# Federal Plan Requirements for Sewage Sludge Incineration Units Constructed on or Before October 14, 2010 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-09292 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 29, 2016 - **Citation:** 81 FR 26040 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-HQ-OAR-2012-0319; FRL-9940-50-OAR] RIN 2060-AR77 Federal Plan Requirements for Sewage Sludge Incineration Units Constructed on or Before October 14, 2010 AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This action finalizes the federal plan for existing sewage sludge incineration (SSI) units. This final action implements the Environmental Protection Agency's (EPA) emission guidelines (EG) adopted on March 21, 2011, in states that do not have an approved state plan implementing the EG in place by the effective date of this federal plan. The federal plan will result in emissions reductions of certain pollutants from all affected units covered. DATES: The effective date of this rule is May 31, 2016. The incorporation by reference (IBR) of certain publications listed in the rule is approved by the Director of the Federal Register as of May 31, 2016. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2012-0319. The EPA previously established a docket for the March 21, 2011, original SSI new source performance standards (NSPS) and EG under Docket ID No. EPA-HQ-OAR-2009-0559. All documents in these dockets are listed on the World Wide Web (www), http://www.regulations.gov index Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed in the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742. FOR FURTHER INFORMATION CONTACT: Ms. Amy Hambrick, Fuels and Incineration Group, Sector Policies and Programs Division (E143-05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0964; fax number: (919) 541-3470; email address: hambrick.amy@epa.gov. SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document. ACI Activated Carbon Injection AG Attorney General ANSI American National Standards Institute ASME American Society of Mechanical Engineers ASTM American Society of Testing and Materials BTU British Thermal Unit CAA Clean Air Act CBI Confidential Business Information Cd Cadmium CDX Central Data Exchange CEDRI Compliance and Emissions Data Reporting Interface CEMS Continuous Emissions Monitoring Systems CFR Code of Federal Regulations CO Carbon Monoxide CPMS Continuous Parameter Monitoring Systems EG Emission Guidelines ERT Electronic Reporting Tool ESP Electrostatic Precipitators FB Fluidized Bed FF Fabric Filter HCl Hydrogen Chloride Hg Mercury IBR Incorporation by Reference ISTDMS Integrated Sorbent Trap Dioxin Monitoring System ISTMMS Integrated Sorbent Trap Mercury Monitoring System MH Multiple Hearth NAICS North American Industrial Classification System NESHAP National Emission Standards for Hazardous Air Pollutants NO X Nitrogen Oxides NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act of 1995 Pb Lead PCDD/PCDF Polychlorinated Dibenzo-P-Dioxins and Polychlorinated Dibenzofurans PM Particulate Matter PRA Paperwork Reduction Act PS Performance Specifications RFA Regulatory Flexibility Act SO 2 Sulfur Dioxide SSI Sewage Sludge Incineration TEF Toxicity Equivalence Factor TEQ Toxicity Equivalence The Court U.S. Court of Appeals for the District of Columbia Circuit TMB Total Mass Basis TPY Tons per Year TTN Technology Transfer Network UMRA Unfunded Mandates Reform Act of 1995 VCS Voluntary Consensus Standards WWW World Wide Web Organization of This Document. The following outline is provided to aid in locating information in this preamble. I. General Information A. Does the final action apply to me? B. Where can I get a copy of this document? C. Judicial Review II. Background Information A. What is the regulatory development background for this final rule? B. What is the purpose of this final rule? C. What is the status of state plan submittals? D. What are the elements of the SSI federal plan? III. Affected Facilities A. What is a sewage sludge incinerator? B. Does the federal plan apply to me? C. How do I determine if my SSI unit is covered by an approved and effective state plan? IV. Summary of Changes Since Proposal and Response to Public Comments A. Summary of Public Comments and Responses B. Affirmative Defense to Malfunctions V. Summary of Final SSI Federal Plan Requirements A. What are the final applicability requirements? B. What are the final compliance schedules? C. What are the final emissions limits and operating limits? D. What are the final performance testing and monitoring requirements? E. What are the final recordkeeping and reporting requirements? F. What other requirements is the EPA finalizing? VI. SSI Units That Have or Will Shut Down A. Units That Plan To Close B. Inoperable Units C. SSI Units That Have Shut Down VII. Implementation of the Federal Plan and Delegation A. Background of Authority B. Mechanisms for Transferring Authority C. Implementing Authority D. Delegation of the Federal Plan and Retained Authorities VIII. Title V Operating Permits A. Title V and Delegation of a Federal Plan IX. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR Part 51 J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) I. General Information A. Does the final action apply to me? Regulated Entities. Owners or operators of existing SSI units that are not already subject to an EPA-approved and effective state plan implementing the March 21, 2011, EG, may be regulated by this final action. Existing SSI units are those that commenced construction on or before October 14, 2010. Regulated categories and entities include those that operate SSI units. Although there is no specific North American Industry Classification System (NAICS) code for SSI units, these units may be operated by wastewater treatment facilities designed to treat domestic sewage sludge. The following NAICS codes could apply as shown in Table 1 below: Table 1—Examples of Potentially Regulated Entities Category NAICS code Examples of potentially regulated entities Solid waste combustors and incinerators 562213 Municipalities with SSI units. Sewage treatment facilities 221320 Wastewater treatment facilities with SSI units. This table is not intended to be exhaustive, but rather provides a general guide for identifying entities likely to be affected by the final action. To determine whether a facility would be affected by this action, please examine the applicability criteria in 40 CFR 62.15855 through 62.15870 of subpart LLL being finalized here. Questions regarding the applicability of this action to a particular entity should be directed to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. Where can I get a copy of this document? In addition to being available in the docket, an electronic copy of the final action is available on the Internet through the Technology Transfer Network (TTN) Web site. Following signature by the Administrator, the EPA will post a copy of this final action at http://www3.epa.gov/ttn/atw/129/ssi/ssipg.html . The TTN provides information and technology exchange in various areas of air pollution control. Additional information is also available at the same Web site. C. Judicial Review Under CAA section 307(b)(1), 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 (the Court) by June 28, 2016. II. Background Information A. What is the regulatory development background for this final rule? Section 129 of the CAA, titled, “Solid Waste Combustion,” requires the EPA to develop and adopt standards for solid waste incineration units pursuant to CAA sections 111 and 129. On March 21, 2011, the EPA promulgated NSPS and EG for SSI units located at wastewater treatment facilities designed to treat domestic sewage sludge. See 76 FR 15372. Codified at 40 CFR part 60, subparts LLLL and MMMM, respectively, these final rules set limits for nine pollutants under section 129 of the CAA: Cadmium (Cd), carbon monoxide (CO), hydrogen chloride (HCl), lead (Pb), mercury (Hg), nitrogen oxides (NO X ), particulate matter (PM), polychlorinated dibenzo-p-dioxins and polychlorinated dibenzofurans (PCDDs/PCDFs), and sulfur dioxide (SO 2 ). Sections 111(b) and 129(a) of the CAA address emissions from new units ( i.e., NSPS), and CAA sections 111(d) and 129(b) address emissions from existing units ( i.e., EG). The NSPS are federal regulations directly enforceable upon SSI units, and, under CAA section 129(f)(1), become effective 6 months after promulgation. Unlike the NSPS, the EG provide direction for developing state plans; however, the EG are not themselves directly enforceable. The EG are implemented under an EPA approved state or tribal plan or EPA adopted federal plan that implements and enforces them, once the state, tribal, or federal plan has become effective. Section 129(b)(2) of the CAA directs states with existing SSI unit(s) subject to the EG to submit plans to the EPA that implement and enforce the EG. The deadline for states to submit state plans to the EPA for review was March 21, 2012. 1 Sections 111 and 129(b)(3) of the CAA and 40 CFR 60.27(c) and (d) require the EPA to develop, implement and enforce a federal plan for SSI units in any state without an approvable state plan within 2 years after promulgation of the EG. This action finalizes the SSI federal plan. 1 Several states did not submit plans to the EPA by this date. On August 20, 2013, the Court remanded portions of the 2011 SSI rule for further explanation. National Ass'n. of Clean Water Agencies v. EPA, 734 F.3d 1115. The Court did not vacate the NSPS or EG, and, therefore, the requirements of the rules remain in place. The EPA intends to address the Court's remand in a future rulemaking. The federal plan is needed to implement the SSI rule in states without an approved state plan. EPA anticipates that facilities in approximately eighteen states and nine local air pollution control districts will need to rely on the SSI federal plan. B. What is the purpose of this final rule? Section 129 of the CAA calls upon states as the preferred implementers of the EG for existing SSI units. States with existing SSI units were to submit to the EPA within 1 year (by March 21, 2012) following promulgation of the EG state plans that are at least as protective as the EG. Sections 111 and 129 of the CAA and 40 CFR 60.27(c) and (d) require the EPA to develop, implement and enforce a federal plan within 2 years following promulgation of the EG for sources in states which have not submitted an approvable plan (by March 21, 2013). The EPA is finalizing the SSI federal plan now so that a promulgated federal plan will go into place for any such states, thus ensuring implementation and enforcement of the SSI EG. States without any existing SSI units are directed to submit to the Administrator a letter of negative declaration certifying that there are no SSI units in the state. No plan is required for states that do not have any SSI units. SSI units located in states that mistakenly submit a letter of negative declaration would be subject to the federal plan until a state plan regulating those SSI units becomes approved. State plans that have been submitted to implement the March 21, 2011, EG, have either been approved or are currently undergoing EPA review. This action finalizes the SSI federal plan to implement the March 21, 2011, EG for those states that do not have an approved state plan in place by the effective date of this federal plan. Incineration of sewage sludge causes the release of a wide array of air pollutants, some of which exist in the waste feed material and are released unchanged during combustion, and some of which are generated as a result of the combustion process itself. 2 The EPA estimated in the 2011 rule that once the state plans and federal plan become effective, a total emissions reduction of the regulated pollutants would occur as follows: Acid gases ( i.e., HCl and SO 2 ), about 450 tons per year (TPY); PM about 58 TPY; non-Hg metals ( i.e., Pb and Cd) about 1.7 TPY; and Hg about 4 pounds per year. The EPA also estimated that air pollution control devices installed to comply with the 2011 rule would also effectively reduce emissions of pollutants such as 7-polycyclic aromatic hydrocarbons, chromium, manganese, nickel, and polychlorinated biphenyls. 2 See 76 FR 51371-51375, 51396-51399 and 51399-51400 to reference the regulatory background, summary of final rule changes and impacts of the EG adopted on March 21, 2011. C. What is the status of state plan submittals? Sections 111(d) and 129(b)(3) of the CAA, 42 U.S.C. 7411(d) and 7429(b)(3), authorize and require the EPA to develop and implement a federal plan for SSI units located in states with no approved and effective state plan. Table 2 below lists states and territories that have an EPA-approved plan in effect on the date this final federal plan is signed by the EPA Administrator. Additionally, Table 2 lists states and local agencies that submitted negative declarations and or those which the EPA anticipates taking delegation of the federal plan. Table 2—Status of State and Territory Plans Status States I. EPA-Approved Implementation Plans New York; Puerto Rico; Virginia; Michigan; Indiana; Missouri. II. Anticipated Negative Declarations to be Submitted to the EPA Huntsville, Alabama; Jefferson County, Alabama; Florida; Jefferson County, Kentucky; Mississippi; Tennessee; Kansas; Pima County, Arizona; Pinal County, Arizona; Hawaii; Washoe County, Nevada; American Samoa; Guam. III. Negative Declaration Submitted/EPA Approved Maine; Vermont; Virgin Islands; District of Columbia; Delaware; Philadelphia County, Pennsylvania; West Virginia; Alabama; Kentucky; South Carolina; Arkansas; City of Albuquerque, New Mexico; New Mexico; Oklahoma; Texas; Nebraska; Colorado; Montana; North Dakota; South Dakota; Utah; Wyoming; Arizona; Idaho; Oregon. IV. Final Implementation Plans Submitted to the EPA Georgia. V. Draft Implementation Plans Submitted to the EPA Rhode Island. VI. EPA has not received a draft or final implementation plan or negative declaration Huntsville, Alabama; Jefferson County, Alabama; Florida; Jefferson County, Kentucky; Mississippi; North Carolina; Forsyth County, North Carolina; Mecklenburg County, North Carolina; Buncombe County, North Carolina; Tennessee; Iowa; Kansas; Pima County, Arizona; Pinal County, Arizona; California; Hawaii; Washoe County, Nevada; American Samoa; Guam; Washington. VII. Anticipated to Accept Delegation of federal plan Connecticut; Massachusetts; New Hampshire; New Jersey; Maryland; Pennsylvania; Allegheny County, Pennsylvania; Louisiana; Maricopa County, Arizona; Nevada; Clark County, Nevada; Alaska; Puget Sound Clean Air Agency; Northwest Clean Air Agency; Southwest Clear Air Agency. VIII. Anticipated federal plan implementation by EPA Illinois; Minnesota; Ohio; Wisconsin. As the EPA regional offices approve implementation plans, they will also, in the same action, amend the appropriate subpart of 40 CFR part 62 to codify their approvals. The EPA will maintain a list of implementation plan submittals and approvals on the TTN Air Toxics Web site at http://www3.epa.gov/ttn/atw/129/ssi/ssipg.html . The list will help SSI unit owners or operators determine whether their SSI units are affected by a state plan or the federal plan. Sewage sludge incinerator owners and operators can also contact the EPA regional office for the state in which their SSI units are located to determine whether there is an approved and effective state plan in place. Table 3 lists the names, email addresses and telephone numbers of the EPA regional office contacts and the states and territories that they cover. Table 3—Regional Office Contacts Region Regional contact Phone States and territories Region I Patrick Bird, bird.patrick@epa.gov (617) 918-1287 Connecticut, Massachusetts, Maine, New Hampshire, Rhode Island, Vermont. Region II Phillip Ritz, ritz.phillip@epa.gov (212) 637-4064 New York, New Jersey, Puerto Rico, Virgin Islands. Region III Mike Gordon, gordon.mike@epa.gov (215) 814-2039 Virginia, Delaware, District of Columbia, Maryland, Pennsylvania, West Virginia. Region IV Stan Kukier, kukier.stan@epa.gov (404) 562-9046 Florida, Georgia, North Carolina, Alabama, Kentucky, Mississippi, South Carolina, Tennessee. Region V Margaret Sieffert, sieffert.margaret@epa.gov (312) 353-1151 Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio. Region VI Steve Thompson, thompson.steve@epa.gov (214) 665-2769 Arkansas, Louisiana, New Mexico, Oklahoma, Texas. Region VII Lisa Hanlon, hanlon.lisa@epa.gov (913) 551-7599 Iowa, Kansas, Missouri, Nebraska. Region VIII Kendra Morrison, morrison.kendra@epa.gov (303) 312-6145 Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming. Region IX Mark Sims, sims.mark@epa.gov (415) 972-3965 Arizona, California, Hawaii, Nevada, American Samoa, Guam, Northern Mariana Islands. Region X Katharine Owens, owens.katharine@epa.gov (206) 553-1023 Alaska, Washington. Madonna Narvaez, narvaez.madonna@epa.gov (206) 553-2117 Idaho, Oregon. D. What are the elements of the SSI 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 SSI units to implement and enforce the promulgated EG. Accordingly, subpart MMMM of 40 CFR part 60 requires states to submit state plans that include specified elements. Because this federal plan takes the place of state plans, where approved state plans are not effective, it includes the same essential elements: (1) Identification of legal authority and mechanisms for implementation; (2) inventory of SSI units; (3) emissions inventory; (4) compliance schedules; (5) emissions limits and operating limits; (6) operator training and qualification; (7) testing, monitoring, recordkeeping and reporting; (8) public hearing; and (9) progress reporting. See 40 CFR part 62, subpart LLL, and sections 111 and 129 of the CAA. Each element was discussed in detail as it relates to the federal plan in the preamble of the proposed rule (80 FR 23406). The EPA received a total of ten unique public comment letters. A summary of these comments and the EPA's responses is presented in section IV, “Summary of Changes Since Proposal and Response to Public Comments” of this preamble. III. Affected Facilities A. What is a sewage sludge incinerator? The term “SSI” means any unit 3 that combusts any amount of sewage sludge located at a wastewater treatment facility designed to treat domestic sewage sludge, as defined in 40 CFR part 62, subpart LLL. The affected facility is each individual SSI unit. The federal plan defines two subcategories for existing SSI units in 40 CFR 62.16045 of subpart LLL: Multiple hearth (MH) incinerators and fluidized bed (FB) incinerators. 3 An SSI unit is an enclosed device or devices using controlled flame combustion that burns sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter. An SSI unit also includes, but is not limited to, the sewage sludge feed system, auxiliary fuel feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The SSI unit includes all ash handling systems connected to the bottom ash handling system. The combustion unit bottom ash system ends at the truck loading station or similar equipment that transfers the ash to final disposal. The SSI unit does not include air pollution control equipment or the stack. 40 CFR 62.16045. The combustion of sewage sludge that is not burned in an SSI unit located at a wastewater treatment facility designed to treat domestic sewage sludge may be subject to other standards under the CAA. B. Does the federal plan apply to me? The federal plan would apply to the owner or operator of an existing SSI unit that was constructed on or before October 14, 2010, and that is not already regulated by an approved and effective state plan as of the effective date in this notice. 4 The federal plan would apply to the SSI unit until the EPA approves a state plan that regulates the SSI unit and that state plan becomes effective. 5 If the construction of an SSI unit began after October 14, 2010, or modification of an SSI unit began after September 21, 2011, it would be considered a new SSI unit and would be subject to the NSPS at 40 CFR part 60, subpart LLLL. The specific applicability of the federal plan is described in 40 CFR 62.15855 through 62.15870 of subpart LLL. 4 The federal plan will become effective 30 days after final promulgation. 5 A state plan is effective on the date specified in the notice published in the Federal Register announcing the EPA's approval of the plan. This action will not preclude states from submitting a state plan at a later time. If a state submits a plan after the promulgation of the SSI federal plan, the EPA will review and approve or disapprove the state plan. 6 If the EPA approves a plan, then the SSI federal plan no longer applies to SSI units covered by the state plan. If an SSI unit was overlooked by a state and the state submitted a negative declaration letter, or if an individual SSI unit was not covered by an approved and effective state plan, the SSI unit would be subject to this federal plan. 6 An approved state plan is a plan developed by a state that the EPA has reviewed and approved based on the requirements in 40 CFR part 60, subpart B, to implement 40 CFR part 60, subpart MMMM. C. How do I determine if my SSI unit is covered by an approved and effective state plan? Part 62 of title 40 of the CFR identifies the status of approval and promulgation of CAA section 111(d) and CAA section 129(b) state plans for designated facilities in each state. However, 40 CFR part 62 is updated only once per year. Thus, if 40 CFR part 62 does not indicate that a state has an approved and effective plan, please contact the state environmental agency's air director or the EPA's regional office (see Table 3 in section II.C of this preamble) to determine if approval occurred since publication of the most recent version of 40 CFR part 62. IV. Summary of Changes Since Proposal and Response to Public Comments This rule will be finalized as proposed except where the EPA revised the regulatory text to make certain clarifications. After consideration of all the public comments received, in the response to public comments below, the EPA clarified the compliance date, operator training requirements, the federal plan delegation process, certain performance monitoring and testing provisions, status of state plan submittals, and the inventory of units. The EPA received a total of ten unique public comment letters on the proposed federal plan rulemaking. (Note, one letter was inadvertently duplicated and submitted to the docket. 7 ) No public hearing was requested, and, therefore, none was held. 7 Docket Identification Numbers EPA-HQ-OAR-2012-0319-0016 and EPA-HQ-OAR-2012-0319-0017 are the same comment. The EPA believes that it is critical to highlight that the final compliance date remains, as proposed, March 21, 2016. Commenters raised concerns that the two proposed pathways for compliance implied that the compliance date was longer than statutorily allowed. Therefore, the EPA removed these pathways in the regulatory text to clarify the final compliance date. Commenters raised numerous comments on the federal plan's monitoring and testing provisions, most of which the EPA did not propose to revise or otherwise solicit comment on in the proposed federal plan. Section 129 of the CAA requires the EPA to develop a federal plan to assure that existing units are in compliance with the EG. Many of the comments received on the proposed federal plan's monitoring and testing provisions recommended changes to the EG, which are outside the scope of this action. For that reason, we are not making these changes at this time in the federal plan. An example of these changes is adjusting the minimum percent of the maximum permitted capacity during testing, which is currently promulgated in the EG at 85-percent. In the April 27, 2015, federal plan proposal the EPA did solicit comment on a potential revision to this provision. 8 The EPA is not revising the minimum threshold provision in the federal plan, but will consider whether to do so in a future rulemaking action. With respect to all other comments addressing monitoring and testing provisions in the EG, those comments are outside the scope of this action. However, we do provide some clarifications of the requirements of the EG in response to those comments later in the preamble for this federal plan. We will consider making changes to the EG and federal plan to incorporate the suggested revisions in the future. In addition, many of the commenters' concerns may be addressed through the federal plan, which provides the EPA Administrator with the authority to approve alternate methods of demonstrating compliance as established under 40 CFR 60.8(b) and 60.13(i). SSI unit owners and operators who wish to petition the agency for an alternative method of demonstrating compliance should submit a request to the Regional Administrator with a copy sent to the appropriate state. 8 See 80 FR 23404. A full summary of the public comments and responses to the public comments is provided below in section IV.A. of this preamble. A. Summary of Public Comments and Responses In this section, we provide the EPA's responses to all of the public comments received. 9 All of the public comment letters received are located in the docket, which can be accessed by following the instructions outlined in the ADDRESSES section of this preamble. 9 All of the public comments received are identified in the memorandum titled, “Public Comments Received on the Proposed Federal Plan Requirements for Sewage Sludge Incineration Units Constructed on or Before October 14, 2010,” located in the docket. 1. Compliance Schedule Comment: Several commenters (08, 11, 12, 14) point out that the proposed final compliance date of March 21, 2016, is contradictory to the schedules of the compliance pathways proposed in 40 CFR 62.15875 given that it is less than 1 year after the close of the public comment period. Commenters believe that the proposed compliance pathways are unclear and imply that the final compliance date could be after March 21, 2016. Specifically, the proposed 40 CFR 62.15875 outlined two compliance pathways. The first pathway was to achieve final compliance by 1 year from the date of publication of the final federal plan in the Federal Register . The second pathway was to achieve final compliance more than one year following the date of publication of the final federal plan in the Federal Register by meeting the increments of progress specified in Table 1 of the proposed rule (increment 1: Submit final control plan 3 months from the date of publication of the final rule in the Federal Register and increment 2: Final compliance by March 21, 2016). Commenters (08, 11, 12, 14) request that EPA clarify the final compliance date and the schedules in the compliance pathways. Two commenters (11, 12) specifically request that the EPA revise 40 CFR 62.15875 as follows: • One (1) year after publication of the final federal plan in the Federal Register , or • For affected sources planning to comply more than one (1) year after the final federal plan, meeting increments of progress for submitting a final control plan within six (6) months after the final federal plan is published and final compliance by two (2) years after the publication of the final federal plan in the Federal Register . Commenters (11, 12) express concern that, due to the delays from the petitioned SSI reconsideration and the federal plan development, the federal plan will negatively affect utilities' efforts to plan for compliance. Another commenter (14) reiterates this concern notably for smaller to mid-size wastewater utilities. The commenter (14) further highlights the short window for compliance and that facilities will likely have to take further regulatory action in areas such as greenhouse gas emissions, industrial pretreatment, anti-terrorism safeguards, and nutrient removal in addition to the numerous other rules and requirements that they are currently required to follow. The commenter states the financial impact this regulation has already had on its facility (estimated at $45,000 for administration and reporting, $25,000 for fees, $65,000 for third-party audits, and $50,000 for a compilation of reports for state and federal agency reporting) and anticipates ongoing cost to ratepayers. A separate commenter (12) asks that the final federal plan contain a mechanism modeled on the provisions at 40 CFR 62.14536, which allow operators to petition for compliance extensions on a case-by-case basis. Response: The EPA agrees with commenters that clarification of the compliance date and compliance pathways is necessary, but disagrees that a later compliance date is needed and notes that a later compliance date is not authorized by CAA section 129. In addition, comments regarding the appropriate compliance date are outside the scope of this action, and EPA did not propose any revisions to the compliance date. The EPA clarifies that the final compliance date is March 21, 2016. 10 This compliance date was established in the March 21, 2011, EG. In addition, similar to the implementation of other EG under CAA section 129, the EPA proposed two compliance pathways, which would allow owners or operators of SSI units to either: (1) Come into compliance with the plan within 1 year after the plan is promulgated; or (2) meet increments of progress and come into compliance by the final compliance date. 11 This framework was intended for a federal plan that was promulgated on schedule as required by sections 111 and 129(b)(3) of the CAA and 40 CFR 60.27(c) and (d), which require the EPA to develop, implement and enforce a federal plan for SSI units in any state without an approvable state plan within 2 years after promulgation of the EG. In this case, 2 years after the promulgation of the EG would have been by March 21, 2013. The EPA recognizes that because this federal plan is being finalized after the 2-year timeframe from the promulgation of the EG, it is not practical to retain these two pathways in the final federal plan, as the pathway with increments of progress would not comport with the final compliance date established by the EG. In fact, the EPA recognizes that by proposing these pathways, many commenters were confused and stated that they interpreted that the final compliance date was after March 21, 2016, which is not what the EPA intended. 10 If a facility is complying with a state implementation plan, the compliance date may be earlier than March 21, 2016. 11 2010 State Implementation Guidance Document is available through the EPA's TTN at http://www3.epa.gov/ttn/atw/129/hmiwi/epa453b10001_hmiwi.pdf . Therefore, the EPA is revising the final rule to require that all SSI unit owners or operators submit a final control plan and achieve final compliance by March 21, 2016. The EPA has concluded that most facilities already have a final control plan in place and know what measures they are required to take in order to achieve compliance. The EPA disagrees with the commenter's suggested framework for allowing facilities to achieve final compliance up to 2 years after the publication of the final federal plan in the Federal Register . This would violate the statute, as section 129 of the CAA directs the EPA to implement the federal plan so that the plan will assure that each unit subject to the plan is in compliance with all provisions no later than 5 years after the date of the promulgation of the emissions guidelines, which was March 21, 2011. The EPA disagrees with using a mechanism modeled on the provision at 40 CFR 62.14536 as there is no statutory authority under CAA section 129 for providing compliance extensions ( i.e., allowing compliance after the compliance date). Lastly, the EPA disagrees that affected sources have had inadequate time to prepare to comply with this rule. The commenters do not point to any specific circumstances where compliance is not possible. In fact, one commenter notes that sources have been working to come into compliance since the March 2011 final rule was issued. The federal plan implements the EG for existing SSI units, which was promulgated on March 21, 2011. 12 We believe that sources have had ample notification of this final compliance date and that they are aware of what measures they must take in order to comply. 12 See 76 FR 15372. 2. Operator Training Comment: Several commenters (08, 11, 12, 14) express varying opinions on the proposed operator training requirements. One commenter (08) points out that the proposed 40 CFR 62.15920(b) requires that operator training and qualification must be obtained through a state-approved program or by completing the requirements that the section outlines. Proposed 40 CFR 62.15920(c) requires that operators must pass an examination designed and administered by a state-approved program or an administering instructor. The commenter suggests that some states will have neither created or identified an approved SSI operator training program, nor have identified any state-approved instructors to administer the training and examination. The commenter is concerned that the facility and operator would be in a situation in which it would be impossible to comply with the rule through no fault of the facility or operator. Other commenters (11, 12) express appreciation of the EPA's flexibility on who can administer the SSI operator training program and the examination. Commenter (12) requests that the EPA verify its interpretation of the operator training requirements. Specifically, the commenter raises that, based on email correspondence with the EPA, they understand that the proposed operator training requirements mean that a third-party or utility could develop a training program and exam and it need not be approved by the state or the EPA as long as it meets the requirements in 40 CFR 62.15920(c). The commenter states that they understand that this interpretation is only with respect to states that do not have approved state plans in place and that, once a state plan is approved by the EPA, upon the effective date of a state plan, the federal plan would no longer apply as of the effective date of a state plan. Any operator training requirements would have to comply with the state plan. Another commenter (14) is concerned that it will be difficult to meet the operator training requirements when no state training program exists. Response: As the EPA recently clarified in a webinar on June 2, 2015, to states, tribes, territories, and local air agencies, the federal plan would require that an SSI unit cannot be operated unless a fully trained and qualified SSI unit operator is accessible, either at the facility or nearby such that the operator can be at the facility within 1 hour. 13 Operator training and qualification must be obtained through a state-approved training program or by completing the list of training requirements included in the proposed federal plan. The EPA explained that if a state program does not exist, facilities complying with the federal plan must complete the list of training requirements in order to comply with the rule. 13 EPA's outreach webinar on the federal plan proposal can be found at the SSI regulation Web site: http://www3.epa.gov/ttn/atw/129/ssi/ssipg.html. Section 62.15920(b) of 40 CFR part 62 clearly states that there are two options for complying with the operator training requirements. The first option is to obtain training and qualification through a state-approved program. The second option is to obtain training and qualification through completing an incinerator operator training course that includes at a minimum the topics listed in 40 CFR 62.15920(c). The rule further requires operators to complete an examination designed and administered by the state-approved program or an instructor administering the training topics listed in the rule. The rule also states that operators are required to conduct initial training and annual refresher trainings in addition to retaining documentation on-site of completed operator training. The EPA provides the following examples of how a training and examination program could work in order to comply with the requirements: • Example 1: A third party administers an SSI operator training course and examination. The training course and examination syllabus cover the topics as described in 40 CFR 62.15920(c). • Example 2: An affected SSI facility with necessary technical expertise administers an “in-house” SSI operator training course and examination. The training course and examination syllabus cover the topics as described in 40 CFR 62.15920(c). • Example 3: SSI operators complete an SSI operator training course and examination through a state-approved training program ( e.g., state-approved trainer or state-run program; may vary by state). The EPA further clarifies that “state approved training program” is not a “state implementation plan”. The EPA recognizes that different states may have their own requirements for professional trainers in their states even if they do not have a state implementation plan in place. SSI unit owners and operators are encouraged to contact their state to find out if their state has its own requirements for trainers. Once a state plan is approved by the EPA, upon the effective date of a state plan, the federal plan would no longer apply to SSIs in that state. The state or local agency would implement and enforce the approved state plan in lieu of the federal plan and operator training requirements would have to conform with the state plan. 3. Performance Testing and Monitoring As the EPA discussed in the federal plan proposal, we will not address comments on the underlying SSI EG, since those comments address issues outside the scope of the federal plan. 14 We note that this section addresses issues that the EPA believes warrant clarification, even though they are not within the scope of this action. Many of the comments received on the proposed federal plan's monitoring and testing provisions recommend changes to be made in the EG, and since no such revisions were identified in the proposed federal plan, we are not making these changes at this time in the federal plan. We will consider making changes to the EG and corresponding changes to the federal plan to incorporate the suggested revisions in the future. However, the responses below provide clarification regarding the requirements of certain monitoring and testing provisions. 14 See 80 FR 23404. Comment: Multiple commenters (11, 12, 13, 18) respond to the EPA's solicitation of comments regarding the proposed provision at 40 CFR 62.16015, which would require SSI units to operate at a minimum of 85-percent of the maximum permitted capacity during performance testing. The EPA specifically solicited comments and additional data on whether the 85-percent requirement warrants a revision due to operational limitations or other factors. Two commenters (12 and 18) state that the capacity at which SSIs test will drive the overall setting of operating parameters that: (1) May be impossible to maintain at a lower (more real-world) throughput rate, and (2) if possible to maintain, may have negative environmental and cost implications. Under one commenter's (18) title V permit, stack tests are required and set the maximum (with an allowable exceedance up to 10-percent) for dry-tons-per-day solids loading. The commenter argues that using a stack test to set the maximum throughput makes sense when the stack test results are also used to set operating parameters. In addition, for this commenter, the permitted throughput is calculated as an average of three test runs, and two commenters (12 and 18) request the EPA to consider including this in the federal plan. Commenters (12 and 18) provide the example that an SSI unit with a higher feed rate will have a higher air flow and, therefore, a higher pressure drop; pressure drop is one of the operating parameters that must be established. Under normal feed rates, SSIs will have lower air flows and lower pressure drops. They state that it may be necessary for some utilities attempting to achieve combustion zone temperature limits established for higher loading conditions to use auxiliary fuel to artificially increase bed temperature to meet the operating limit at lower loading conditions. Commenters (12 and 18) discuss that it is not practical or economical for many SSIs to maintain a level of 85-percent during normal operations in order to ensure that operating parameters set at this level are consistently met. The commenters discuss that operation at this higher level will require frequent start/stop cycles, which accelerates the thermal aging of the system, shortens the useful life of the unit, results in highly variable feed composition, and uses more auxiliary fuel for stable operation. The commenters believe that these adverse impacts further increase the operating cost and adversely impact emissions from SSIs due to excessive fuel use and increased frequency of startup and shutdown modes. In other words, this would result in increased energy consumption and greenhouse gas emissions. One commenter (12) explains that some SSI facilities have had to store sludge for extended periods of time to accumulate enough material to meet this requirement, as many SSIs routinely operate significantly below their maximum permitted capacity. If an operating facility has to store sludge to meet the 85-percent feed rate, the characteristics of the sludge will change, resulting in different operating requirements and performance for stored sludge than non-stored sludge processed during average conditions. The commenter further explains that many utilities simply do not generate enough sludge to burn at 85-percent of permitted capacity consistently. The commenter describes how sludge is fed at a rate to maintain a specific and narrow combustion temperature range. Variations in sludge composition will vary the feed rate as the commenter describes. During one SSI facility's recent performance test run, the sludge's percent volatile solids and British Thermal Unit (BTU) content were significantly higher than normal, which resulted in feed rates less than 85-percent as the SSI's BTU input capacity was reached. In other cases, SSI units have not been able to maintain feed rates at 85-percent of their permitted maximum capacity and also maintain other operating conditions during testing, resulting in test runs that do not meet the regulatory requirements ( e.g., sludge volatile content and other sludge characteristics can vary significantly and feed rates must be adjusted to maintain target combustion temperatures). One commenter (12) reminds the EPA of their comments submitted on the October 14, 2010, proposal of the EG and NSPS (75 FR 63260) in which they stated that EPA's assumption that SSIs operate at 75-percent of the rated capacity was too high and that the EPA needed to consider other options. 15 The commenter further highlights their November 29, 2010, comment that raised concerns about requiring a specific operating parameter for feed rate. The commenter believes that the 85-percent requirement was added at the 2011 final rule stage of the EG and NSPS as the EPA attempted to address the issue that their November 29, 2010, comments raised at the time. They further believe that the EPA removed the operating parameter for sludge feed rate and the requirement to regularly operate within that range, but the agency then added the 85-percent requirement for performance testing. The commenter requests that the EPA eliminate the 85-percent requirement and instead require the use of a minimum feed rate based on actual historical operating averages ( i.e., the baseline would be each SSI's historical operating baseline, instead of permitted capacity). The commenter states that the EPA has previously suggested in email correspondence and phone conversations that testing be conducted at both 85-percent of permitted capacity and at the historical operating average feed rates in order to establish the operating parameters at regular or normal feed rates. The commenter does not think that this is acceptable because this would require two separate compliance demonstration source tests and effectively double the cost of performance testing. They also do not think that there is valid regulatory purpose for establishing operating parameters at higher operating capacities ( e.g., 85-percent) than are normally encountered, so they request that the EPA revise this requirement to instead require testing based on actual/historical operating average. 15 See November 29, 2010, comment submitted by the National Association of Clean Water Agencies. Document identification number EPA-HQ-OAR-2009-0559-0127.1. http://www.regulations.gov . Commenter (11) discusses that their unit is rated by the manufacturer at a sludge feed rate of 2.0 dry-tons-per-hour. The rating was based on assumptions during its design, including volatile solids percentage in sludge. The commenter states that the SSI unit has never achieved the design sludge feed rate, much in part because the measured volatile solids content has been consistently higher than the design assumption. Under a normal optimal operation, the commenter can run a feed rate of 1.4-1.5 dry-tons-per-hour, which is at 75-percent of rated capacity. However, they describe that there are extended periods of time where the SSI unit operates at lower feed rates ( e.g., 1.1 dry-ton-per-hour), which is 55-percent of rated capacity. The commenter explains that sludge feed rate dictates the target combustion temperature to achieve optimal combustion conditions while generating the least quantity of air pollutants. While the commenter will seek a lower permitted capacity in its air permit, it is likely that the SSI unit will not continuously operate within 85-100-percent capacity range, including during test conditions. The commenter describes how operators must respond to varying conditions such as sludge quality, fluidized sand condition, and combustion air flow and temperature. The commenter believes that sludge feed rate should not be specified in the operation of an SSI, including during performance testing. The commenter asks the EPA to provide relief in this requirement by either expanding the minimum percentage requirement, or by implementing another means to determine “normal operation”. One suggestion they recommend is to require that a performance test be conducted at a sludge feed rate within plus or minus 20-percent of the average sludge feed rate during the past six months of SSI unit operation. Commenter (13) recommends that the 85-percent threshold be replaced with a requirement that the minimum feed rate be based on historical operating average. The commenter explains that this suggestion is primarily due to the variability of the sludge feed ( e.g., percent solids, percent volatile solids, BTU content, percent primary sludge v. percent waste activated sludge, etc.), which impacts throughput. Furthermore, the commenter states that SSI facilities are finding that they will not be able to continuously meet some of the site-specific operating limits ( e.g., wet scrubber pressure drop) established at 85-percent threshold or higher, when operating their incinerators at normal (lower) feed rates. Response: While we solicited comment on the 85-percent of maximum permitted capacity performance testing requirement, the EPA has decided that it is not appropriate to make changes to the requirement at this time, in order to avoid inconsistencies between the federal plan and the EG, since the federal plan is intended to implement the EG. The EPA thanks the commenters for their valuable feedback and ideas. We will consider making changes to the EG and corresponding changes to the federal plan to address the suggested revisions in the future. If a particular operating parameter is inappropriate for a site-specific configuration, the facility may submit an alternative monitoring plan to the appropriate EPA regional office pursuant to 40 CFR 62.16050, 40 CFR 60.8 and 60.13. Comment: One commenter (11) discusses the proposed 40 CFR 62.15995(a)(3)(ii)(C), which includes specific requirements for installation of a pH monitoring system if a scrubber is designed to control emissions of HCl or SO 2. Specifically, 40 CFR 62.15995(a)(3)(ii)(C)( 1 ) will require that a pH sensor be placed in a position at the scrubber effluent. The commenter explains that the requirement will cause issues in establishing an operating limit and in operating and maintaining the pH probe because of the elevated temperature of scrubber effluent and presence of erosive ash and sand particulate. The commenter further explains that it is likely that the pH probe measurement will drift under these conditions. Additionally, regarding the establishment of operating limits, the commenter believes that it is likely that the pH of scrubber effluent will vary during a performance test, depending on the varying presence of HCl and/or SO 2 removed from the gas stream. The commenter states that using scrubber effluent pH is inconsistent with engineering design for scrubbers designed to remove acidic or alkaline gases from process air or flue. Typically, the adjustment and measurement of scrubber pH liquid is important for the feed (or influent) into a scrubber system. In a semantic sense, the term “scrubber liquid pH” used in 40 CFR 62.15985(a)(1) is typically understood to be the liquid introduced ( i.e., feed) into a scrubber. This is a fundamentally different term than “scrubber effluent pH,” as noted in 40 CFR 62.15995(a)(3)(ii)(C). The commenter recommends that the pH of scrubber liquid, specifically the feed water into a scrubber, be used for establishing operating limits. The commenter also states that the pH monitoring system should be placed at the feed water, and not the scrubber effluent. Response: This comment is outside the scope of the SSI federal plan, since the federal plan is intended to implement the EG. The EPA thanks the commenters for their valuable feedback and ideas. We will consider making changes to the EG and federal plan to incorporate the suggested revisions in the future. If a particular operating parameter is inappropriate for a site-specific configuration, under 40 CFR 62.16050, 40 CFR 60.8 and 60.13, the facility may submit an alternative monitoring plan to the appropriate EPA regional office. Comment: One commenter (08) describes that the proposed 40 CFR 62.15995 includes requirements to prepare site-specific monitoring plans for continuous parameter monitoring systems (CPMS). The proposed rule contains specific sensitivity specifications for certain types of CPMS. The commenter explains that most SSIs have been operating satisfactorily with legacy CPMS, installed at the time of installation or shortly thereafter as the “kinks” were worked out. At this time, however, it is often impossible to obtain performance specifications for the CPMS components or the overall CPMS, for a variety of reasons. The commenter discusses that, when the equipment was purchased, performance specifications with that degree of granularity were often not required as part of equipment specification. It may be impossible to now obtain the data retroactively from vendors or manufacturers, because suppliers are no longer in business, or the manufacturers did not acquire or retain the data because it was not required. Thus there will be situations in which an affected SSI unit has an existing continuous parameter monitoring equipment that is working satisfactorily with years of reliable performance, but for which the operator cannot produce the “paperwork” documenting that the unit meets the performance specification of the proposed 40 CFR 62.15995. The commenter asks the EPA what alternatives are available to operators of SSI units in these circumstances. The commenter also asks that if the rule is promulgated as proposed, will the operators of those SSI units be required to replace working and effective CPMS simply for the lack of “paperwork”. The commenter believes that discarding equipment that is working for lack of “paperwork” seems unnecessary and wasteful, particularly since newer equipment with greater sensitivity might actually be more susceptible to breakdown or performance excursions. Response: While the EPA has stated its belief that it is prudent for records of specifications for measurement equipment to be kept, the EPA understands that these records may no longer exist. In cases where this information no longer exists, that reason alone will not require facilities to replace their equipment. Instead, the facility may demonstrate that the equipment meets the requirements given in the rule. For example, for temperature measurements, such a demonstration could rely on comparison to a redundant temperature measurement device, a calibrated temperature measurement device or a separate sensor check and system check by temperature simulation. It is important for monitoring equipment to meet minimum specifications in order to return data of known quality. While the monitor may be working, without data of known and satisfactory quality, neither the owner or operator nor the EPA can be assured that the facility is in compliance. Comment: One commenter (08) identifies that the proposed 40 CFR 62.15995(a)(7) would establish requirements to determine when a continuous monitoring system (CMS) is out of control. They specify that paragraph (a)(7)(i) sets forth that a CMS system would be deemed to be out of control if drift exceeds two times the applicable calibration drift specification (paragraph (a)(7)(i)(A)) or the unit fails certain required performance test audits (paragraph (a)(7)(i)(B)). As the commenter reads the proposed federal plan, the universe of CMS that fall under this provision is unclear. They discuss that one interpretation is that the proposed federal plan applies to all CMS, which would indicate that an “out-of-control” specification would need to be developed for each CMS. Following this interpretation, all CMS that are not subject to performance audits would need to develop an “out-of-control” drift specification. The commenter asks how “out-of-control” specifications would be developed for CMS that are subject neither to a performance audit nor to drift. The commenter has an alternate interpretation of 40 CFR 62.15995(a)(7), which is that it applies only to CMS for which drift is a meaningful and relevant concern. The commenter believes that the rule as written, however, does not clearly limit 40 CFR 62.15995(a)(7) to such situations. Response: The rule applies to all CMS. Section 62.15995 of 40 CFR part 62 requires owners or operators to develop and submit for the Administrator's approval site-specific monitoring plans for each CMS. Section 62.15995(a)(3) of 40 CFR part 62 requires owners or operators to identify ongoing performance evaluations in their site-specific monitoring plans for all CMS (both CEMS and CPMS). A failure of one of these ongoing activities ( e.g., the performance evaluation described in the site-specific monitoring plan) constitutes an out-of-control period and triggers corrective action. The EPA further notes that owners and operators must conduct a performance evaluation of a pressure sensor no less frequently than annually per 40 CFR 62.1995(a)(3)(ii)(B)( 5 ). Comment: Two commenters (12 and 13) identify that under the EG and the proposed federal plan, the lowest 4-hour average effluent water flow rate at the outlet of the wet electrostatic precipitator (WESP) recorded during the most recent performance test demonstrating compliance with the particulate matter, lead, and cadmium limits, becomes the WESP's site-specific minimum water effluent flow rate. Commenters discuss that the data are supposed to be measured and recorded on an hourly basis, and compliance is determined on a 12-hour block average. Commenter (13) specifically notes that the EG only requires three 1-hour long performance test runs, which means that the minimum water effluent flow rate will actually be the lowest 1-hour average. Both commenters convey that water does not continuously run through a WESP. A WESP is only flushed (clean) with water approximately once every 6 hours and the flush lasts for approximately 3 minutes. Commenter (13) explains that the rate at which flushing water is added to the WESP is normally in the range of 50-100 gallons per minute, but it can vary depending on the size of the unit. Commenter (13) states that unlike other industries, all of the WESPs located at publicly owned treatment works (POTWs) are preceded by wet scrubbing systems and the gas stream entering the WESP is saturated with moisture. As a result, there is no need to install water sprays prior to the WESP's inlet. The commenter asks whether the use of water sprays in other industries is the reason that the minimum water effluent limit was included in the SSI rules. The commenter explains that unless flushing water is being utilized, the water effluent flow rate recorded during the performance test will only consist of a small amount of moisture that has been carried over from the wet scrubbers and the condensation that occurs within the WESP. A number of POTWs combine the effluent from their wet scrubbers and WESPs into a single pipe, making it almost impossible to accurately measure the WESP water effluent. The commenter requests that POTWs be allowed to monitor the WESP's flushing water inflow in lieu of measuring the WESP's effluent, if this requirement is retained in the final federal plan. Commenter (12) states that the rule requires a minimum water flow rate for the WESP in gallons-per-minute (gpm), just like the scrubber water flow rate. Scrubber water, however, flows continuously while WESPs are only flushed once every 6 hours. Since the flushing water is not continuous, SSI unit owners and operators have difficulty developing a minimum flow rate. In addition, a WESP gravity effluent pipe with a diameter of 4 inches or 6 inches, necessary to avoid clogging in some configurations, is too large for a meter to accurately measure the low rate of flow. In some cases, WESP effluent flows into a common drain pipe where backflow into the drain can affect the accuracy of the reading. One SSI unit owner/operator requests that they be allowed to measure the water feed to the WESP, instead of measuring the flow at the outlet of the WESP. The influent flow rate will be greater than or equal to the effluent rate due to possible evaporation within the unit. However, the commenter has a more basic question as to why the rule requires a minimum WESP effluent water flow rate as a site-specific operating parameter. Based on the information the commenter has collected, water flow does not change the WESP's collection efficiency. In fact, at some times, there can be more water draining out of the WESP then is being added to it. The exception is when flushing occurs, which is due to the condensation of the moisture in the exhaust gases that have been saturated in the wet scrubbers. The commenter requests clarification on this topic in the final federal plan. Similarly, another commenter (16) believes that 40 CFR 62.15985 as proposed is impractical. The commenter states that 40 CFR 62.15985 indicates that water flow rate at the outlet of the WESP must be monitored. The commenter remarks that water usage by the WESP is intermittent and at many times too minimal for a mag-meter of the size necessary on the effluent pipe to accurately measure. A pressurized influent pipe supplying water to the WESP is much smaller, improving the accuracy of the mag-meter. The commenter describes that a WESP gravity effluent pipe with a diameter of 4 inches to 6 inches, necessary to avoid clogging, is too large for a mag-meter to accurately measure the low rate of flow. Commenter (13) references EPA guidance document for “Compliance Assurance Monitoring” (CAM) that covered WESPs used for particulate matter control; voltage was listed as the prime and only measurement for compliance monitoring. The commenter states that this document also acknowledged that wash water is only used on an intermittent basis and results in slight and temporary reductions in voltage. Since the water effluent flow rate is not indicative of a WESP's removal efficiency, WESPs are subject to a site-specific secondary voltage or amperage operating limit, and WESPs located at POTWs do not require water sprays, the commenter asks the EPA to consider eliminating the WESP water effluent operating parameter from the EG and final federal plan. Response: The choice of site-specific operating parameters is outside the scope of the federal plan, and EPA did not propose or solicit comment on revisions to these provisions. The EPA thanks the commenters for their valuable feedback and ideas. We will consider making changes to the EG and federal plan to incorporate the suggested revisions in the future. The EPA recognizes that the commenters have asked for clarifications on some of the points related to WESP water flow and we provide clarification below. First, commenters note that the lowest 4-hour average effluent water flow rate at the outlet of the WESP, recorded during the most recent performance test demonstrating compliance with the PM, Pb, and Cd limits, becomes the WESP's minimum water effluent flow rate, but that the regulation only requires three 1-hour performance test runs, which means that the minimum water effluent flow rate will actually be the lowest 1-hour average. The EPA notes that the regulation requires a minimum sample volume for each test run, not a minimum sample time. It is possible that some performance tests for PM and metals may not require 4 hours in total to achieve the minimum sample volume for the three runs. However, because the operating parameters must be set based on a 4-hour average from the performance test, the EPA has concluded that it is necessary to test for at least 4 hours (in total, not per run), even if this means collecting more than the minimum sample volume prescribed in the rule. Second, the EPA is clarifying why effluent water flow is an appropriate operating parameter for a WESP and why it accurately reflects a WESP's ability to efficiently collect PM. All ESPs operate under the principle that opposite charges exist between the plates and the particles. When the plates become too caked with collected particles, there will no longer be enough pull from the plates to attract the particles from the incoming gas stream. The plates must be continuously or intermittently (at regular intervals) washed to maintain the attraction. In some situations, either influent or effluent water flow can provide an adequate indicator of performance. However, as one commenter noted, sometimes the influent flow rate is maintained at greater than or equal to the effluent rate due to possible evaporation within the unit. In this type of situation, it is important to monitor the effluent flow rather than the influent flow. If the water evaporates and does not make it all the way through the system and does not clean all of the plate surfaces, than the water flow is not adequate, but this would not be reflected if measuring inlet flow rate. Further, the commenter's assertion that the EPA's CAM guidance lists voltage as the prime and only measurement for compliance monitoring is incorrect. The CAM guidance is meant only to provide examples for operating parameters for different control devices; it is not meant to be all inclusive. However, the second example for WESP in the CAM guidance lists three different monitoring parameters: secondary voltage, quench inlet temperature, and WESP outlet temperature. The WESP outlet temperature measurement serves as an indicator of water flow through the system, thereby demonstrating that even in the CAM guidance the EPA has acknowledged the importance of water flow in a WESP. The EPA also reminds commenters that if a particular operating parameter is inappropriate for their site-specific configuration, under 40 CFR 62.16050, 40 CFR 60.8 and 60.13 the facility may submit an alternative monitoring plan to the appropriate EPA regional office. Comment: One commenter (12) discusses that the 2011 EG and proposed federal plan include parametric monitoring requirements for good combustion at 40 CFR 62.15960. The commenter points out that a definition of “combustion chamber” is not provided in 40 CFR 62.16045, though the definition for “fluidized bed incinerator” makes mention of “combustion chamber.” A multiple hearth incinerator typically includes drying, combustion and cooling zones and could also include an afterburner for carbon monoxide removal. The commenter believes that it is unclear whether the requirement under 40 CFR 62.15960 to establish a minimum operating temperature applies to (a) the combustion chamber within a fluidized bed incinerator and the afterburner in a multiple hearth incinerator only, or (b) to all hearths/zones within a multiple hearth incinerator as well as (a), or (c) to only the combustion zone within a multiple hearth incinerator as well as (a), or (d) does not apply at all to any of the hearths/zones within a multiple hearth incinerator. The commenter stresses the importance of developing site-monitoring plans for temperature sensors that are affected under 40 CFR 62.15995(a)(3)(ii)(D). Response: The SSI federal plan does not define the term “combustion chamber.” In response to the comment regarding where the minimum combustion temperature is applied, we are clarifying that the minimum combustion temperature is to be applied in the combustion zone of the unit. The drying hearth or zone temperature typically ranges between 800 and 1,400 degrees Fahrenheit. In the drying zone, the sludge that is dried is heated so that efficient combustion may then occur. We do not believe it is appropriate to establish minimum combustion temperature in the drying zone because the drying zone's purpose is to reduce the moisture and heat up the sludge, not to combust the sludge. The temperature of the combustion zone is typically 1,700 degrees Fahrenheit. Combustion typically requires at least greater than 1400 degrees Fahrenheit to destroy solids and fixed carbon. We intend for the minimum combustion temperature to be applied in the combustion zone in order for good combustion to occur. From the combustion zone, the cooling zone occurs next where ash cools and heat is transferred to the incoming combustion air. The cooling zone also would not be appropriate to apply the minimum combustion temperature because combustion should have completed by this point. Comment: One commenter (12) states that they have had numerous discussions with the EPA about the EG and proposed federal plan's requirement relating to fugitive visible emissions from ash handling. They identify that other Maximum Achievable Control Technology standards specifically state that this requirement applies to emissions from the building to the atmosphere, not from equipment within the incinerator building, and EPA has confirmed in phone conversations with the commenter that the same is true for the visible emissions requirements for ash handling in the EG and proposed federal plan. The commenter requests that this be clearly stated in the final federal plan. The commenter believes that any attempt to apply the fugitive ash requirement within the incinerator building would be unjustified and lead to major compliance issues. Response: The underlying emissions guideline is clear that the requirement applies to fugitive visible emissions from the ash handling system. The definition of an SSI unit at 40 CFR 62.16045 describes that the unit includes all ash handling systems connected to the bottom ash handling system and that the combustion unit bottom ash system ends at the truck loading station or similar equipment that transfers the ash to final disposal. Tables 2 and 3 of the federal plan regulatory text further specify that the visible emissions of combustion ash from an ash conveying system include conveyor transfer points. It is not predicated on the location of the ash handling system. The 2011 EG and NSPS response to public comments also explains that the rule should and does require that the source owner or operator verify that the measures necessary to limit the amount of fugitive dust exiting the transfer points and exhausts from the building are such that they meet the visible emissions standard. 16 The commenter did not provide any specifics as to why the emission standard for fugitive emissions from ash handling is unjustified or would lead to major compliance issues. 16 See Docket Identification Number EPA-HQ-OAR-2009-0559-0171. Comment: One commenter (12) states that according to the EG and the proposed federal plan, all of the operating parameters, with the exception of scrubber water pH, are to be equal to the lowest 4-hour average measured during the most recent compliance test. The commenter states that EPA staff have indicated that when writing the EG, EPA personnel assumed that each of the three required test runs would be 4 hours in duration. However, the EPA included air emission test protocols in the final rule for performance testing that allow three 1-hour test runs. During correspondence with EPA, the commenter states that EPA staff agreed that 1-hour test runs were acceptable for establishing operating parameters. Furthermore, the EPA agreed that the lowest 4-hour average should be deleted and replaced with the 1-hour test run average already agreed to in principle. The commenter asks the EPA to confirm this in writing in the final federal plan and through the appropriate process to update any state implementation plans, as well in 40 CFR part 60, subpart LLLL (NSPS for SSI units). Response: The EPA notes that the regulation requires a minimum overall sample volume for each test run, not a minimum sample time. It is possible that some performance tests for PM and metals may not require 4 hours in total to achieve the minimum sample volume for the three runs. However, because the operating parameters must be set based on a 4-hour average from the performance test, the EPA has concluded that it is necessary to test for at least 4 hours (in total, not per run), even if this means collecting more than the minimum sample volume prescribed in the rule. Comment: One commenter (12) recognizes that numerous SSI unit owners and operators have raised questions regarding setting and implementing operating limits. The commenter provides the following example: During a recent performance test at one facility to establish venturi water flow rate, when the flow rate was recorded at 344 gpm. The commenter asks whether the utility must set the flow rate at the level or whether it can set the flow rate at 340 gpm. The commenter states that SSI unit owners and operators are not familiar with these provisions and would benefit from any additional guidance the EPA can provide. The commenter states that some leeway makes sense due to measurement variability. The commenter believes that compliance with the parametric limit should be based on the average high/low value (as appropriate) plus or minus 30-percent, consistent with the existing 40 CFR part 60, subpart O requirements. The commenter requests that the EPA clarify how averages are to be calculated. They state that utilities need to know how the x-hour averages are calculated for each operating parameter. Scrubber flow rate, liquid pH, combustion chamber operating temperature, etc. limits all depend of knowing how this calculation must be performed. Response: The rule provides sufficient flexibility to owners and operators to establish monitoring parameters that are achievable on an on-going basis. The owner and operator also has the flexibility to conduct repeat performance tests to re-establish performance tests parameters. While 40 CFR part 60, subpart MMMM, do not provide for the plus or minus 30-percent allowance that is in 40 CFR part 60, subpart O, the EPA notes that the operating parameter averaging times in subpart MMMM are much longer than the averaging times in subpart O. This is meant to account for the short-term fluctuations in the operating parameter readings and serves a similar purpose to the 30-percent allowance. The EPA does not think that providing the 30-percent allowance on top of the long averaging times is appropriate for ensuring continuous compliance. Section 62.15985 of 40 CFR part 62 describes how operating limits are established and Table 4 of the federal plan regulatory text describes how to demonstrate compliance with operating parameters limits. For example, minimum combustion chamber temperature is equal to the lowest 4-hour average combustion chamber temperature during the performance test. This is likely the combustion chamber measured over one test run, as the test run for dioxins and furans is likely to last around 4 hours. If this 4-hour average is 1,802 degrees Fahrenheit, the limit is 1,802 degrees Fahrenheit, not 1,800 degrees Fahrenheit. On a continuous basis, the combustion temperature would be measured and recorded at least once every 15 minutes, and those data would be used to calculate hourly arithmetic averages. The hourly average would then be used to calculate a 12-hour block average. The 12-hour block average would be compared to the lowest 4-hour average recorded during the test (1,802 degrees Fahrenheit in this example) to determine compliance. Compliance with the other operating parameter limits are demonstrated similarly according to the specific timeframes noted in 40 CFR 62.15985 and Table 4 for each operating parameter. Comment: One commenter (12) requests that the EPA considers building some measure of flexibility into the site-specific operating limits. Specifically, the commenter suggests that the enforceable site-specific operating limit could be higher or lower than the limit established during the compliance tests within some defined boundaries. The commenter provides an example: If the lowest total pressure drop during the testing is 40 inches and the particulate matter and the metal emissions rates are all at or below 75-percent of the standards, 17 is EPA willing to reduce the total pressure drop operating limit to 36 inches? The commenter believes that the EPA has allowed this type of flexibility in its 40 CFR part 60, subpart O, and 40 CFR part 503 requirements. 17 The commenter acknowledges that the EG does allow for reduced frequency of testing for pollutants that are at or below 75-percent of the emissions limits for at least two consecutive years. Response: This comment is outside the scope of this action, since EPA is adopting a federal plan that simply implements the underlying requirements of the EG. The EPA thanks the commenters for their valuable feedback and ideas. We will consider making changes to the EG and federal plan to incorporate the suggested revisions in the future. If a particular operating parameter is inappropriate for a site-specific configuration, under 40 CFR 62.16050, 40 CFR 60.8 and 60.13 the facility may submit an alternative monitoring plan to the appropriate EPA regional office. Comment: One commenter (12) states that SSI unit owners and operators are concerned they will be required to meet the emissions limits required by the federal plan and the operating parameters immediately after the initial compliance test. Based on conversations with EPA regional staff, the commenter understands that, as long as an SSI unit continues to operate as specified in an existing title V permit or other authorizing document (where there is no title V permit), they are not required to operate the control equipment under the established parameters of the rule's initial compliance test until the compliance date of March 21, 2016 (or earlier date specified by a state implementation plan). The commenter asks the EPA to confirm this in writing. Response: The EPA reiterates that the final compliance date of the federal plan in March 21, 2016. SSI units will need to be in compliance by that date, including operating within the limits of the operating parameters they establish during the initial performance test. Compliance before the compliance date is encouraged but not required. SSI units subject to state plans may be required to meet earlier compliance dates. The EPA notes that SSI units must also comply with the requirements in their title V operating permits. Comment: One commenter (16) states that proposed 40 CFR 62.16015 implies that the use of the bypass stack when sewage sludge is not being charged is not an emission standard deviation. Section 62.16015 of 40 CFR part 62 states that use of the bypass stack at any time that sewage sludge is being charged to the SSI unit is an emissions standards deviation for all pollutants listed in Table 2 or 3 of the subpart. The commenter asks the EPA if this interpretation is correct. Similarly, the commenter states that proposed 40 CFR 62.15955 implies that emissions limits and standards do not apply to a bypass stack or vent if sewage sludge is not being combusted. Section 62.15955 of 40 CFR part 62 states that emissions limits and standards apply at all times the unit is operating and during periods of malfunction. The emission limits and standards apply to emissions from a bypass stack or vent while sewage sludge is in the combustion chamber ( i.e., until the sewage sludge feed to the combustor has been cut off for a period of time not less than the sewage sludge incineration residence time). The commenter asks EPA if their interpretation is correct. The commenter (16) further identified that 40 CFR 62.15970 appears to conflict with 40 CFR 62.15955. Section 62.15970 of 40 CFR part 62 reads, “emission limits and standards apply at all times and during period of malfunction.” Section 62.15955 of 40 CFR part 62 includes the proviso “at all times the unit is operating.” The commenter interprets the statement, “at all times” as written in 40 CFR 62.15970 to conflict with the implication in 40 CFR 62.15955 that emissions limits and standards apply to a bypass stack while sewage sludge is in the combustion chamber. The commenter points out that the term “operating” as used in the proposed federal plan is not defined. The commenter asks the EPA to clarify if the term “operating” is the period of time when sludge is being combusted in the incinerator, or is the term to mean any period of time that burners are on in the incinerator, regardless of whether or not sludge is being combusted. The commenter also points out that the term “operating limits” is used in the regulations, but the definition of “operating” is not clearly defined. Similarly, the commenter cites a discussion at 80 FR 23411, which states that “any incident of deviation, resumed operation following shutdown, force majeure . . . are required to be reported to the Administrator.” The commenter reiterates that the term “shut-down” is defined as “the period of time after all sewage sludge has been combusted in the primary chamber.” The commenter explains that it is common practice for an SSI facility to run out of sludge to incinerate, and is therefore “shutdown” on a regular basis, either weekly or possibly more frequently until they have enough sludge to incinerate. The commenter asks the EPA to clarify whether this discussion in the preamble of the federal plan proposal means that each time an SSI facility runs out of sludge and/or temporarily shuts off the sludge feed to the incinerator for operational reasons, and then resumes burning sludge, the Administrator must be notified. The commenter asserts that “shutdown” by definition can exist with the burners on but with no sludge being combusted. The commenters interprets that this could mean that the term “operation” should be defined as any time sludge is being combusted in the incinerator. The commenter further states that 40 CFR 62.15970 conflicts with their understanding that, during the time when sludge is not being combusted in the incinerator, it is not a deviation if the natural draft damper is open. Section 62.15970 of 40 CFR part 62 states that for determining compliance with the carbon monoxide (CO) concentration limit using CO CEMS, the correction to 7-percent oxygen does not apply during periods of startup or shutdown. Use the measured CO concentration without correcting for oxygen concentration in averaging with other CO concentrations (corrected to 7-percent oxygen) to determine the 24-hour average value. The commenter explains that CEMS obtain samples from the main incinerator stack, after pollution control equipment. The CEMS does not sample from the natural draft stack, therefore while the natural draft stack is open the CEMS is in essence sampling ambient air and therefore inclusion of the CO concentrations during these times seems irrelevant. The commenter states that CO is still required to be monitored when sludge is not being combusted in the incinerator during a period of shutdown. The commenter asks EPA to clarify why, if emission limits do not apply when sludge is not being combusted, CO must continue to be monitored, which requires the constant operation of a scrubber, a WESP, and an afterburner to obtain a valid CO reading. Response: The language in 40 CFR 62.16015 is clear in specifying that use of the bypass stack when sewage sludge is charged is a deviation of the standards. Section 62.15955 of 40 CFR part 62 also clearly states that the emission limits and standards apply to emissions from a bypass stack or vent while sewage sludge is in the combustion chamber. EPA disagrees with the commenter that 40 CFR 62.15970 conflicts with 40 CFR 62.15955. The emissions standards apply at all times. While we would expect that the source could meet the emissions limit when not charging sludge ( e.g., when burning a fuel such as natural gas), that is not a given. Therefore, we did not provide specific rule language for the use of the stack bypass when sewage sludge is not being charged as the “flip” side to the requirement at 40 CFR 62.16015 and 40 CFR 62.15955. Defining terms in the federal plan that are not defined in the underlying EG is beyond the scope of this rulemaking. CAA section 129 clearly directs the EPA to structure the rule to include monitoring provisions of parameters relating to the operation of the unit and its pollution control equipment. Furthermore, we believe that the term “operating limit” is sufficiently understood by the regulated community. The EPA points out that the federal plan does define the term “operating day” to mean a 24-hour period between 12:00 midnight and the following midnight during which any amount of sewage sludge is combusted at any time in the SSI unit. 18 18 See 40 CFR 62.16045. Regarding the differing language “at all times when the unit is operating” in 40 CFR 62.15955 and the language “at all times” in 40 CFR 62.15970, we do not believe that the underlying EG intended any significance to this difference. As discussed in the preamble to that rule, we are clear that the emissions limits and standards apply at all times (see 75 FR 63265 and 75 FR 63282). The EPA is finalizing the notification requirements as proposed to require that sources notify the Administrator following any incident of deviation, force majeure, intent to stop or start use of CMS, and intent of conducting or rescheduling a performance test. EPA clarifies that notification of resumed operation following shutdown as cited by the commenter at 80 FR 23411 is clear in the rule text. Specifically, the notification of resumed operation following shutdown of the unit is in the context of a qualified operator deviation. See 40 CFR 62.15945(b)(i) and (ii), 40 CFR 62.16030(e), and table 6 in the rule. Please note that the rule requires other notifications associated with a unit ceasing operations or going “offline”. 19 19 For a full list of notification requirements, please see Table 6 of 40 CFR part 62, supart LLL. Lastly, 40 CFR 62.15970 clearly states that operating limits only apply when sludge is being combusted including residence time, but the emission limits apply at all times. The definition of bypass stack indicates that the bypass stack's intended purpose is to avoid severe damage to air pollution control devices or other equipment. 20 The EPA did not intend for facilities to use the bypass stack at all times when there is no sewage sludge being burned. Therefore, emissions should generally be routed to the main stack even during periods when sewage sludge is not being burned, and the requirement to continue monitoring the emissions with the CO CEMS is relevant, as compliance with the emission standard is still required during these periods. 20 Comments received on the 2011 EG and NSPS indicate that bypass stacks are an essential part of the safety equipment and use of the stack indicates that the unit is not operating under normal conditions. See Docket Identification Number EPA-HQ-OAR-2009-0559-0171. Comment: One commenter (16) asks the EPA to clarify if 40 CFR 62.16020 includes periods of time when sludge is not being combusted in the incinerator. Section 62.16020 of 40 CFR part 62 states that if your SSI unit has a bypass stack, you must install, calibrate (to manufacturers' specifications), maintain and operate a device or method for measuring the use of the bypass stack including date, time, and duration. The commenter explains that it is common practice for SSIs to open the bypass stack and “coast” on natural draft during periods when sludge is not being combusted in the incinerator in order to save fuel, electricity, and wear and tear on equipment. The commenter, referencing their comment that they interpret 40 CFR 62.16015 to imply that the use of the bypass damper when sludge is not being combusted in the incinerator is not a deviation, asks whether the recordkeeping and reporting requirements of 40 CFR 62.16020 do not apply while not combusting sludge in the incinerator. Response: The rule is clear as written. The requirement to install, calibrate, maintain and operate a device or method for measuring the use of the bypass stack including date, time and duration applies when sludge is combusted and when sludge is not combusted. Comment: One commenter (16) asks the EPA to clarify if 40 CFR 62.16015 is to be interpreted to mean that each daily calibration check, zero and span adjustments, and quarterly and annual calibrations must be reported in a deviation report. Section 62.16015 of 40 CFR part 62 states that any data collected during monitoring system malfunctions, repairs, or required monitoring system quality assurance or control activities must be reported in a deviation report. Response: As the commenter notes, periods of equipment malfunction, repairs and out-of-control periods are to be reported as deviations. While we do not intend all instances of required quality assurance and quality control activities to be reported as deviations, to the extent that ongoing quality assurance and quality control activities require an amount of time such that an hourly average cannot be determined for that hour consistent with the requirements given in 40 CFR 60.13(h)(2)(iii) ( i.e., there are not enough data collected during the hour), those periods should also be reported as deviations. Reporting of such periods informs regulatory authorities when unusual circumstances occur, allowing increased scrutiny as necessary. Comment: One commenter (16) asks that the EPA clarify how 40 CFR 62.15985 should be interpreted. Section 62.15985 of 40 CFR part 62 states that we must perform checks at least once each process operating day to ensure pressure measurements are not obstructed ( e.g., check for pressure tap plugging daily). The commenter explains that their pressure transducers and transmitters operate with a 4 to 20 milliamp signal sent to a controller that monitors the pressure reading and controls the equipment necessary to maintain the operating setpoint. Disconnection of the transducer to check “the tap” causes the signal from the transmitter to send incorrect milliamp signals back to the controller, which in turn can cause the controller to erroneously control the equipment, or, in a worst case scenario, to trigger safety shut-offs of the incinerator itself. Response: In general, we are not specifying how performance evaluations are to be performed. Due to the many variations in monitoring equipment, the manufacturer of the equipment is the best source for determining the proper technique for performing most performance evaluations. The site-specific monitoring plan must include information on routine quality assurance and quality control procedures. The plan should include not only a schedule for performing the performance evaluations, but also a description of how the evaluations will be performed. Unless specified, the EPA is providing the facility with discretion to determine the best method to perform these evaluations for these site-specific monitoring systems. The facility, in conjunction with the equipment manufacturer, should determine the best manner for demonstrating that the pressure measurements are not obstructed. One example of such a procedure, checking for pressure tap pluggage, is provided, but it is not the only possible option. Comment: One commenter (16) asks that EPA clarify how 40 CFR 62.15990 should be interpreted. Section 62.15990 of 40 CFR part 62 requires that a “performance evaluation” of a pH meter be performed daily. The commenter explains that companies that provide in-line continuous pH meters are not aware of any feature other than a calibration to demonstrate the accuracy of the meter, and calibrations are only required quarterly. The commenter points out that different regulators may consider the term “performance evaluation” differently, and may in fact consider a calibration as the only good method to determine the performance of the meter, which is not reasonable to do on a daily basis. Response: In general, we are not specifying how performance evaluations are to be performed. Due to the many variations in monitoring equipment, the EPA believes that the manufacturer of the equipment is the best source for determining the proper technique for performing most performance evaluations. The site-specific monitoring plan must include information on routine quality assurance and quality control procedures. The plan should include not only a schedule for performing the performance evaluations, but also a description of how the evaluations will be performed. Unless specified, the EPA is providing the facility with discretion to determine the best method to perform these evaluations for these site-specific monitoring systems. A performance evaluation and a calibration are not meant to be the same thing, although a calibration could certainly suffice in lieu of a performance evaluation. The intent of a performance evaluation is to demonstrate that the equipment is still functioning within a specific degree of accuracy. It is akin to performing a calibration check of a CEMS in lieu of performing a CEMS calibration; in the former, the facility would merely show that the CEMS is still within a certain accuracy of a known standard, but the CEMS would not be adjusted in any way. The EPA has not provided specific examples of a pH meter performance evaluation, but one such example is performing a one-point check on a known buffer solution. The facility, in conjunction with the equipment manufacturer should determine the best manner for demonstrating that the pH meter is reading accurately each day. Comment: One commenter (16) discusses their overall operations. Their MH unit has been in operation since 1994 and the air pollution control devices include a venturi scrubber, a plate scrubber, a WESP, and a regenerative thermal oxidizer (afterburner). Their standard operating procedure is to initiate the combustion of sludge on Monday, with continuous combustion until Saturday or Sunday depending on the amount of sludge inventory. Once they run out of sludge, charging of sludge to the incinerator is stopped, and the temperature of the SSI unit is stabilized to what they consider to be a cool standby condition (hearth number 3 is at 1,100 degrees Fahrenheit). Approximately 4 hours after the sludge feed is stopped, well past the residence time of sludge in the incinerator, the induced draft fan is shut off and the natural draft damper opens. Monday is then used for preventative maintenance or other work on the unit and pollution control equipment. During the time when the SSI unit is on natural draft, the scrubber, WESP, and afterburner are off-line. This allows the commenter the flexibility of shutting off the WESP and/or the afterburner. Late on Monday, SSI unit temperatures are raised to 1,350 degrees Fahrenheit in preparation of again burning sludge, and the induced draft fan is re-started, placing the scrubber, WESP, and the afterburner back on-line. Then sludge feed to the unit is initiated. This process occurs weekly, possibly more often if unexpected maintenance on any of the SSI unit equipment or pollution control equipment becomes necessary. The commenter states that the proposed federal plan appears to imply that now any SSI unit owner or operator can never shut the induced draft fan off and coast the incinerator in a cool standby condition with the natural draft damper open even if sludge is not being combusted in the SSI. The commenter believes that this is implied because SSI unit owners and operators are directed to average CO at 7-percent oxygen while combusting sludge and with CO while not combusting sludge, to obtain the 24-hour CO average. CO monitoring probes, however, are only installed on the induced draft fan stack, not on the natural draft stack, so in order to obtain the “average” CO reading, the induced draft fan has to be on-line at all times. Further, the commenter believes it is implied that if the induced draft fan is shut off (even when not combusting sludge), this is a reportable deviation that could subject the facility to enforcement action. The commenter further describes that any facility has to be able to shut off the induced draft fan for preventative maintenance, for other scheduled maintenance, and to save fuel without having it considered a deviation or violation. Additionally, the commenter states that it is not practical to run the induced draft fan when first turning on the burners (start-up) after a cold shutdown. The induced draft fan is not sized for cold air, and the temperatures inside the MH incinerator must be raised slowly, in most cases not more than 50 degrees per hour with several extended periods of “soak” that are intended to protect the refractory and brick. Running the induced draft fan during “start-up” from a cold start requires more fuel and requires electricity, and makes it difficult to properly raise temperatures to the proper burning range. However, 40 CFR 62.15970 implies that CO readings must be obtained at all times after start-up, not just when combusting sludge in the SSI. In order to do this, the induced draft fan must be turned on before the burners are even lit. Response: Section 62.15970 of 40 CFR part 62 clearly states the emission limits apply at all times. The definition of bypass stack indicates that the bypass stack's intended purpose is to avoid severe damage to air pollution control devices or other equipment. 21 As the commenter infers from the CO CEMS language, the EPA did not intend for facilities to use the bypass stack at all times when there is no sewage sludge being burned, and emissions should generally be routed to the main stack even during periods when sewage sludge is not being burned, except in cases when it is necessary to route emissions to the bypass in order to avoid damage to equipment. 21 Comments received on the 2011 EG and NSPS indicate that bypass stacks are an essential part of the safety equipment and use of the stack indicates that the unit is not operating under normal conditions. See Docket Identification Number EPA-HQ-OAR-2009-0559-0171. 4. Status of State Plans and Federal Plan Delegation Comment: Multiple commenters (09, 10, 12, 15) request that the EPA update the status of state plans in Table 2 of this preamble. One commenter (09) confirmed that the Minnesota Pollution Control Agency will not be submitting a state plan to the EPA but instead plans to incorporate federal plan requirements into the affected SSI's title V permits once the federal plan is promulgated. One commenter (10) requests that the EPA reflect that the state of Rhode Island submitted a draft state plan to the EPA on October 10, 2014. One commenter (12) identified the state of Virginia as having received EPA approval of its state plan. Another commenter (15) clarifies that they intend to seek delegation of the federal plan for SSI units. Response: The EPA thanks the commenters for submitting these updates and corrections. We have reflected these changes in the record to this final federal plan and in Table 2, which is included in section II.C. of this preamble. Comment: Commenters (09, 11, 12, 15) request that the EPA clarify the implementation roles for “states,” “locals,” and the EPA with respect to the implementation of the EG. One commenter (12) believes that the lack of clarity is particularly an issue in those states where there are both state and local air agencies, but the states have not yet developed a state plan. The commenter requests that the EPA continue to work with state and local regulators to address these concerns. Commenter (11) further outlines that the proposed federal plan does not clearly discuss how the authority to implement the federal plan will be transferred to local air agencies, especially if a state decides not to develop a state plan or further adopt or implement the federal plan. The commenter states that Washington state, where five municipalities operate SSI units, has not expressed a decision to submit a draft state plan to the EPA or take delegation of the federal plan. The commenter is concerned with the outcome of how the three local agencies affected will manage the implementation of the EG. The commenter urges the EPA to work directly and closely with local air agencies in order to clearly and effectively provide authority and technical guidance to SSI unit operators. The commenter believes that such authority should extend to local agencies so they can use their discretion to work with SSI unit operators in determining appropriate final compliance dates as proposed in 40 CFR 62.15875. Another commenter (15) states that they are a local air authority in Washington state that has an approved title V program and has received regular delegation approvals for NSPS and NESHAP regulations (40 CFR part 60 and 63). Their most recent delegation approval from EPA Region 10 was signed on February 19, 2015, for the NSPS for new SSI units at 40 CFR part 60, subpart LLLL. The commenter states that the local agency intends to seek delegation of the federal plan as soon as possible. This local air agency plans to expedite their request for delegation following the final federal plan instructions so that they can address the regulatory gap in the title V permits for units in their district. Response: The EPA is finalizing the delegations of authority provisions as proposed, and clarifying that local agencies may directly request delegation of authority to implement the SSI federal plan with respect to sources within their jurisdiction provided they have authority under state law to do so. While the preamble to the proposal does not specifically address how to address the situation where there are both state and local air agencies and the state has not yet developed a state plan, the EPA stated that it will do all that it can to expedite delegation of the federal plan to state and local agencies in those situations. However, since this involves resolution of issues of state authority, the EPA expects that local agencies will work with their states and the appropriate EPA regional office to resolve these issues affecting their ability to implement the EG under a state plan or delegated federal plan for the area. See 40 CFR 60.26(e). In the meantime, a state or tribe with an approved title V program with authority under state or tribal law to incorporate CAA section 111/129 requirements into its title V permits is able to implement and enforce these requirements in the permitting context. See 80 FR 23413. As the EPA discussed in the proposed federal plan the EG are not directly enforceable; they are only fully implemented when the EPA either approves a state plan or adopts a federal plan that implements and enforces the EG. 22 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 state and local agencies take the primary responsibility for ensuring that the emissions limitation and other requirements in the EG are achieved. Also, in section 111(d) of the CAA, Congress explicitly required that the EPA establish procedures that for state CAA section 111(d) plans that are similar to those under CAA section 110(c) for state implementation plans. Although Congress required the EPA to propose and promulgate a federal plan for states that fail to submit approvable state plans on time, states may submit plans after promulgation of the SSI federal plan. 22 See the discussion beginning on 80 FR 23411. The EPA directs states, tribes, and locals that intend to take delegation of the federal plan to submit to the appropriate EPA regional office a written request for delegation of authority. 23 The requester must explain how they meet the criteria for delegation. The EPA references the “Good Practices Manual for Delegation of NSPS and NESHAP” (EPA, February 1983) as a guidance document for states, tribes, and locals to follow. The EPA clearly describes two mechanisms for transferring authority to state, tribal, and local agencies: (1) EPA approval of a state plan after the federal plan is in effect, and (2) if a state does not submit or obtain approval of its own plan, the EPA delegation of authority to a state, tribal, or local agency to implement certain portions of the federal plan to the extent appropriate and allowed by law. The EPA will generally delegate the entire federal plan to the requesting agency. These functions include administration and oversight of compliance reporting and record keeping requirements, SSI inspections and preparation of draft notices of violation, but will not include authorities retained by the EPA. 23 See 40 CFR 62.15865 and 40 CFR 62.16050. Agencies that have taken delegation, as well as the EPA, will have responsibility for bringing enforcement actions against sources violating federal plan provisions. Specifically, the proposed federal plan requires that an acceptable delegation request must include the following: a demonstration of adequate resources and legal authority to administer and enforce the federal plan ( e.g., attorney general's (AG's) opinion 24 ); an inventory of affected SSI units and their air emissions in addition to their compliance schedules; certification and documentation that a public hearing on the delegation request was held; and a commitment to enter into a memorandum of agreement with the EPA Regional Administrator who sets forth the terms, conditions, and effective date of delegation and that serves as the mechanism for the transfer of authority. 25 24 A state's AG's opinion that its air agency has the authority to receive delegation and demonstrate that the rule will be implemented and enforced relative to the designated facilities. If an AG's opinion was previously submitted, the opinion should be updated by the attorney general at the time a new delegation request is submitted to the EPA. The AG's opinion will be crucial because promulgated EG are not written as direct requirements for designated facilities, but rather as requirements for the state to ensure that its state plan or delegation request contains enforceable regulations that are at least as protective as those in the EG. See 40 CFR 60.26 and 40 CFR 62.05 for all provisions that should be addressed in an AG's opinion. 25 Guidance and information is provided in EPA's “Delegations Manual, Item 7-139, Implementation and Enforcement of 111(d)(2) and 111(d)(2)/129(b)(3) Federal Plans.” Neither the SSI EG nor the proposed federal plan define “state.” “State” is defined in 40 CFR 60.2, however, to mean all non-Federal authorities, including local agencies, interstate associations, and state-wide programs, that have delegated authority to implement: (1) the provisions of the part; and/or (2) the permit program established under part 70 of the chapter. The term state shall have its conventional meaning where clear from the context. Because “state” is not defined in either the SSI EG or proposed federal plan, the broader definition of “state” in 40 CFR 60.2 applies in the SSI federal plan. This is because, as provided in 40 CFR 62.01, all terms not defined therein have the meaning given to them in the CAA and in part 60 of the chapter. Based on the lack of a more specific definition of “state” in the SSI federal plan and the definition of “state” in 40 CFR part 60, we are confirming here that local agencies may directly request delegation of authority to implement the SSI federal plan with respect to sources within their jurisdiction provided they have authority under state law to do so and they have met all the requirements specified in the federal plan for taking delegation. This is in contrast to the situation with state plans implementing EG, in which we believe the request for plan approval must be submitted by the state. 26 26 See CAA section 110(a)(2)(e) and CAA section 111(d). The EPA strongly encourages state and local agencies in states that do not submit approvable state plans to request delegation of the federal plan so that they can have primary responsibility for implementing the EG, consistent with the intent of Congress. Approved and effective state plans or delegation of the federal plan is the EPA's preferred outcome because states, tribes, territories, and local agencies not only have the responsibility to carry out the EG, but also have the practical knowledge and enforcement resources critical to achieving the highest rate of compliance. It is generally preferable for state and local agencies to be the implementing agencies. The EPA reiterates that we will do all that we can to expedite delegation of the federal plan to state and local agencies, whenever possible, in cases where states are unable to develop and submit approvable state plans. Comment: One commenter (12) raises concerns regarding the EPA's delay of proposing the federal plan. The commenter specifically states that the delay has exacerbated the difficulties SSI unit owners and operators have faced in implementing the EG, especially given the fact that a majority of states have not chosen to develop their own state plans. The commenter encourages the EPA to move expeditiously to finalize the federal plan. Response: The EPA acknowledges this comment. 5. Inventory of Units Comment: One commenter (09) confirms that the EPA has properly identified the two SSI facilities in Minnesota that will be subject to this SSI federal plan. Both facilities are owned and operated by Metropolitan Council Environmental Services, the regional wastewater treatment system operator for the Twin Cities area. Response: The EPA thanks the commenter for confirming the accuracy of the unit inventory for units in their state. 6. Remand Comment: Two commenters (11, 12) raise concerns that the EPA has not yet addressed the remand in the Court Decision NACWA v. EPA . Specifically, commenter (11) believes that the proposed federal plan is ambiguous and confusing and they are in an untenable position to comply. The commenter highlights that this is because of the EPA's delay of issuing the federal plan, issuing associated policy and guidance directives for implementation of the rule, and the EPA's decision to not yet address the remand in the DC Circuit Court decision NACWA v. EPA, 734 F.3d. 1115. Commenter (12) believes that the EPA must address both the issues raised in its May 29, 2014, Petition for Reconsideration and the rule remand in the DC Circuit Court August 2013 decision in NACWA v. EPA, 734 F.3d. 1115. The commenter states that it is inappropriate to issue a final federal plan in the absence of the EPA's response to the remand. The commenter believes that the EPA's failure to address the remand puts approximately 100 utilities in an untenable position: Facilities must commit millions of dollars to upgrade their SSI units to comply with emissions standards that the Court has ruled do not clearly meet CAA statutory mandates. The commenter discusses that they outlined further details in their 2014 Petition for Reconsideration that the EPA must either fully address the Court's remand and adjust the final emissions standards as warranted or delay the compliance deadline for the rule to prevent this potentially wasteful expense of taxpayer dollars. Response: The EPA disagrees that issuance of the federal plan must be delayed until such time as we address the Court's remand of certain issues in NACWA v. EPA . The Court's remand was solely for the purpose of further explanation of the EPA's methodology. Contrary to one commenter's assertion, the Court did not find that the SSI rule was inconsistent with the CAA. Rather, the Court requested that the EPA better explain how its methodology meets the relevant statutory requirements. Further, the same commenter, which was a party in the NACWA case, requested that the Court vacate the SSI rule, and the Court declined to do so. Therefore, the Court understood and intended that the rule remain in place and that its implementation should move forward while the EPA responds to the remand. For this reason, the EPA also disagrees with the commenter who claimed that the SSI rule requirements are “not even established requirements,” since they remain in place. The EPA also disagrees that the agency must respond to one commenter's 2014 petition for Reconsideration of the SSI rule, submitted following the NACWA decision, before issuing the federal plan. Nothing in the CAA, and specifically nothing in CAA section 129, suggests that the EPA should postpone promulgation of a rule required to be issued by the CAA by a date certain in order to address a petition for reconsideration. Nor does the commenter point to any such authority. Additionally, the petition at issue requests that the EPA withdraw the SSI rule and instead issue a different rule for SSI units under section 112 of the CAA. The EPA notes that the NACWA decision upheld our authority to regulate SSI units under CAA section 129, against a challenge claiming that the EPA must regulate the units under CAA section 112. 7. Other Comments Comment: One commenter (14) remarks on the interaction of the SSI federal plan and 40 CFR part 503, subpart E. The commenter asks if the federal plan for SSI units will establish different operating limits and reporting requirements that may be different than those established under the Clean Water Act at 40 CFR part 503, subpart E. The commenter requests that the EPA consider a streamlined approach to facilitate a single set of operational parameters for demonstrating compliance. Response: This comment is outside the scope of the SSI federal plan. However, the EPA discusses the relationship of the rule to other standards for the use or disposal of sewage sludge and associated air emissions in preamble of the March 21, 2011, EG and NSPS for SSI units at 76 FR 15375. Comment: One commenter (12) discusses that some SSI units are subject to the standard for particulate matter under 40 CFR part 60, subpart O, which establishes emissions limits, monitoring requirements, and recordkeeping requirements that are different than the guidelines and standards for SSI units under 40 CFR part 60, subparts MMMM and LLLL. The commenter gives the example of the requirement for pressure drop, which is different between subpart O and subparts MMMM and LLLL. Specifically, subpart O pressure drop is a 15-minute average while subpart LLLL is a 12-hour average. The commenter is aware of at least one facility that has submitted a request to the EPA to allow the utility to demonstrate compliance with subpart O by demonstrating compliance with subpart LLLL or MMMM. The commenter asks that the EPA clarify whether subpart O is superseded by the requirements of subparts MMMM and LLLL, if both sets of site-specific limits and reporting requirements apply, and whether a site-specific determination is necessary to avoid having to demonstrate compliance with both sets of requirements independently. Response: This comment is outside the scope of the SSI federal plan. 40 CFR part 60, subparts O, MMMM, and LLLL remain in effect in the CFR. Any affected facilities would need to comply with both regulations. For the most part, subparts MMMM and LLLL are more stringent than subpart O. Generally, if a facility is in compliance with the more stringent of the regulations, it would be in compliance with the other less stringent regulation. The EPA recognizes the differences between subpart O and subparts MMMM and LLLL. However, subparts MMMM and LLLL do not relieve SSI units of complying with subpart O, and therefore an owner/operator of an SSI unit that is affected by subpart MMMM or LLLL and subpart O would need to comply with both. For the scrubber pressure drop example, subpart O does require a much shorter averaging time (15-minute average versus 12-hour average), but a facility would only need to identify when this 15-minute average is 30-percent below the average pressure drop during the performance test. Subparts MMMM and LLLL do not have the 30-percent allowance. Additionally, subparts MMMM and LLLL require data recording at 15-minute intervals, so facilities should already have the 15-minute average. Therefore, we do not believe that it is unreasonable or overly burdensome to comply with both limits. B. Affirmative Defense to Malfunctions As proposed, this final action does not include an affirmative defense to malfunction events. In the 2011 SSI rule, the EPA included an affirmative defense that provided that civil penalties would not be assessed if a source demonstrated in a judicial or administrative proceeding that it had met certain requirements. However, in 2014 the Court vacated such an affirmative defense in one of the EPA's CAA section 112(d) regulations. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). 27 The EPA intends to revise the March 21, 2011, SSI EG and NSPS to remove the affirmative defense provision from the EG and NSPS in the future. 27 See 80 FR 23407. V. Summary of Final SSI Federal Plan Requirements The SSI federal plan requirements are described below. Table 4 lists each element and identifies where it is located or codified. Table 4—Elements of the Final SSI Federal Plan Element of the SSI Federal plan Location Legal authority and enforcement mechanism Sections 129(b)(3), 111(d), 301(a),and 301(d)(4) of the CAA. Inventory of affected SSI units Docket ID No. EPA-HQ-OAR-2012-0319. Inventory of emissions Docket ID No. EPA-HQ-OAR-2012-0319. Compliance schedules 40 CFR 62.15875 to 62.15915. Emissions limits and operating limits 40 CFR 62.15955 to 62.16010. Operator training and qualification 40 CFR 62.15920 to 62.15950. Testing, monitoring, recordkeeping and reporting 40 CFR 62.16015 to 62.16040. Record of public hearings Docket ID No. EPA-HQ-OAR-2012-0319. Progress reports Section IV.I. at 80 FR 23407. A. What are the final applicability requirements? The EPA finalizes the federal plan applicability requirements as proposed. The federal plan applies to existing SSI units meeting the applicability of 40 CFR 62.15855 through 62.15870 that are located in any state that does not currently have an approved state plan in place by the effective date of this federal plan. Existing SSI units are considered to be all SSI units for which construction commenced on or before October 14, 2010. All SSI units for which construction commenced after October 14, 2010, or for which modification commenced after September 21, 2011, are considered “new” sources subject to NSPS emissions limits (40 CFR part 60, subpart LLLL). The federal plan requirements apply to owners and operators of SSI units (as defined in 40 CFR 62.16045) located at wastewater treatment facilities designed to treat domestic sewage sludge. Two subcategories are defined for existing units: MH incinerators and FB incinerators. The combustion of sewage sludge that is not burned in an SSI unit located at a wastewater treatment facility designed to treat domestic sewage sludge may be subject to other incineration stand [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-09292. Public record. Not legal advice.