# Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units Review > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-17730 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 31, 2020 - **Citation:** 85 FR 54178 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2003-0156; FRL-10013-19-OAR] RIN 2060-AU60 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units Review AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: In accordance with requirements under the Clean Air Act (CAA), the U.S. Environmental Protection Agency (EPA) performed a periodic review of the emissions standards and other requirements for Other Solid Waste Incineration (OSWI) units, covering certain very small municipal waste combustion (VSMWC) and institutional waste incineration (IWI) units. Although the EPA is not proposing revisions to the OSWI New Source Performance Standards (NSPS) and Emission Guidelines (EG) specifically based on its statutory periodic review, the EPA is otherwise—in accordance with its authority under the CAA—proposing changes to the OSWI NSPS and EG. DATES: Comments. Comments must be received on or before October 15, 2020. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before September 30, 2020. Public hearing. If anyone contacts us requesting a public hearing on or before September 8, 2020, the EPA will hold a virtual public hearing. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on requesting and registering for a public hearing. ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-OAR-2003-0156, by any of the following methods: • Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments. • Email: a-and-r-docket@epa.gov. Include Docket ID No. EPA-HQ-OAR-2003-0156 in the subject line of the message. • Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2003-0156. • Mail: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No. EPA-HQ-OAR-2003-0156, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. • Hand Delivery or Courier (by scheduled appointment only): EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday—Friday (except Federal holidays). Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting coronavirus disease 2019 (COVID-19). Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov/ or email, as there may be a delay in processing mail and faxes. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets. Refer to the SUPPLEMENTARY INFORMATION section below for additional information. FOR FURTHER INFORMATION CONTACT: For questions about this proposed action, contact Dr. Nabanita Modak Fischer, Sector Policies and Programs Division (E143-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5572; fax number: (919) 541-0516; and email address: modak.nabanita@epa.gov. SUPPLEMENTARY INFORMATION: Participation in virtual public hearing. Please note that the EPA is deviating from its typical approach because the President has declared a national emergency. Due to the current Centers for Disease Control and Prevention (CDC) recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, the EPA cannot hold in-person public meetings at this time. If requested, the virtual public hearing will be held on September 15, 2020. The hearing will convene at 9:00 a.m. Eastern Time (ET) and will conclude at 5:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details on the virtual public hearing at https://www.epa.gov/stationary-sources-air-pollution/other-solid-waste-incinerators-oswi-new-source-performance. The EPA will begin pre-registering speakers for the hearing upon publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/other-solid-waste-incinerators-oswi-new-source-performance or contact Ms. Virginia Hunt at (919) 541-0832 or by email at hunt.virginia@epa.gov. The last day to pre-register to speak at the hearing will be September 14, 2020. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers in approximate order at: https://www.epa.gov/stationary-sources-air-pollution/other-solid-waste-incinerators-oswi-new-source-performance. The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to Dr. Nabanita Modak Fischer and Ms. Virginia Hunt. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket. The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing. Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/other-solid-waste-incinerators-oswi-new-source-performance. While the EPA expects the hearing to go forward, if requested, as described in this preamble, please monitor our website or contact Ms. Virginia Hunt at (919) 541-0832 or hunt.virginia@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates. If you require the services of a translator or a special accommodation such as audio description, please pre-register for the hearing with Ms. Virginia Hunt and describe your needs by September 8, 2020. The EPA may not be able to arrange accommodations without advance notice. Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2003-0156. All documents in the docket are listed on the Regulations.gov website. Although listed, 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 on the internet and will be publicly available only in hard copy. Publicly available docket materials are available electronically through https://www.regulations.gov/. Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2003-0156. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted by mail as discussed below. The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets. The EPA is temporarily suspending its Docket Center and Reading Room for public visitors, with limited exceptions, to reduce the risks of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov/ as there may be a delay in processing mail and faxes. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets. The EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19. Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/ or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Instructions above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2003-0156. Note that written comments containing CBI and submitted by mail may be delayed and no hand deliveries will be accepted. Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA identifies the following terms and acronyms here: ACI air curtain incinerator ANSI American National Standards Institute AOGA Alaska Oil and Gas Association ASME American Society of Mechanical Engineers Cd cadmium CAA Clean Air Act CBI Confidential Business Information CDC Centers for Disease Control and Prevention CDX Central Data Exchange CEDRI Compliance and Emissions Data Reporting Interface CEMS continuous emissions monitoring systems CFR Code of Federal Regulations CISWI commercial and industrial solid waste incineration CO carbon monoxide COVID-19 coronavirus disease 2019 D.C. Circuit U.S. Court of Appeals for the District of Columbia Circuit DCOT digital camera opacity technique DF dioxins/furans ECHO Enforcement and Compliance History Online EG emission guidelines EPA Environmental Protection Agency ERT Electronic Reporting Tool ET Eastern Time FVF fuel variability factor HCl hydrochloric acid Hg mercury HMIWI hospital, medical, and infectious waste incineration ICR Information Collection Request IWI institutional waste incineration MACT maximum achievable control technology MSW municipal solid waste MWC municipal waste combustor NEI National Emissions Inventory ng/dscm nanograms per dry standard cubic meter N nitrogen NO X oxides of nitrogen NRDC Natural Resources Defense Council NSPS new source performance standards NTTAA National Technology Transfer and Advancement Act OSWI other solid waste incineration Pb lead PM particulate matter ppmvd parts per million by dry volume PRA Paperwork Reduction Action RFA Regulatory Flexibility Act SO2 sulfur dioxide SRI small remote incinerator SSM startup, shutdown, and malfunction TEQ toxic equivalency factor TMB total mass basis TPD tons per day µg/dscm micrograms per dry standard cubic meter UMRA Unfunded Mandates Reform Act VCS voluntary consensus standards VSMWC very small municipal waste combustion XML extensible markup language Organization of this document. The information in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. What is the background? C. What action is the Agency taking? D. What is the Agency's authority for taking this action? E. What data collection activities were conducted? F. What other relevant background information and data are available? G. What are the incremental costs and benefits of this action? II. OSWI Review and Proposed Revisions A. CAA Section 129(a)(5) Review B. What other actions are we proposing? C. What compliance dates are we proposing? III. Summary of Cost, Environmental, and Economic Impacts A. What are the affected sources? B. What are the air quality impacts? C. What are the cost impacts? D. What are the economic impacts? E. What are the benefits? IV. Request for Comments V. Statutory and Executive Orders Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. Does this action apply to me? Categories and entities potentially affected by the proposed action are those that operate OSWI units. The NSPS and EG for OSWI, hereinafter referred to as “the OSWI standards,” affect the categories of sources identifed in Table 1 of this preamble: Table 1—Industrial Source Categories Affected by This Proposed Action Source category NAICS code 1 Examples of potentially regulated entities Any state, local, or tribal government using a VSMWC unit 562213, 92411 Solid waste combustion units burning municipal solid waste (MSW). Any correctional institutions using an IWI unit 922 7213 Correctional institutions. Any nursing or residential care facilities using an OSWI unit 623 Any nursing care, residential intellectual and developmental disability, residential mental health and substance abuse, or assisted living facilities. Any federal government agency using an OSWI unit 928, 7121 Department of Defense (labs, military bases, munition facilities) and National Parks. Any educational institution using an OSWI unit 6111, 6112, 6113 Primary and secondary schools, universities, colleges, and community colleges. Any church or convent using an OSWI unit 8131 Churches and convents. Any civic or religious organization using an OSWI unit 8134 Civic associations and fraternal associations. Any industrial or commercial facility using a VSMWC unit 114, 211, 212, 221, 486 Oil and gas exploration operations; mining; pipeline operators; utility providers; fishing operations. 1 North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 60.2885, 60.2981, and 60.2991. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. B. What is the background? Section 129 of the CAA requires the EPA to develop and adopt NSPS and EG for solid waste incineration units in accordance with CAA sections 129 and 111. Section 129(a) of the CAA requires the EPA to establish NSPS for new sources, and CAA section 129(b) requires the EPA to establish procedures for states to submit plans for implementing EG for existing sources (and see CAA sections 111(b) and (d)). The EPA proposed NSPS and EG for OSWI units on December 9, 2004, and promulgated them on December 16, 2005 (70 FR 74870), at 40 CFR part 60, subparts EEEE and FFFF. 1 Following that final action, the Administrator received a petition for reconsideration of the OSWI standards, and on June 28, 2006, the EPA announced reconsideration on the final OSWI rules (71 FR 36726). After consideration of comments and information received through the reconsideration process, we concluded that no additional changes were necessary to the final OSWI rules (72 FR 2620, January 22, 2007). 1 The regulations were revised on November 24, 2006 (71 FR 67802) in a direct final rule to address corrections. In addition to the administrative reconsideration requests, some entities petitioned for judicial review of the 2005 OSWI standards. The judicial review proceedings initially were stayed and, ultimately, the EPA requested a voluntary remand of the OSWI standards. By Order dated April 21, 2016, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) granted the EPA's request for a remand. Sierra Club v. EPA, No. 06-1066. The remand was requested to allow the EPA to consider potential revisions, if any, to the OSWI standards that might be appropriate in light of certain legal developments, including 2007 and 2008 decisions from the D.C. Circuit. The OSWI standards establish maximum achievable control technology (MACT) emission limits for OSWI units. Under current regulations, the term “OSWI unit” means either a VSMWC unit or an IWI unit. A VSMWC unit is any municipal waste combustion unit that has the capacity to combust less than 35 tons per day (TPD) of MSW or refuse-derived fuel. An IWI unit is any combustion unit that combusts institutional waste and is a distinct operating unit of the institutional facility that generated the waste. The OSWI standards set emission standards for nine pollutants: Cadmium (Cd), carbon monoxide (CO), dioxins/furans (DF), hydrochloric acid (HCl), lead (Pb), mercury (Hg), oxides of nitrogen (NO X ), particulate matter (PM), and sulfur dioxide (SO 2 ) and also establish opacity standards. CAA section 129(a)(5) requires the EPA, every 5 years, to review and, in accordance with CAA sections 129 and 111, revise standards and other requirements for solid waste incineration units (such as the OSWI standards). In 2018, the U.S. District Court for the District of Columbia found that the EPA had failed to undertake the requisite CAA section 129(a)(5) periodic review of the OSWI standards and ordered the EPA to do the review; publish a proposed rulemaking by August 31, 2020; and promulgate a final rule by May 31, 2021. Sierra Club v. Wheeler, 330 F.Supp.3d 407. C. What action is the Agency taking? The EPA has conducted the requisite CAA section 129(a)(5) 5-year review, and we are giving notice of that review. We are not proposing any revisions to the OSWI standards specifically based on that review, but we are proposing various changes to the OSWI standards, including some changes that were occasioned by the 2016 voluntary remand of the OSWI standards (and the legal developments related to that request for a remand). In accordance with the EPA's general authority under CAA section 129(a) and and as discussed further in sections II.A and II.B of this preamble, we are proposing: (1) Certain MACT floor redeterminations; (2) changes to applicability provisions; (3) testing and monitoring flexibilities so that units with rudimentary designs can demonstrate compliance with the rule; (4) revised regulatory provisions related to emissions during periods of startup, shutdown, and malfunction (SSM); (5) provisions for electronic reporting of certain notifications and reports; (6) revisions to recordkeeping and reporting provisions consistent with the revised testing and monitoring; (7) changes to title V permitting requirements; and (8) other technical edits, clarifications, and revisions intended to improve the understanding of the rule and improve consistency with other CAA section 129 rules. D. What is the Agency's authority for taking this action? Section 129 of the CAA requires the EPA to establish NSPS and EG pursuant to sections 111 and 129 of the CAA for new and existing solid waste incineration units, including “other categories of solid waste incineration units.” This action amends the OSWI standards under such authority. In addition, CAA section 129(a)(5) specifically requires the EPA to periodically review and revise the standards and the requirements for solid waste incineration units, including OSWI units. The EPA has substantial discretion to distinguish among classes, types, and sizes of incinerator units within a category while setting standards. CAA section 129(a)(2) provides that standards “applicable to solid waste incineration units promulgated under . . . [section 111] and this section shall reflect the maximum degree of reduction in emissions of . . . [certain listed air pollutants] that the Administrator, taking into consideration the cost of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new and existing units in each category.” This level of control is referred to as a maximum achievable control technology, or MACT standard. CAA section 129(a)(4) further directs the EPA to set numeric emission limits for certain enumerated pollutants (Cd, CO, DF, HCl, Pb, Hg, NO X , PM, and SO 2 ). In addition, the standards “shall be based on methods and technologies for removal or destruction of pollutants.” CAA section 129(a)(3). In promulgating a MACT standard, the EPA must first calculate the minimum stringency levels for new and existing solid waste incineration units in a category, generally based on levels of emissions control achieved in practice by the subject units. The minimum level of stringency is called the MACT “floor,” and there are different approaches to determining the floors for new and/or existing sources. For new (and reconstructed sources), CAA section 129(a)(2) provides that the “degree of reduction in emissions that is deemed achievable . . . shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Administrator.” Emissions standards for existing units may be less stringent than standards for new units, but CAA section 129(a)(2) requires that the standards “shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of units in the category.” The MACT floors form the least stringent regulatory option the EPA may consider in the determination of MACT standards for a source category. The EPA must also determine whether to control emissions “beyond-the-floor,” after considering the costs, non-air quality health and environmental impacts, and energy requirements of such more stringent control. In general, all MACT analyses involve an assessment of the emissions from the best performing units in a source category. The assessment can be based on actual emissions data, knowledge of the air pollution control in place in combination with actual emissions data, or on other information, such as state regulatory requirements, that enables the EPA to estimate the actual performance of the regulated units. For each source category, the assessment involves a review of actual emissions data with an appropriate accounting for emissions variability. Other methods of estimating emissions can be used provided that the methods can be shown to provide reasonable estimates of the actual emissions performance of a source or sources. Where there is more than one method or technology to control emissions, the analysis may result in several potential regulations (called regulatory options), one of which is selected as MACT for each pollutant. Each regulatory option the EPA considers must be at least as stringent as the minimum stringency “floor” requirements. The EPA must examine, but is not necessarily required to adopt, more stringent “beyond-the-floor” regulatory options to determine MACT. Unlike the floor minimum stringency requirements, the EPA must consider various impacts of the more stringent regulatory options in determining whether MACT standards are to reflect “beyond-the-floor” requirements. If the EPA concludes that the more stringent regulatory options have unreasonable impacts, the EPA selects the “floor-based” regulatory option as MACT. If the EPA concludes that impacts associated with “beyond-the-floor” levels of control are acceptable in light of additional emissions reductions achieved, the EPA selects those levels as MACT. Under CAA section 129(a)(2), for new sources, the EPA determines the best control currently in use for a given pollutant and establishes one potential regulatory option at the emission level achieved by that control with an appropriate accounting for emissions variability. More stringent potential beyond-the-floor regulatory options might reflect controls used on other sources that could be applied to the source category in question. For existing sources, the EPA determines the average emissions limitation achieved by the best performing 12 percent of units to form the floor regulatory option. More stringent beyond-the-floor regulatory options reflect other or additional controls capable of achieving better performance. As noted above, CAA section 129(a)(5) requires the EPA to conduct a review of the standards at 5-year intervals and, in accordance with CAA sections 129 and 111, revise the standards. In conducting periodic reviews under CAA section 129(a)(5), the EPA attempts to assess the performance of and variability associated with control measures affecting emissions performance at sources in the subject source category (including the installed emissions control equipment), along with recent developments in practices, processes, and control technologies, and determines whether it is appropriate to revise the NSPS and EG. This approach is consistent with the requirement that standards under CAA section 129(a)(3) “shall be based on methods and technologies for removal or destruction of pollutants before, during or after combustion.” We do not interpret CAA section 129(a)(5), together with CAA section 111, as requiring the EPA to recalculate MACT floors in connection with this periodic review. 2 This general approach is similar to the approach taken by the EPA in periodically reviewing CAA section 111 standards, which, under CAA section 111(b)(1)(B), requires the EPA, except in specified circumstances, to review NSPS promulgated under that section every 8 years and to revise the standards if the EPA determines that it is appropriate to do so. 2 Elsewhere in the CAA, including under CAA section 112(d)(6), the EPA is also obliged to undertake periodic reviews. Although the nature or scope of the periodic review under CAA section 112(d)(6) is different than under CAA section 129(a)(5), it may be worth noting that, even under CAA section 112(d)(6), the EPA is not obligated to recalculate MACT floors in the course of a periodic review. NRDC v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008); Nat'l Ass'n for Surface Finishing v. EPA, 795 F.3d 1, 7-9 (D.C. Cir. 2015). E. What data collection activities were conducted? The EPA reviewed the inventory of OSWI units developed for the current standards and performed data gathering to identify additional units. 3 The current OSWI rule covers VSMWC and IWI as well as air curtain incinerators (ACIs) combusting municipal solid waste or institutional waste. ACIs burning only wood waste, clean lumber, and yard waste are only subject to opacity requirements in the OSWI rule. The EPA identified 97 VSMWC, IWI, and ACI units at 84 facilities from the prior inventory. Data searches to identify additional units encompassed review of the existing EPA databases, state permit databases, manufacturers' websites, other government agencies, and military and police sources. 3 An OSWI inventory was developed for the 2005 rulemaking and included in Docket ID No. EPA-HQ-OAR-2003-0156. The EPA's Enforcement and Compliance History Online (ECHO) website allows users to search for facilities by NSPS subparts. 4 The ECHO database provides integrated compliance and enforcement information for approximately 800,000 regulated facilities nationwide. For facilities identified by ECHO as subject to the OSWI NSPS, the EPA conducted web searches and reviewed online state air permits, where available. The EPA added 20 units at 20 facilities to the OSWI inventory from the ECHO search results. No emissions data were found for these units. 4 See https://echo.epa.gov/. The EPA also searched the 2014 National Emissions Inventory (NEI), Version 2, to identify facilities with OSWI units. The NEI is a database that contains information about sources that emit certain air pollutants, known as “criteria” pollutants, their precursors, and hazardous air pollutants. The database includes estimates of annual air pollutant emissions from sources in the 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. The EPA collects this information and releases an updated version of the NEI database every 3 years. The NEI also includes information about control devices and control approaches. Based on the NEI, four units at four facilities were added to the EPA's inventory of OSWI sources. Emissions data are available for only three of these units; no emissions data were found for the remaining unit. The EPA searched state permit databases and reviewed online permits, including title V and general permits, to identify additional OSWI units. Fourteen additional units at 14 facilities were identified and added to the OSWI inventory as a result of the permit reviews. No emissions data were found for these units in the permit documents; however, Pima County Department of Environmental Quality (PDEQ) provided a recent test report from 2019 for one unit in Arizona. The EPA reviewed customer lists available on two incinerator manufacturer websites. These incinerators are small, portable incinerators, and the customer lists included universities and other entities. Ten units at 10 facilities were added to the OSWI inventory from incinerator manufacturer customer lists. Other searches included the EPA's WebFIRE database, the U.S. Drug Enforcement Administration website, the National Park Service website, the EPA's Toxics Release Inventory, and the California Air Resources Board and Air Quality Maintenance Districts websites. No units were added to the OSWI inventory from these data sources. In addition to the OSWI units identified through the data searches described above, we also considered and included 29 remote incinerators at 25 facilities and associated emissions test and waste information collected from commercial and industrial facilities in Alaska (as further discussed in section II.B of this preamble). Taking these all together, a total of 174 OSWI units at 157 facilities were identified. These searches are documented in the memorandum, Documentation of Data Gathering Efforts for Other Solid Waste Incineration (OSWI) Units, which is available in the docket for this action. F. What other relevant background information and data are available? In addition to inventorying OSWI units, the EPA reviewed the ECHO and the NEI information, as well as state permit databases, for representative emissions data for OSWI units. In state permit databases, we obtained limited information for two OSWI units, both with capacities greater than 10 TPD (but less than 35 TPD), one located at a Texas facility and the other at an Arizona facility. The information for the Texas facility included an emissions test report for the nine OSWI pollutants for one OSWI unit, and the information for the Arizona facility included a test summary for one OSWI unit. The EPA also obtained limited emissions data (for the nine pollutants) from the 2014 NEI, Version 2 for three of the four OSWI units identified in the NEI. The NEI data did not include control device information for these four units. We also reviewed data collected during the development of the NSPS and EG for Commercial and Industrial Solid Waste Incineration (CISWI) units, 5 as well as additional test data submitted by the Alaska Oil and Gas Association (AOGA) for small remote incinerators (SRI) in Alaska (submitted in connection with a request that the EPA modify the SRI emission limits established in the February 7, 2013, final CISWI rule). 6 5 Includes emissions data collected from Phase II of the CISWI ICR survey used to support the March 21, 2011 CISWI final rule (76 FR 15704) as well as the 2013 CISWI final reconsideration (78 FR 9112, February 7, 2013). 6 As further discussed in sections II.B.1 and II.B.2 of this preamble, the EPA has re-evaluated the applicability of the CISWI rules to certain incinerators burning more than 30-percent MSW and is also proposing to revise the OSWI rules such that the OSWI standards will be applicable to these incinerators, which would be treated as VSMWC units. G. What are the incremental costs and benefits of this action? We have estimated that this proposed rule will decrease burden by $57,000 annually. We anticipate about 31 tons per year in emission reductions in the CAA section 129 pollutants as a result of the proposed amendments. See section III of this preamble for additional information. II. OSWI Review and Proposed Revisions A. CAA Section 129(a)(5) Review 1. How did the EPA conduct the review under CAA section 129(a)(5)? In conducting periodic reviews under CAA section 129(a)(5), the EPA attempts to assess the performance of and variability associated with control measures affecting emissions performance at sources in the subject source category (including the installed emissions control equipment), along with developments in practices, processes, and control technologies. For development of the proposed rule, the EPA reviewed available performance data for currently operating OSWI units or the best representative sources. In reviewing the standards based on currently available emissions information, we address the CAA section 129(a)(5) review's goals of assessing the performance efficiency of the installed equipment and ensuring that the emission limits reflect the performance of the technologies required by the MACT standards. In addition, we considered whether new technologies and processes and improvements in practices have been demonstrated at sources subject to the 2005 OSWI rule. Our review focused on identifying OSWI units to develop an inventory of units and evaluating developments in processes and control technologies that have occurred since the OSWI standards were promulgated. Where we identified additional units or new developments at units, we analyzed their emissions and controls and the technical feasibility, estimated costs, energy implications, and non-air environmental impacts of any identified controls. We also considered emission reductions associated with applying each development, if any. This analysis informed our decision of whether to revise the OSWI emissions standards. In addition, we considered the appropriateness of applying controls to new sources versus retrofitting existing sources. For these purposes, we considered any of the following to be a development: • Any add-on control technology or other equipment that was not identified and considered during development of the original standards; • any improvements in previously identified and considered add-on control technology or other equipment that could result in additional emissions reduction; • any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the original standards; and • any significant changes in the cost (including cost effectiveness) of applying controls (including controls the EPA considered during the development of the original standards). In addition to reviewing the processes and control technologies that were considered at the time we originally developed the OSWI standards, we reviewed, as discussed in sections I.E and I.F of this preamble, a variety of data sources in our investigation of potential processes or controls to consider. 2. Results and Proposed Actions From the EPA's CAA Section 129(a)(5) Review We identified limited emissions data for three out of four OSWI units from the NEI, and emissions test data for two new large OSWI units from state permit documentation that demonstrate compliance with the OSWI standards through use of add-on control devices similar to those considered during the original OSWI rule development. From the limited data available, we did not identify any new developments in practices, processes, or control technologies for any OSWI units. Based strictly on our 5-year review analysis, we do not believe that any changes to the OSWI standards are appropriate, and, accordingly, the EPA is not proposing any revisions pursuant to CAA section 129(a)(5). B. What other actions are we proposing? Although not predicated on the CAA section 129(a)(5) review, the EPA is taking the opportunity to propose certain changes to the OSWI standards in light of other developments and our experience with the CAA section 129 solid waste incinerator rules, as well as considerations associated with the 2016 remand of the 2005 OSWI standards. Thus, we are proposing changes to OSWI sub-categories and related MACT floor recalculations. Additionally, we are proposing other applicability-related and definitional changes. These proposed revisions are discussed in sections II.B.1 and II.B.2 of this preamble. We are also proposing changes to the SSM provisions; the testing, monitoring, recordkeeping, and reporting requirements; the applicability of title V permitting for certain ACIs; and miscellaneous other technical and editorial changes to the regulatory text. These proposed changes are discussed in sections II.B.3 through II.B.8 of this preamble. 1. Proposed Revisions to the MACT Floor We are proposing MACT floor recalculations for the OSWI source category in light of the 2016 voluntary remand of judicial proceedings relating to the OSWI standards, as well as public comments regarding the final OSWI standards (70 FR 74870, December 16, 2005) that raised issues that, upon further consideration, we believe should be readdressed. At the time the EPA set the OSWI standards, we lacked emissions data on OSWI units, and the emission limits were based on information for similar sources in the hospital, medical, and infectious waste incineration (HMIWI) unit source category, considering the similarities in combustion unit size, design, operations, and waste composition between OSWI and HMIWI units. 7 We have now collected additional information on two new OSWI units (constructed after the OSWI standards were issued) and emissions information for certain existing small incineration units located in Alaska that previously have been regarded as CISWI units, as small remote incinerators (SRI), but—under this proposal—are treated as OSWI units. 8 We are proposing to consider the existing SRI units as VSMWC units subject to the OSWI standards. In light of the voluntary remand and the additional data gathered, we are proposing revised subcategories and MACT standards that better reflect actual emissions test data from OSWI units and the population of OSWI. These standards are based, in part, on the size of the OSWI unit. The proposed standards are more representative of and better reflect the emissions achievable for new and existing units in each category required under CAA sections 129(a)(2) and (4). 7 The 2005 MACT standards were developed based on the best representative sources. For new IWI and VSMWC units, the MACT floor emission limits were based on emissions information from HMIWIs similar in size, design, and operation and using medium-efficiency wet scrubbers for emissions control. For existing IWI and VSMWC units, the EPA considered the MACT floor based on emissions test information from small, uncontrolled, modular/starved air municipal waste combustion (MWC) units that were collected during the MWC regulatory development process. However, the EPA had also identified one existing OSWI unit, an IWI unit, with a medium efficiency wet scrubber. Therefore, the EPA ultimately set beyond-the-floor standards for existing OSWI reflecting the use of a medium-efficiency wet scrubber, based on the emission limits that were achievable considering the available HMIWI data. 8 The CISWI NSPS are found at 40 CFR part 60, subpart CCCC, and the EG are found at 40 CFR part 60, subpart DDDD (collectively the “CISWI standards”). The CISWI standards initially were promulgated in 2000 (60 FR 75338) and revised in 2005 (70 FR 55568), 2011 (76 FR 15704), 2013 (78 FR 9112), and 2016 (81 FR 40956). The CISWI standards generally apply to operating units of commercial or industrial facilities that combust solid waste (see, e.g., 40 CFR 60.2015 and 60.2265). The CISWI standards cover certain small, remote incinerators (SRI) that combust three TPD or less of solid waste and are located more than 25 miles from a MSW landfill (see, e.g., 40 CFR 60.2265). The EPA did not previously address SRI units in the OSWI standards. At the time the OSWI standards were promulgated, we contemplated regulating the small incinerators that are located at commercial businesses or industrial sites as CISWI units under future revisions to the final CISWI rules (70 FR 74882). Prior to revising the CISWI standards, we had insufficient information about the small units operated in the commercial and industrial facilities ( e.g., operating at oil exploration sites or oil-field based camps) to determine if they could be treated as VSMWC units. In 2010, in connection with a CISWI rulemaking, the EPA conducted an Information Collection Request (ICR) to collect data for these small incinerators. The data, however, did not provide detailed information on the type of waste these units were burning ( i.e., industrial waste or municipal-type waste generated onsite) and the percentages of each type being combusted. Consistent with our stated intent during the OSWI rulemaking, the EPA set the emission standards for the SRI subcategory under the CISWI rule because such combustion units are located at commercial/industrial facilities (typically in isolated areas of Alaska). In June 2017, AOGA submitted to the EPA data that provided additional information on waste characterization for SRI in Alaska. The new data indicated that most such units burn more than 30-percent municipal type solid waste; that is, the type of waste material—regardless whether it is collected from households, the general public, institutions, commercial or industrial operations, or some combination—that is typically regarded as municipal waste. Based on the new information provided by AOGA in 2017 and a re-evaluation of the OSWI definition of MSW and related terms, we reconsidered the dividing line between the OSWI standards and the CISWI standards. Units that combust more than 30 percent MSW, even units located at commercial or industrial facilities, that otherwise meet the definition of VSMWC (as proposed herein), including units with a capacity of three TPD or less located away from MSW landfills, should be subject to the OSWI rule instead of the CISWI standards. 9 Consistent with this revised approach on the coverage or applicability of the OSWI standards, we have considered the information from AOGA in recalculating the MACT floors—for certain subcategories of OSWI units. 9 Incinerators that burn less than 30-percent MSW and are located at an industrial or commercial facility, including SRI, would remain subject to the CISWI rule. However, the units under consideration here are burning greater than 30-percent MSW, according to AOGA members. For a more detailed discussion of OSWI applicability-related issues and proposals relating to OSWI definitions, see the discussion in section II.B.2 of this preamble. As noted in section I.F of this preamble, we have also gathered emissions information on two OSWI units constructed since 2005, with waste capacities greater than 10 TPD (but less than 35 TPD), including one at a Texas facility and one at a facility in Arizona. Both of these units are continuously-fed rotary combustors that use add-on air pollution control devices, including wet and dry scrubbers and fabric filters, to comply with the current OSWI standards. In light of the design and compliance information obtained for two OSWI units (one in Arizona and one in Texas) and the addition of design and operational information from the CISWI ICR and the AOGA for the SRI units, we are proposing to subcategorize IWI and VSMWC units based on size. The two subcategories proposed are large units that have capacities greater than 10 TPD and small units that have capacities less than or equal to 10 TPD. For incineration units, differences in size typically reflect differences in operation and equipment complexity. Units with capacities less than or equal to 10 TPD typically feed waste to the unit in batches and some units may not even be equipped with stacks. Units larger than 10 TPD typically feed waste to the unit continuously or semi-continuously and also typically have stacks or flues that can be routed to air pollution control devices. Therefore, we are proposing subcategories as follows: (1) VSMWC units with a capacity to combust less than or equal to 10 TPD of MSW or refuse-derived fuel; (2) IWI units with a capacity to combust less than or equal to 10 TPD of institutional waste; (3) VSMWC units with a capacity to combust greater than 10 TPD of MSW or refuse-derived fuel (but less than 35 TPD); and (4) IWI units with a capacity to combust greater than 10 TPD of institutional waste. In connection with this size-based sub-categorization, we are also proposing to add a definition of “small OSWI unit,” a unit with a capacity less than or equal to 10 TPD. (Accordingly, the term “small OSWI unit” will be used, hereinafter, to refer to units with capacities less than or equal to ten TPD.) Based on the updated inventory, emissions, and waste data provided by AOGA, we have developed revised emission limits for existing small OSWI units, using the average emission limitation of the best performing 12 percent of such sources and also considering variability in emissions, consistent with CAA section 129(a)(2). To calculate the MACT floor emission limits for small existing OSWI sources, we considered the available test run data 10 provided in response to the 2010 ICR and test data from 2014 submitted in June 2017 by AOGA in their attempt to address concerns that they had with the 2010 ICR data pertaining to the emissions test data representativeness and waste variability. In the MACT floor analysis, we used the run data from the 2010 and 2014 emission tests to calculate the 99th percentile upper limits (UL) statistical interval for the best 12 percent of such incineration units for each pollutant to address the range of operating conditions of the incinerator. The UL is a common statistical interval used to address variability and was the same statistical interval used to calculate the CISWI SRI emission limits (76 FR 15723, March 21, 2011). 10 Run data includes the emissions data captured during a stack test comprising at least three sampling runs. In addition to addressing the range of operating conditions of the incinerator, AOGA noted that the waste profile of the 2010 emissions test data was not representative of the range of wastes combusted during normal operations. The AOGA asserted that the testing sites seemed to misinterpret the goal of the testing and may have prepared “best case” waste for the 2010 testing instead of a more representative waste profile. To address this, accompanying the additional emission tests conducted in 2014, AOGA also submitted waste composition and elemental analysis data for nitrogen (N), Cd, Pb, Hg, chlorine, and sulfur in the wastes combusted (sometimes also referred to as the “fuel” in similar fuel variability factor (FVF) calculations used in boiler and CISWI standards for certain pollutants). We applied the EPA's previous analytical approach of calculating FVF to calculate an analogous “waste variability factor” (WVF) for small OSWI units since these units are not designed to co-fire waste with coal or other solid fuels, and applied this WVF to the 99-percentile UL calculation for the six pollutants that are influenced directly by waste composition; Cd, HCl, Pb, Hg, SO 2 , and NO X . A detailed discussion of the emission limit calculation can be found in the memorandum, OSWI Emission Limit Calculations for Existing and New Sources, which is available in the docket for this action. The new proposed emission limits for the pollutants regulated under CAA section 129(a)(4) (Cd, HCl, Pb, Hg, SO 2 , NO X , PM, DF, and CO) are shown in Table 2 of this preamble. We are providing two options for limits for DF, one based on the total mass basis (TMB) and one based on the toxic equivalency factor (TEQ). As we have done for other CAA section 129 standards, sources may meet one or the other of the DF limits, but are not required to meet both. We are proposing to apply these revised emission limits for small VSMWC and IWI units (with capacity less than or equal to 10 TPD of solid waste), as the data reflect our best knowledge of existing OSWI units of this size. Table 2—Revised OSWI Standards for Existing Small OSWI Units 1 Pollutant Concentration units Revised emission limit Cd µg/dscm 2 2,000 HCl ppmvd 3 500 Pb µg/dscm 32,000 Hg µg/dscm 69 SO 2 Ppmvd 130 NO X Ppmvd 210 PM mg/dscm 280 DF (TMB) 4 ng/dscm 5 4,700 DF (TEQ) 4 ng/dscm 86 CO Ppmvd 220 1 Emission limits are for small existing VSMWC and IWI units with capacities less than or equal to 10 TPD. 2 Micrograms per dry standard cubic meters. 3 Parts per million by dry volume. 4 For DF, you must meet either the TMB limit or the TEQ limit. 5 Nanograms per dry standard cubic meters. We are also proposing to revise the MACT floors for new, small OSWI units (both VSMWC and IWI). Section 129(a)(2) of the CAA requires that MACT for new sources be no less stringent than the emissions control achieved in practice by the best controlled similar unit. Therefore, the approach for new sources was similar to that used with the existing sources ( i.e., 99 percentile UL with FVF applied for the pollutants influenced by waste composition), except the top performing unit's data were used to calculate the MACT floor emission limit instead of the average of the best performing 12 percent of units. A detailed discussion of the emission limit calculation can be found in the memorandum, OSWI Emission Limit Calculations for Existing and New Sources, which is available in the docket for this action. The new source emission limits are shown in Table 3 of this preamble. Table 3—Revised OSWI Standards for New Small OSWI Units 1 Pollutant Concentration units Revised emission limit Cd µg/dscm 400 HCl ppmvd 210 Pb µg/dscm 26,000 Hg µg/dscm 12 SO 2 ppmvd 38 NO X ppmvd 180 PM mg/dscm 210 DF (TMB) ng/dscm 3,100 DF (TEQ) ng/dscm 40 CO ppmvd 69 1 Emission limits are for small new VSMWC and IWI units with capacities less than or equal to 10 TPD. For OSWI units that are not small OSWI units, we have not recalculated the MACT floors and are not proposing any changes to the emissions limitations. As mentioned before, large VSMWC and IWI units (with capacities greater than 10 TPD) have a different design and mode of operation than small OSWI units. We do not have sufficient information on these units that would enable us to revise the MACT floor for these existing OSWI units, and we are not proposing any changes to the current OSWI limits for existing sources for these units. Emissions data for two units in this size category demonstrate that sources require use of add-on control devices similar to those considered in the development of the 2005 OSWI standards to meet the emission limits, which supports our decision to retain the 2005 OSWI emission limits for this OSWI subcategory. Information provided on the units shows that the units are meeting the current OSWI emission limits and are in compliance with the current rule. We are not proposing any changes to the current OSWI emission limits for VSMWC and IWI units with capacities greater than 10 TPD (new and existing). The EPA also examined whether it was appropriate to adopt more stringent “beyond-the-floor” regulatory options to determine MACT. Unlike the floor minimum stringency requirements, the EPA must consider various impacts of the more stringent regulatory options in determining whether MACT standards are to reflect “beyond-the-floor” requirements, including considering the costs, non-air quality health and environmental impacts, and energy requirements of such more stringent control. Small OSWI units often are of very basic, rudimentary design and function, as discussed in section II.B.4 of this preamble. Requiring additional controls on small OSWI units is infeasible or simply would be cost prohibitive. For OSWI units with capacities greater than 10 TPD, the 2005 final rule already incorporated beyond-the-floor requirements. We do not have sufficient information for large OSWI units that would enable us to revise the beyond the floor limits in this action. However, based on the information we have from the 2005 rule, requiring any further controls would likely only provide minimal emissions reductions with substantial cost investments. Considering these factors, we concluded that revised beyond-the-floor limits are unreasonable for the OSWI subcategories. A more detailed discussion of the beyond-the-floor analyses is provided in the memordandum, OSWI Emission Limit Calculations for Existing and New Sources, which is available in the docket for this action. In the 2005 final OSWI rule, we also established opacity standards for ACI units that would otherwise meet the definitions of IWI or VSMWC units, but burn only 100-percent wood wastes, 100-percent clean lumber, 100-percent yard waste, or 100-percent mixture of only wood waste, clean lumber, and yard waste. We are not proposing any changes to the opacity standards for these units. However, ACIs that do not burn only 100-percent wood wastes, clean lumber, or yard wastes and that would meet the definition of an IWI or VSMWC unit would be required to meet the applicable OSWI standards. The emission limits, including the proposed revised limits for small OSWI units and the (unchanged) limits for units with capacities greater than 10 TPD, are summarized in Table 4 of this preamble. Table 4—Limits for OSWI Units, Including Proposed Limits for Small OSWI Units Pollutant Concentration units Existing VSMWC and IWI units Small 1 Large 2 New VSMWC and IWI units Small 1 Large 2 Cd µg/dscm 2,000 18 400 18 HCl ppmvd 500 15 210 15 Pb µg/dscm 32,000 226 26,000 226 Hg µg/dscm 69 74 12 74 SO 2 ppmvd 130 3.1 38 3.1 NO X ppmvd 210 103 180 103 PM mg/dscm 280 30 210 30 DF (TMB) ng/dscm 4,700 33 3,100 33 DF (TEQ) ng/dscm 86 - 3 40 - 3 CO ppmvd 220 40 69 40 1 Small units include those with capacity less than or equal to 10 TPD. 2 Limit basis is from 2005 OSWI Rule. For PM, the 2005 OSWI standard is shown as mg/dscm rather than grains per dscf. 3 DF TEQ basis was not calculated for the 2005 rule. 2. Proposed Revisions to Applicability of OSWI Requirements We are proposing two changes to the applicability of the OSWI standards in order to resolve inconsistent definitions between OSWI and other CAA section 129 rulemakings, and update aspects of the rule that we have reconsidered based on new data. The proposed changes include (1) removing the definition of the term “collected from” as used in, and limiting the definition of, “municipal solid waste” in order to place the focus on the source and type or nature of the waste, rather than the manner in which is it “collected” and (2) modifying the OSWI definition of “municipal waste combustion unit” to make it clear that pyrolysis/combustion units are not OSWI units. First, we are clarifying that the applicability of the OSWI standards to VSMWC units is based on the source and type or nature of waste incinerated rather than the particular manner in which the waste is collected. The regulatory history of the MWC rules indicates that the EPA intended to determine the applicability of the MWC rule based on the type of waste combusted in a unit and not based on the location of the incineration unit (54 FR 52261, December 20, 1989). The 2005 OSWI rule finalized a definition of “municipal solid waste” that was similar to the definition of “municipal waste” provided in CAA section 129(g)(5), but interpreted this, for the purposes of VSMWC applicability under OSWI, to mean that the municipal waste must be “collected from” certain or multiple sites. We have since re-evaluated our interpretation in OSWI where the rule explains municipal waste must be limited to those collected from outside the site of the incinerator. Other existing CAA section 129 incinerator rules do not necessarily place the same emphasis on where the waste is collected. The principal MWC rules, for example, do not focus on or even define “collected from,” and, instead, more broadly include materials discarded by a wide range of sources, regardless of how or where the waste may be “collected” (see, e.g., 40 CFR 60.51b and 60.1465). We are proposing to modify the definitions in the OSWI standards to remove the specific definition of “collected from” and, thus, to eliminate the limitation that waste may not be burned at the same site where it is generated in order for it to be considered MSW. We are, accordingly, proposing a different approach to the treatment of MSW under the OSWI standards than we opted to pursue when the standards were promulgated. There, we stated that “small incinerators that are located at commercial business (such as stores, restaurants and apartments) or industrial sites are not VSMWC units because they do not burn waste which has been `collected from.' ” (70 FR 74882). Under this proposal, such incinerators would no longer be subject to this “collected from” limitation and would qualify as VSMWC (provided these units burn more than 30-percent MSW). 11 We believe this approach is more consistent with the EPA's other CAA section 129 MWC rules. We also believe, on further review, that this approach is more consistent with the CAA section 129 definition of “municipal waste.” Section 129(g)(5) of the CAA essentially defines the term “municipal waste” to mean refuse “collected from the general public and from residential, commercial, institutional, and industrial sources consisting of paper, wood, yard wastes, food wastes, plastics, leather, rubber and other combustible materials and non-combustible materials such as metal, glass and rock.” We do not read this definition as necessitating that, to constitute MSW, the material or refuse must be a cumulative collection of refuse from each and every one of the sources identified (that is, the “general public,” “residential,” or “commercial” sources) or even necessarily of multiple such sources. Moreover, the term “collected from” is not defined in the CAA, and we do not read it as necessarily requiring (for waste to be considered MSW) that the waste must be transferred from one site and burned at another site. 11 An incinerator is not considered to be combusting MSW “if it combusts a fuel feed stream, 30 percent or less of the weight of which is comprised, in aggregate, of municipal solid waste.” See, e.g., 40 CFR 60.2977. Next, we are proposing to revise the OSWI definition of “municipal waste combustion unit” to remove the reference to “pyrolysis/combustion units.” The term is not defined in the current regulation and there is no similar specific reference to such units in the institutional waste incineration unit definition. In the preamble to the OSWI standards, we briefly stated that “pyrolysis/combustion units (two chamber incinerators with a starved air primary chamber followed by an afterburner to complete combustion) within the VSMWC and IWI subcategories are considered OSWI units” (70 FR 74876 and 74877). In the recent past, however, the EPA has received several inquiries about OSWI applicability to pyrolysis/combustion units, and we believe that there is considerable confusion in the regulated community regarding the reference to pyrolysis/combustion units in the definition of municipal waste combustion unit. Upon further review of the language in the final OSWI rule (70 FR 74876 and 74877), we believe the reference to pyrolysis/combustion units as MWC should not apply to OSWI units because such units are used to combust uncontained gases and do not involve the combustion of solid waste as defined in the OSWI rule. See 70 FR 74877 (where we noted that units that are used to combust uncontained gases and are not used to dispose of solid waste generally are not subject to the OSWI standards). An OSWI unit is either a VSMWC or an IWI, and both types of units combust “solid waste.” Solid waste includes solid, liquid, and semisolid material. Solid waste also includes “contained gaseous material,” defined as gases that are in a container when that container is combusted (40 CFR 60.2977, 60.3078). The combustion of uncontained gases in pyrolysis/combustion units is inconsistent with the definition of solid waste and the associated definition of “contained gaseous material” in OSWI, and therefore, with solid waste combustion for the purpose of the OSWI rule. The EPA understands pyrolysis to be a process that takes place in an inert environment. In a closely coupled pyrolysis/combustion chamber, the gaseous material comes out of the pyrolysis chamber and immediately is incinerated in the combustion chamber. The pyrolysis gas is not placed into a container and then combusted. Therefore, the pyrolysis gas in the closely coupled pyrolysis/combustion chamber is not “contained gaseous material,” as referenced in the definition of solid waste. We noted in connection with the promulgation of the OSWI standards that thermal oxidizers, catalytic oxidizers, and flameless thermal oxidizers are not considered to be subject to the OSWI rule if these units are used to combust uncontained gas from an industrial process (70 FR 74877). Moreover, unlike combustion, the pyrolysis process is endothermic and does not require the addition of oxygen ( i.e. the partial pressure of oxygen during a pyrolysis process is maintained close to zero). Based on this understanding, we recognize that the pyrolysis process, by itself, is not combustion. In summary, because the pyrolysis itself is not combustion and pyrolysis gases are not a “solid waste” under OSWI, a pyrolysis-combustion unit should not be referenced in the definition of MWC unit for the purposes of the OSWI rule. 12 Accordingly, we are proposing to revise the definition of “municipal waste combustion unit” in 40 CFR 60.2977 and 40 CFR 60.3078 to remove the reference to “pyrolysis/combustion units” from the definition, reflecting our view that such units should not be regarded as municipal waste combustion units under the OSWI rule. 12 Discarded material that is processed in such a unit would still be a solid waste under the Resource Conservation and Recovery Act (RCRA), and, therefore, subject to state RCRA Subtitle D solid waste management program requirements. In the case of hazardous waste, RCRA sections 3002(a) and 3004(a) grant the EPA the authority to control gaseous emissions from hazardous waste management as may be necessary to protect human health and the environment. RCRA sections 3004(n), and (o)(1)(B), further direct the EPA to regulate air emissions from, respectively, hazardous waste treatment, storage and disposal facilities, and hazardous waste incinerators. The authority provided in RCRA section 3004(q) to regulate fuel produced from hazardous waste also encompasses gaseous fuels (when they are produced from hazardous wastes). The authority provided in RCRA section 3004(u) to control “releases” of hazardous constituents from solid waste management units at a facility seeking a RCRA permit also encompasses gaseous releases (when the gases are hazardous constituents). The authority granted under these sections of the statute is independent of the EPA's authorities over solid waste. As an example, the EPA has authority to regulate emissions generated during treatment of hazardous waste, including volatilization and incineration of hazardous waste. 3. Proposed Removal of SSM Provisions Currently, the OSWI standards do not apply during SSM periods (see 40 CFR 60.2918, 60.3025). The EPA proposes to eliminate this limitation or qualification on the applicability of the OSWI standards. The EPA proposes this change in light of the 2016 remand and certain legal developments, including a decision by the D.C. Circuit that invalidated certain regulations related to SSM in the 40 CFR part 63 General Provisions ( Sierra Club v. EPA, 551 F.3d 1019 (2008)). While the decision did not specifically address the SSM provisions in the OSWI standards, it calls those provisions into question. We are not proposing separate emission standards for OSWI units that would apply during SSM periods. We determined that OSWI units will be able to meet the emission limits during periods of startup because most units burn natural gas or clean distillate oil to start, and waste is not added until the unit has reached combustion temperatures. Emissions from burning natural gas or distillate fuel oil would generally be significantly lower than from burning solid wastes. During shutdown periods, emissions are also generally significantly lower than emissions during normal operations because the materials in the incinerator will be almost fully combusted before shutdown occurs. Control of the lower emissions during startup and shutdown should be able to be accomplished using the same technological controls required for emissions during normal operations. Furthermore, the approach for establishing the revised MACT floors for OSWI units ranked individual OSWI or similar units based on actual performance for each pollutant, with an appropriate accounting of emissions variability. Because we accounted for emissions variability and established appropriate averaging times to determine compliance with the proposed OSWI standards, we believe we have adequately addressed any minor variability that may potentially occur during startup or shutdown. However, we note that we do not have available data for OSWI units during periods of startup and shutdown. We request comment on the proposed removal of the SSM provisions and the proposal to leave in place the OSWI standards during SSM periods, including any additional information for consideration for startup and shutdown periods for OSWI units. Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment (see 40 CFR 60.2). The EPA interprets CAA section 129 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 129 standards. Under CAA section 129, emissions standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source and for existing sources generally must be no less stringent than the average emission limitation “achieved” by the best performing 12 percent of sources in the category. There is nothing in CAA section 129 that directs the Agency to consider malfunctions in determining the level “achieved” by the best performing sources when setting emission standards. As the D.C. Circuit has recognized, the phrase “average emissions limitation achieved by the best performing 12 percent of” sources “says nothing about how the performance of the best units is to be calculated.” Nat'l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1141 (DC Cir. 2013). While the EPA accounts for variability in setting emissions standards, nothing in CAA section 129 requires the Agency to consider malfunctions as part of that analysis. The EPA is not required to treat a malfunction in the same manner as the type of variation in performance that occurs during routine operations of a source. A malfunction is a failure of the source to perform in a “normal or usual manner” and no statutory language compels the EPA to consider such events in setting CAA section 129 standards. The EPA's approach to malfunctions in the analogous circumstances (setting “achievable” standards under CAA section 112) has been upheld as reasonable by the D.C. Circuit in U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016). As the D.C. Circuit recognized in U.S. Sugar Corp., accounting for malfunctions in setting standards would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur. Id. at 608 (“the EPA would have to conceive of a standard that could apply equally to the wide range of possible boiler malfunctions, ranging from an explosion to minor mechanical defects. Any possible standard is likely to be hopelessly generic to govern such a wide array of circumstances.”) As such, the performance of units that are malfunctioning is not “reasonably” foreseeable. See, e.g., Sierra Club v. EPA , 167 F.3d 658, 662 (D.C. Cir. 1999) (“The EPA typically has wide latitude in determining the extent of data-gathering necessary to solve a problem. We generally defer to an agency's decision to proceed on the basis of imperfect scientific information, rather than to ‘invest the resources to conduct the perfect study. ”) See also, Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (“In the nature of things, no general limit, individual permit, or even any upset provision can anticipate all upset situations. After a certain point, the transgression of regulatory limits caused by `uncontrollable acts of third parties,' such as strikes, sabotage, operator intoxication or insanity, and a variety of other eventualities, must be a matter for the administrative exercise of case-by-case enforcement discretion, not for specification in advance by regulation.”). In addition, emissions during a malfunction event can be significantly higher than emissions at any other time of source operation. For example, if an air pollution control device with 99-percent removal goes off-line as a result of a malfunction (as might happen if, for example, the bags in a baghouse catch fire) and the emission unit is a steady state type unit that would take days to shut down, the source would go from 99-percent control to zero control until the control device was repaired. The source's emissions during the malfunction would be 100 times higher than during normal operations. As such, the emissions over a 4-day malfunction period would exceed the annual emissions of the source during normal operations. As this example illustrates, accounting for malfunctions could lead to standards that are not reflective of (and significantly less stringent than) levels that are achieved by a well-performing non-malfunctioning source. It is reasonable to interpret CAA section 129 to avoid such a result. The EPA's approach to malfunctions is consistent with CAA section 129 and is a reasonable interpretation of the statute. Although no statutory language compels the EPA to set standards for malfunctions, the EPA has the discretion to do so where feasible. For example, in the Petroleum Refinery Sector Risk and Technology Review, the EPA established a work practice standard for unique types of malfunction that result in releases from pressure relief devices or emergency flaring events because the EPA had information to determine that such work practices reflected the level of control that applies to the best performers. 80 FR 75178, 75211 through 14 (December 1, 2015). The EPA will consider whether circumstances warrant setting standards for a particular type of malfunction and, if so, whether the EPA has sufficient information to identify the relevant best performing sources and establish a standard for such malfunctions. We note that there are no provisions for establishing work practice standards under CAA section 129. In the event that a source fails to comply with the applicable CAA section 129 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 129 standard was, in fact, sudden, infrequent, not reasonably preventable, and was not instead caused, in part, by poor maintenance or careless operation. 40 CFR 60.2 (definition of malfunction). If the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate. In summary, the EPA's interpretation of the CAA and, in particular, CAA section 129, is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations. U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016). For these reasons, we are proposing to remove and reserve 40 CFR 60.2918 and 40 CFR 60.3025, which provided exceptions for SSM. We are proposing minor harmonizing revisions to other rule requirements that reference SSM, such as revisions to the definition of “Deviation” to remove language for periods of SSM, for consistency with these changes. 4. Proposed Revisions to Testing and Compliance For small OSWI units, we are proposing alternatives to conducting the initial and annual performance tests and to remove the requirements to install, calibrate, maintain, and operate continuous emissions monitoring systems (CEMS). The OSWI standards currently require owners and operators of OSWI units to conduct initial and annual performance tests to demonstrate compliance (40 CFR 60.2927, 60.2932 and 60.3030, 60.3033). Owners and operators may conduct performance tests less often than annually for a given pollutant if they are able to demonstrate compliance with the emissions limitations for three consecutive annual tests (40 CFR 60.2934, 60.3035). The OSWI standards also require CEMS for CO and oxygen (40 CFR 60.2939, 60.3038). We are proposing a new substitute means of compliance demonstration for small OSWI units, as we recognize that testing can impose substantial financial burdens and technical challenges on owners and operators of these sources. Based on the limited information available, we expect that most OSWI units are likely small incinerators that are not equipped with stacks from which to sample emissions during a performance test, and a stack or extension would be needed in order to perform the testing required by the OSWI standards. In some instances, it physically may not be possible to equip the incinerator with a stack, and in other cases, costs for doing so may be prohibitive. Transporting, installing, and supporting the extension for testing in the field can present additional issues, such as space or property constraints that may require additional construction of scaffolding, ducting, or modifications to underlying structures to install the appropriate extensions and sampling ports. 13 Additionally, many of these small OSWI units are located in remote and difficult to access areas of the country, and it is difficult to mobilize stack testing crews to some of these locations. 13 The OSWI standards are found in 40 CFR part 60, subparts EEEE (NSPS) and FFFF (EG). In addition, subpart A (General Provisions) of part 60 contains various generally-applicable provisions, including provisions relating to performance testing (see, for example, 40 CFR 60.8). These generally-applicable performance testing provisions require, in part, owners and operators to provide performance testing facilities, including sampling ports. We believe, however, that for small OSWI units there could be significant challenges to conducting such modifications in the field to fit units at every site. In any event, the application of the General Provisions in subpart A to the other part 60 subparts is subordinate to the specific provisions found in the other subparts, such as the OSWI standards. See, for example, 40 CFR 60.8(b) (performance test shall be conducted in accordance with the methods and procedures in each applicable subpart), 60.8(f) (performance testing shall be conducted in a prescribed manner, unless otherwise specified in the applicable subpart), and 60.11 (compliance shall be determined in accordance with 40 CFR 60.8, unless otherwise specified in the applicable standard). Moreover, the EPA retains the authority to limit or modify the application of subpart A in subsequent rulemaking, including rulemaking relating to other part 60 subparts, such as the OSWI standards. In the event of a conflict between the performance testing provision of subpart A and the provisions of subparts EEEE and FFFF, the provisions of the source specific subparts (here, EEEE and FFFF) control. These technical and economic infeasibilities are magnified for existing sources, which have previously installed units that may have never been equipped with a stack and for which additional space or property modifications may be infeasible. Further, owners and operators may find it economically infeasible to conduct initial or annual performance tests of these small units due to the cost of stack testing. We believe that similar difficulties may arise in connection with monitoring, including installation and operation of CEMS. Although we recognize these challenges exist for certain sources, adequate demonstration of initial and on-going compliance is necessary. 14 Therefore, we are proposing alternatives to the testing and monitoring requirements to provide regulatory flexibilities for small OSWI units. 14 CAA 129(c) requires, in part, the EPA to include emissions monitoring as part of solid waste incinerator standards. This requirement has been construed as requiring assurance of compliance with emission standards. Nat'l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1160 (DC Cir. 2013). The EPA believes that, for the other solid waste incineration source category, the package of testing, monitoring, reporting, and recordkeeping requirements associated with the proposed substitute means of compliance testing for small OSWI units will adequately assure compliance with the standards. At present, the OSWI standards require new sources to conduct initial performance testing within 60 days after the OSWI unit reaches the charge rate by which it will operate, but not later than 180 days after initial startup (40 CFR 60.2928); existing sources must conduct initial performance testing no later than 180 days after the final compliance date. We are proposing to retain this requirement, but we are also proposing—for small OSWI units—to add a substitute means of compliance demonstration, under which such initial performance testing would not be required. In lieu of that initial performance testing, owners and operators of small OSWI units would have the option to submit detailed information concerning the unit—including the make, model and manufacturer of the unit, and the type and capacity of the unit, information on the unit's air pollution control devices (if any), waste type and quantity information, and the charge rate—and to identify in the EPA's WebFIRE database a representative performance test. 15 The test must be representative for the small OSWI unit in terms of similar throughput, method of processing and burning waste, operating temperatures, types of wastes or supplemental fuels burned, and waste profiles. If there is no representative performance test available in the WebFIRE database, the small OSWI unit cannot use the substitute means of compliance demonstration and must comply with the initial performance testing requirements. 15 Some tests in the WebFIRE database may not qualify for use as a representative performance test. Representative performance tests must be conducted according to the requirements in the OSWI rule, demonstrate compliance with the OSWI standards, and include the following information in the report: Unit design (including air pollution control devices), charge rate during the test, type of operation, combustion temperature during the test, types of waste burned during the test and the relative amount of each waste to the total waste burned, type and amount of supplemental fuels used during the test, and, if the tested unit has an air pollution control device, the operating parameter data for the control device during the test. To use this alternative option, the owner/operator must submit a notification including the manufacturer, make, model, and type of unit, and documentation that the capacity of the unit is less than or equal to 10 TPD. We are proposing that owners and operators of new small OSWI units (constructed after August 31, 2020) and small OSWI units modified or reconstructed six months after the effective date of the final rule would be required to either complete their initial performance test within 60 days after the unit reaches the charge rate at which it will operate, but no later than 180 days after its initial startup, 16 or submit a notification of intention to use the substitute means of compliance demonstration to the Administrator within 6 months after the date of publication of the final rule (currently estimated by the EPA—depending on the actual date of publication of the final rule—to be on or about November 30, 2021), or within 60 days after initial startup, whichever of these dates is later. Owners and operators of existing small units (constructed on or before August 31, 2020) would not be required to submit a notification of intention to the Administrator, but would be required to identify the results of an existing performance test in the EPA's WebFIRE that is representative of their OSWI unit or conduct an initial performance test, no later than 3 years after a state plan is approved or no later than 5 years after the date of promulgation of the final rule, whichever of these dates is earlier. 16 For units that start-up between August 31, 2020 and the date that is 6 months after publication of the final rule, the initial performance test must be conducted within 60 days after your OSWI unit reaches the charge rate at which it will operate, but no later than 180 days after its initial startup, or by the date 240 days after publication of the final rule (currently estimated by the EPA to be on or about February 28, 2022), whichever date is later. The proposed substitute means of compliance demonstration relies on the availability of the results of performance tests conducted on potentially representative sources in the EPA's WebFIRE database. One way the EPA envisions this option could be implemented is through one or more testing coordinators that would develop a testing protocol and conduct performance tests for representative units from similar source groups. 17 18 For example, each owner/operator opting to use the substitute means of compliance demonstration would submit to a testing coordinator information on its small OSWI unit, including unit design, operations information and waste profiles. It is our expectation that the testing coordinator would review the data provided and identify a representative unit for each similar source group, establish the waste profile for the similar source group, and coordinate and/or conduct the performance test on the representative unit from the similar source group. The results of the test could then be used to demonstrate initial compliance by owners and operators of any small OSWI unit for which the test is representative. To aid implementation of this option, the EPA intends to provide a grant or contract to testing coordinators. To conserve resources, if there are multiple testing coordinators, the testing coordinators should work together in conducting performance tests in order to provide performance test results that will be representative for the largest number of small OSWI units. 17 A “testing coordinator” may be, for example, a state or university that would collect waste data from a group of sources, form similar groups of facilities based of the information provided, develop a testing protocol, and conduct performance tests for representative units from similar source groups. 18 “Similar source groups” may include units of similar throughput, method of processing and burning waste, operating temperatures, waste variability, and estimated waste profiles. It is expected that a performance test conducted on one unit in a similar source group would likely be representative for all of the units in the similar source group. The proposed option would allow for a testing coordinator to have some latitude to determine what constitutes a similar source group. For example, the testing coordinator would have the discretion to test representative units for existing sources (constructed on or before August 31, 2020), and new sources (constructed after August 31, 2020), from similar source groups separately. Alternatively, the testing coordinator might be able to select a new source ( e.g., a model unit constructed after August 31, 2020, that has a similar design that would be carried forward into future years) from a similar source group that is also similar to existing sources. In this latter case, if the new unit tested is able to demonstrate initial compliance with the emissions limits for VSMWC and IWI units under the NSPS and EG, then both the existing and new units described by the similar source group may be able to use the test data to demonstrate initial compliance. Another way that the EPA envisions this representative testing alternative might be implemented is if owners and operators of small OSWI units that are similar in design and operation and burn the same waste types combine resources. One small OSWI unit in the group would be tested, and once the results are available in WebFIRE, that performance test would be used to demonstrate initial compliance for any small OSWI unit for which the test is representative. Beginning on the effective date for new sources (6 months after publication of the final rule in the Federal Register ), and until the owner/operator identifies a representative performance test, each owner/operator of a small OSWI unit would be required to collect data on a weekly basis to characterize the unit operations and the waste profiles for the OSWI unit. The waste profile information would be used to capture the differing waste streams and waste variability for the unit in order to develop a representative waste profile. The owner/operator would use these data to locate the results of a representative performance test in the EPA's WebFIRE database. The owner/operator would submit information on the representative performance test and documentation of how the performance test is representative for their small OSWI unit ( e.g., based on the unit type and design, charge rate, operating temperatures, types of waste burned, and any air pollution control devices) to the Administrator through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). Owners and operators would maintain a record ( i.e., copy) of the representative performance test report (acquired from the EPA's WebFIRE database) and the submitted documentation of how the test is representative. Because we anticipate this approach would need to afford time for testing coordinators to determine similar source groups, develop testing protocols, and coordinate with each other, owners and operators of existing and new small units who wish to use the substitute means of compliance demonstration are encouraged to submit their notification of intent to use the substitute means of compliance demonstration and identify their waste variability and waste characterization and profile data as soon as possible following the promulgation of the final rule. We note that, if this alternative initial compliance option is finalized, owners and operators who do not provide their initial waste characterization data to a testing coordinator in a timely manner could miss the opportunity to avail themselves of this option due to the amount of planning, time, and resources required for coordinators to perform these tests as well as the fact that their unit may not be of the similar source group tested. Owners and operators who cannot find a representative test conducted for a unit that is similar to their units would be required to conduct their own initial performance tests. Because the compliance date for new sources is earlier than the compliance date for existing sources, and it is uncertain how many tests could be conducted with the EPA-supplied grant or contract money, owners and operators of existing sources are encouraged to start collecting information that would be useful in conducting similar sources tests and submit this information to the testing coordinators as soon as possible. This will greatly increase the likelihood that a representative test is available in the WebFIRE database prior the compliance deadline. 19 19 When deciding the sources to test, a testing coordinator has multiple options: (1) Select an existing source similar to other existing sources; (2) select a unit that is representative of both new and existing sources; (3) select a new source that is similar to other new sources; and (4) select a unit with a design that would be carried forward into future years. The decision on which sources will be tested will be based in part on the pool of data that is available to the testing coordinator at the time that the testing protocols are developed. If the testing coordinator does not have data on existing sources, it may not be feasible to conduct performance tests that are representative for any existing units. If a performance test is conducted on an existing unit, it must, among other things, demonstrate initial compliance with the emissions limits for new units in order for a new unit to use it as a representative performance test. We anticipate that the testing coordinators would be able to complete testing on OSWI units that are representative of most existing and new small units and submit the results of the testing within 18 months of the date of publication of the final rule. The testing results for these potentially representative units will be submitted to the EPA's CEDRI, and would then be available to owners and operators in the EPA's WebFIRE database. (See section II.B.6 of this preamble for a discussion of electronic reporting.) We are proposing a time period of 21 months following the date of publication of the final rule in the Federal Register or 60 days after the OSWI unit reaches the maximum charge rate at which it will operate, but no later than 180 days after initial startup, whichever date is later, for owners and operators of small OSWI unts to identify a representative performance test in WebFIRE and submit information to the Administator identifying the representative performance test. This period allows time for a testing coordinator conducting the test to develop the testing protocol, conduct performance tests, and electronically submit the results of the test through CEDRI; for the EPA to transfer these results to the EPA's WebFIRE database; and for owners and operators to find a representative performance test and submit information on how it is representative to the Administrator. For demonstrating continuous compliance, we are also proposing, for small OSWI units, an alternative waste characterization option in lieu of the current annual performance testing requirements, as many of the concerns about the availability or feasibility of initial testing for small OSWI units also apply to annual testing. We are proposing the alternative continuous compliance option for small OSWI units in lieu of annual testing (or the requirements to conduct testing less often than annual for specific pollutants) because the option is a more readily available compliance option for units with rudimentary designs or units without a stack and the costs associated with waste stream characterization are less prohibitive than those for an annual stack test. This alternative continuous compliance demonstration option includes periodic, robust operational recordkeeping in lieu of conducting an annual performance test. Following the facility's initial performance test or representative performance test (if using the substitute means of compliance demonstration), an owner/operator would demonstrate continuous compliance through recordkeeping. The recordkeeping requirements would include recording the source-specific waste profiles and incinerator unit operating parameters, including the daily average charge rate and the 3-hour average combustion chamber temperature of the unit. To demonstrate compliance, the weekly records of the source-specific waste profile would need to indicate that the waste combusted is consistent, within +/− 15 percent by weight, of the percentage established for that waste category according to the waste profiles established during the representative performance test (if using the substitute means of compliance demonstration) or the facility's initial performance test. 20 Additionally, the records would need to demonstrate that the unit is operated within the charge rate and temperature ranges established during the initial performance test or the representative performance test. 20 If, for example, the paper component of the waste stream during initial testing was 20 percent then burning waste streams with a paper component between 5 and 35 percent of the total waste stream would be acceptable weekly operation and, assuming all other requirements are met, additional testing would not be required for the source. If the facility anticipates combusting a waste stream with a different profile, the owner/operator would be required to conduct a performance test of the unit with a waste stream representative of the new waste profile, or, alternatively, identify a representative performance test report in the WebFIRE database, before combusting the modified waste stream ( i.e., the owner or operator must identify that the unit is of similar throughput, method of processing and burning waste, charge rate, operating temperatures, waste management plan, estimated waste variability and waste profiles to the representative unit). Similarly, if the facility anticipates exceeding or operating outside of the established operating parameter ranges, the owner/operator would be required to conduct a performance test of the unit while operating at the new parameter limits (or find a representative performance test with those operating parameter limits in the WebFIRE database) to confirm that the unit continues to meet the OSWI emission standards under the new operating parameter limits. Failure to comply with the retesting requirement would constitute a deviation from the OSWI standards. Finally, we are proposing to modify the monitoring requirements for small OSWI units that use the alternative continuous compliance option in lieu of complying with the annual performance testing requirements by removing the requirement for CO and oxygen CEMS. We are proposing this change for the same reasons that we are proposing an alternative to the annual performance test. In addition to the cost of maintaining CEMS, part of calibrating a CEMS generally requires an annual stack test to verify the operation of the CEMS. Relieving owners and operators of small OSWI units of the obligation to conduct an annual performance test without likewise removing the requirement for CEMS, which includes performing an annual stack test, would not achieve the stated goals and benefits of removing the annual performance test. For OSWI units other than small OSWI units, we are also proposing that such units may use CO CEMS data in lieu of initial and annual testing for CO, provided the CEMS has been previously certified and is meeting the ongoing quality assurance/quality control requirements. Facilities that use this option would be allowed to use a 12-hour rolling average of the 1-hour arithmetic average CEMS data to determine compliance with the CO emission limitations. However, the initial performance evaluation (certification) must be conducted prior to collecting CEMS data for the initial compliance demonstration. Under the proposed rules, such units could also use CO CEMS data in lieu of conducting an annual performance test for CO. This proposed change would provide flexibility for sources and reduce the burden associated with testing, while assuring compliance based on continuously measured emissions data. 5. Proposed Recordkeeping and Reporting Revisions We are proposing several revisions to the recordkeeping and reporting requirements. A number of proposed recordkeeping changes are associated with the proposal to establish—for small OSWI units—a substitute compliance demonstration option (for initial performance testing, as well as continuous compliance testing). For small OSWI units using the substitute compliance demonstration process, we propose (in connection with the initial compliance test requirement) owners and operators will be required to maintain records of the notification of intent to use the substitute means of compliance demonstration and the documentation demonstrating the design, operation, and unit capacity, copies of the initial waste characterization and operating data, and documentation related to the representative (substitute) performance test and how the test is representative of the unit. The new proposed recordkeeping requirements for owners and operators of small OSWI units—and associated with the proposed substitute continuous compliance requirements—include records on such particulars as unit start and end times of operation, the quantity or weight of each waste type ( e.g., pounds of solid waste, food waste, wood or yard waste), the quantities of supplemental fuels burned (flow rate or percentage of operating time), percentage of each waste type of total waste burned, and the temperature (three-hour average) and charge rate (TPD), and records for units using air pollution controls such as a wet scrubber, dry scrubber, electrostatic precipitator, or fabric filters. The proposed recordkeeping is intended to help ensure that small OSWI units that choose the proposed substitute continuous compliance option are able to demonstrate compliance with the emission and operating limits of the OSWI standards. Among other things, the recordkeeping requirements help to demonstrate that the waste types burned by small OSWI units are within +/−15 percent of the percentages established for each waste category according to the profiles established during the initial performance test or representative performance test. We are also proposing reporting-related changes, especially changes associated with the substitute compliance testing program for small OSWI units. For example, we are proposing—for small OSWI units using the substitute continuous compliance option—that owners and operators would be required to include in annual reports a statement that there were no deviations from the weekly waste characterization requirements and the unit has been operated within the operating parameter limits. The proposed recordkeeping and reporting is intended to help ensure that there is adequate information available to determine compliance with the standards and the severity of any failure to meet a standard, and to further assure compliance with the standards at all times. We are also proposing to clarify the timeline for submittal of an annual report for owners and operators that choose to comply with the substitute means of compliance in lieu of an initial performance test; for these units, an annual report must be submitted no later than 12 months following the submission of the representative performance test and the description of the how the test is representative for the OSWI unit. We are also proposing to revise the recordkeeping and reporting requirements for deviations, which apply to both large and small OSWI units. Currently, these requirements focus on identifying malfunctions and deviations from the emission limitations or operating limits that apply, including whether any monitoring system used to determine compliance with the emission limitations or operating limits was inoperative, inactive, malfunctioning or out of control. We are proposing several additional requirements to clarify that a deviation includes any “failure to meet an applicable standard” and what must be recorded and reported. The proposed changes include the following: • Revising the definition of “deviation” to remove language for periods of SSM, as discussed in section II.B.3 of this preamble. • Revising 40 CFR 60.2932(c) and 40 CFR 60.3033(c) to clarify the alarm time that constitutes a deviation from the operating limit for OSWI units with fabric filters and bag leak detection systems. • Revising 40 CFR 60.2932(d) and 40 CFR 60.3033(d) to include deviations from the weekly waste characterization requirements, provide for performance testing when the waste profile of the OSWI unit is modified, and clarify that failure to conduct a performance test or identify a representative test when the waste profile has changed constitutes a deviation. • Revising 40 CFR 60.2942(f) and 40 CFR 60.3033(f) to clarify that, for OSWI units using CEMS, failure to collect required data is a deviation of the monitoring requirements. • Revising 40 CFR 60.2949 and 40 CFR 60.3046 to specify that facilities must retain a record identifying the calendar dates, times, and durations of malfunctions and a description of the failure and the corrective action taken. • Revising 40 CFR 60.2956(e) and 40 CFR 60.3051(e) to clarify that for OSWI units with CMS, the annual report must include a statement that there were no periods during which the CMS were inoperative, inactive, malfunctioning or out of control. • Removing deviation reporting requirements (40 CR 60.2956(g); 40 CFR 60.3051(g)) previously included as part of the annual report to remove redundant reporting; these requirements are included in the deviation report submitted on a semiannual basis (40 CFR 60.2958; 40 CFR 60.3053). • Modifying the annual reporting requirements in 40 CFR 60.2956 and 40 CFR 60.3051 to require facilities to provide a statement that there was no deviation identified from the weekly waste characterization ( i.e., the waste types burned are within 15-percent variation of the profiles established during the initial performance test) and the unit has been operated within the charge rate and temperature ranges established when no deviations have occurred during the reporting period. • For deviation reporting, revising the title of 40 CFR 60.2957 and 60.3052 to “What other reports must I submit if I have a deviation?”, and reorganizing these sections to be consistent with the definition of “deviation” and in order to better reflect the types of deviations which must be reported. • Clarifying the requirements of 40 CFR 60.2958 and 40 CFR 60.3053 to clarify the contents of the deviation report, including identifying the calendar dates, times, and durations of any deviations and a description of any corrective actions taken, and adding new requirements to report deviations from the weekly waste characterization and operating parameter limits established for small OSWI units. We are proposing additional changes to the recordkeeping and reporting requirements that include consistency edits based on the proposed revisions to allow for use of CO CEMS data in lieu of annual testing for CO (for OSWI units that have capacities greater than 10 TPD), and proposed revisions to the monitoring requirements that ensure consistency with other CAA section 129 rules ( e.g., adding operating parameters for controls other than a wet scrubber that may be employed for OSWI units and clarifying the frequency of the data recording or averaging for each required operating parameter). These proposed changes to the monitoring requirements are described further in sections II.B.4 and II.B.8 of this preamble. 6. Proposed Requirements for Electronic Reporting The EPA is proposing that owners and operators of OSWI units submit electronic copies of required performance test reports, performance evaluation reports, deviation reports, and annual compliance reports through the EPA's CDX using CEDRI. A description of the electronic data submission process is provided in the memorandum, Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, which is available in the docket for this action. The proposed rule requires that performance test results collected using test methods that are supported by the EPA's Electronic Reporting Tool (ERT) as listed on the ERT website 21 at the time of the test be submitted in the format generated through the use of the ERT, or an electronic file consistent with the extensible markup language (XML) schema on the ERT website, and that other performance test results be submitted in portable document format (PDF) using the attachment module of the ERT. Similarly, performance evaluation results of CEMS measuring relative accuracy test audit pollutants that are supported by the ERT at the time of the test must be submitted in the format generated through the use of the ERT, or alternatively, an electronic file consistent with the XML schema on the ERT website, and other performance evaluation results, be submitted in PDF using the attachment module of the ERT. 21 https://www.epa.gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert. For deviation reports and annual compliance reports, the proposed rule requires that owners and operators use the appropriate spreadsheet template to submit information to CEDRI. A draft version of the proposed templates for these reports is included in the docket for this action. 22 The EPA specifically requests comment on the content, layout, and overall design of the templates. Facilities would have 1 year from the date of publication of the final rule, or once the reporting forms have been made available in CEDRI for at least 1 year, whichever date is later, to submit these reports. 22 See OSWI_Annual_Report_Template.xlsx and OSWI_Deviation_Report_Template.xlsx , available at Docket ID. No. EPA-HQ-OAR-2003-015. Additionally, the EPA has identified two broad circumstances in which electronic reporting extensions may be provided. In both circumstances, the decision to accept the claim of needing additional time to report is within the discretion of the Administrator, and reporting should occur as soon as possible. The EPA is providing these potential extensions to protect owners and operators from noncompliance in cases where they cannot successfully submit a report by the reporting deadline for reasons outside of their control. The situation where an extension may be warranted due to outages of the EPA's CDX or CEDRI that preclude an owner or operator from accessing the system and submitting required reports is addressed in 40 CFR 63.2961(d) and 40 CFR 63.3056(d). The situation where an extension may be warranted due to a force majeure event, which is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents an owner or operator from complying with the requirement to submit a report electronically as required by this rule is addressed in 40 CFR 63.2961(e) and 40 CFR 63.3056(e). Examples of force majeure events are acts of nature, acts of war or terrorism, or equipment failure or safety hazards beyond the control of the facility. See proposed requirements at 40 CFR 60.2961 and 40 CFR 60.3056. The electronic submittal of the reports addressed in this proposed rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. Moreover, electronic reporting is consistent with the EPA's plan 23 to implement Executive Order 13563 and is in keeping with the EPA's Agency-wide policy 24 developed in response to the White House's Digital Government Strategy. 25 For more information on the benefits of electronic reporting, see the memorandum, Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, referenced earlier in this section. 23 The EPA's Final Plan for Periodic Retrospective Reviews of Existing Regulations, August 2011. Available at: https://www.regulations.gov/document?D=EPA-HQ-OA-2011-0156-0154. 24 E-Reporting Policy Statement for EPA Regulations, September 2013. Available at: https://www.epa.gov/sites/production/files/2016-03/documents/epa-ereporting-policy-statement-2013-09-30.pdf. 25 Digital Government: Building a 21st Century Platform to Better Serve the American People, May 2012. Available at: https://obamawhitehouse.archives.gov/sites/default/files/omb/egov/digital-government/digital-government.html. 7. Proposed Revisions to Title V Permitting Requirements for ACIs Burning Only Wood Waste, Clean Lumber, and Yard Waste The 2005 OSWI rule contains a regulatory requirement that ACIs that burn only wood waste, clean lumber, and yard waste must apply for an obtain a tile V operating permit. The EPA is proposing to eliminate this regulatory title V permitting requirement for such ACIs that are not located at a major source or subject to title V for other reasons. The EPA has received feedback from several states indicating that the title V requirements are unnecessarily burdensome and expensive for states to maintain for these ACIs. Based on available data, ACI that burn exclusively wood waste, clean lumber, and yard waste are commonly located at facilities that would not otherwise require a title V operating permit. 26 26 CAA section 129(e) generally requires title V permits for “solid waste incineration units.” Under CAA section 129(g)(1), however, the term “solid waste incineration unit” does not include air curtain incinerators that only burn wood wastes, yard wastes, and clean lumber (and that comply with opacity limitations). In addition, in our view, the opacity limitations applicable, under CAA 129, to such ACIs are not standards or regulations “under section 7411,” such that the ACIs would be subject to a title V permitting requirement under CAA section 502(a). In previous rulemaking, we provided for title V permitting for these ACIs for various reasons, as explained in the final OSWI rule (70 FR 74884-74885, Decemeber 4, 2005). In particular, we believed initially that compliance with a title V permit was necessary to assure compliance with the opacity requirements established for such incinerators. In this rulemaking we are reconsidering the need for a regulatory requirement for title V permitting for these air curtain incineration units that are only subject to an opacity limitation and related requirements to assure compliance, because such units are not considered solid waste incineration units under section 129. Also, based on input from various states on the burdens and costs of title V permitting for such incinerators, we no longer believe it is appropriate or necessary to require title V permitting. 8. Proposed Technical Edits, Clarifications, and Additional Revisions To Improve the OSWI Standards We are proposing several additional technical corrections, harmonizing changes, clarifications, and improvements to the OSWI standards that are intended to improve the understanding of the rule and to improve consistency with other CAA section 129 rules. We are proposing several harmonizing changes throughout the OSWI standards, in keeping with the proposed revisions discussed in sections II.B.1 through 7 of this preamble, to incorporate the revised emission limits, operating limits, alternatives to testing and monitoring, and recordkeeping and reporting. These harmonizing changes include incorporation of compliance dates and other revisions to clarify applicability of existing requirements to small OSWI units, such as revisions to the title of the standards to remove old compliance dates; redefining when a small OSWI unit is considered a new or existing incineration unit based on date of construction, reconstruction, or modification; clarifying the timeline for when the changes for small OSWI units become effective; and updating the timeline for the submittal of an operator training course, site-specific documentation, conduct of the initial performance test or substitute means of compliance demonstration, and submittal of title V reports for small OSWI units. For the emission guidelines, the proposed changes also include specifying the timeline of submittal and approval for revisions to state plans to include the requirements for small OSWI units, the compliance schedule that must be included in state plans, and the EPA's authority to implement and enforce a federal plan if a state plan is not approved. We are also proposing changes that would clarify and improve the organization of the rule, enhance readability, and improve compliance. In some cases, we are proposing to remove redundant language, for example, 40 CFR 60.2970(b) and 40 CFR 60.3062(b). These paragraphs repeat the requirements for ACIs burning only 100-percent wood waste, clean lumber, yard waste, or a mixture of these wastes, which are already provided in 40 CFR 60.2888(b) and 40 CFR 60.2994(b). We are also proposing revisions to add or correct cross-references to add clarity to existing requirements; for example, we are proposing to clarify the implementation and [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%3A2020-17730. Public record. Not legal advice.