my obligations under this subpart if I reduce my small municipal waste combustion unit's combustion capacity to less than 35 tons per day?

If you reduce your small municipal waste combustion unit's combustion capacity to less than 35 tons per day by the final compliance date, you must comply only with the following requirements:

(a) You must submit a final control plan according to the schedule in table 1 of this subpart and comply with § 62.15065(b).

(b) The final control plan must, at a minimum, include two items:

(1) A description of the physical changes that will be made to accomplish the reduction in combustion capacity. A permit restriction or a change in the method of operation does not qualify as a reduction in combustion capacity.

(2) Calculations of the current maximum combustion capacity and the planned maximum combustion capacity after the reduction. Use the equations specified under § 62.15390(d) and (e) to calculate the combustion capacity of a municipal waste combustion unit.

(c) You must complete the physical changes to accomplish the reduction in combustion capacity by the final compliance date specified in table 1 of this subpart.

(d) If you comply with all of the requirements specified in paragraphs (a), (b), and (c) of this section, you are no longer subject to this subpart.

(e) You must comply with the requirements specified in § 62.15395 and § 62.15400 regarding title V permitting. If you comply with all of the requirements specified in paragraphs (a), (b), and (c) of this section, you are no longer subject to title V permitting requirements as a result of this subpart. You will remain subject to title V permitting requirements, however, if you are subject as a result of one or more of the applicability criteria in 40 CFR 70.3(a) and (b) or 71.3(a) and (b).

§ 62.15035
Is my small municipal waste combustion unit subject to different requirements based on plant capacity?
This subpart specifies different requirements for two different subcategories of municipal waste combustion units. These two subcategories are based on aggregate capacity of the municipal waste combustion plant as defined in paragraphs (a) and (b) of this section.

(a)
Class I units.
These are small municipal waste combustion units that are located at municipal waste combustion plants with aggregate plant combustion capacity greater than 250 tons per day of municipal solid waste. (
See
the definition of municipal waste combustion plant capacity in § 62.15410 for specification of which units at a plant are included in the aggregate capacity calculation.)

(b)
Class II units.
These are small municipal waste combustion units that are located at municipal waste combustion plants with aggregate plant combustion capacity of no more than 250 tons per day of municipal solid waste. (See the definition of municipal waste combustion plant capacity in § 62.15410 for specification of which units at a plant are included in the aggregate capacity calculation.)

Compliance Schedule and Increments of Progress

§ 62.15040
What are the requirements for meeting increments of progress and achieving final compliance?

(a)
Class I units.
If you plan to achieve compliance more than 1 year following the effective date of this subpart and a permit modification is not required, or more than 1 year following the date of issuance of a revised construction or operation permit if a permit modification is required, you must meet five increments of progress:

(1) Submit a final control plan.

(2) Submit a notification of retrofit contract award.

(3) Initiate onsite construction.

(4) Complete onsite construction.

(5) Achieve final compliance.

(b)
Class II units.
If you plan to achieve compliance more than 1 year following the effective date of this subpart and a permit modification is not required, or more than 1 year following the date of issuance of a revised construction or operation permit if a permit modification is required, you must meet two increments of progress:

(1) Submit a final control plan.

(2) Achieve final compliance.

§ 62.15045
When must I complete each increment of progress?

(a) You must complete each increment of progress according to the compliance schedule in table 1 of this subpart for Class I and II units. If your Class I or Class II unit is listed in table 9 of this subpart, then you must complete each increment of progress according to the schedule in table 9 of this subpart. (
See
§ 62.15410 for definitions of classes.)

(b) For Class I units (
see
definition in § 62.15410) that must meet the five increments of progress, you must submit dioxins/furans stack test results for at least one test conducted during or after 1990. The stack

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-99. Public record. Not legal advice.