[Federal Register: November 25, 2002 (Volume 67, Number 227)]
[Proposed Rules]
[Page 70639-70672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no02-28]
[[Page 70639]]
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Part II
Environmental Protection Agency
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40 CFR Part 62
Federal Plan Requirements for Commercial and Industrial Solid Waste
Incinerators Constructed on or Before November 30, 1999; Proposed Rule
[[Page 70640]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[AD-FRL-7408-1]
RIN 2060-AJ28
Federal Plan Requirements for Commercial and Industrial Solid
Waste Incinerators Constructed on or Before November 30, 1999
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On December 1, 2000, EPA adopted emission guidelines for
existing commercial and industrial solid waste incineration (CISWI)
units. Sections 111 and 129 of the Clean Air Act (CAA) require States
with existing CISWI units subject to the emission guidelines to submit
plans to EPA that implement and enforce the emission guidelines. Indian
Tribes may submit, but are not required to submit, Tribal plans to
implement and enforce the emission guidelines in Indian country. State
plans are due from States with CISWI units subject to the emission
guidelines on December 1, 2001. If a State or Tribe with existing CISWI
units does not submit an approvable plan, sections 111(d) and 129 of
the CAA require EPA to develop, implement, and enforce a Federal plan
for CISWI units located in that State or Tribal area within 2 years
after promulgation of the emission guidelines (December 1, 2002). This
action proposes a Federal plan to implement emission guidelines for
CISWI units located in States and Indian country without effective
State or Tribal plans. On the effective date of an approved State or
Tribal plan, the Federal plan would no longer apply to CISWI units
covered by the State or Tribal plan.
DATES: Comments. Comments on the proposed CISWI Federal plan must be
received on or before January 24, 2003.
Public hearing. The EPA will hold a public hearing if requests to
speak are received by December 10, 2002. For additional information on
the public hearing and requesting to speak, see the Supplementary
Information section of this preamble. If requested, the hearing would
take place on December 30, 2002 and would begin at 10 a.m.
ADDRESSES: Comments. Submit written comments (in duplicate, if
possible) to the following address: Air and Radiation Docket and
Information Center (MC-6102T) , U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW, Washington, D.C. 20460, Attention Docket
No. A-2000-52. The EPA requests that a separate copy also be sent to
the contact person listed below. For additional information on the
docket and electronic availability, see Supplementary Information.
Public hearing. If timely requests to speak at a public hearing are
received, a public hearing will be held at EPA's New RTP Campus located
at 109 T.W. Alexander Drive in Research Triangle Park, NC. Were one to
be held, a hearing would be held in the auditorium of the main
facility.
FOR FURTHER INFORMATION CONTACT: For information concerning specific
aspects of this proposal, contact Mr. David Painter at (919) 541-5515,
Program Implementation and Review Group, Information Transfer and
Program Integration Division (E143-02), U.S. Environmental Protection
Agency, Research Triangle Park, North Carolina 27711, email:
painter.david@epa.gov. For technical information, contact Mr. Fred
Porter at (919) 541-5251, Combustion Group, Emission Standards Division
(C439-01), U.S. Environmental Protection Agency, Research Triangle
Park, N.C. 27711, email: porter.fred@epa.gov. For information regarding
implementation of this proposed rule, contact the appropriate Regional
Office (table 1) as shown in Supplementary Information.
SUPPLEMENTARY INFORMATION: Comment Information. Comments may be
submitted electronically via electronic mail (e-mail) or on disk.
Electronic comments on this proposed rule may be filed via e-mail at
most Federal Depository Libraries. E-mail submittals should be sent to:
``A-and-R-Docket@epa.gov''. Electronic comments must be submitted as an
American Standard Code for Information Interchange (ASCII) file
avoiding the use of special characters or encryption. Comments and data
will also be accepted on disks or as an e-mail attachment in
WordPerfect or Corel ``wpd'' file format, Microsoft Word format, or
ASCII file format. All comments and data for this proposed rule,
whether in paper form or electronic forms such as through e-mail or on
diskette, must be identified by docket number A-2000-52.
Persons wishing to submit proprietary information for consideration
must clearly distinguish such information from other comments by
clearly labeling it ``Confidential Business Information'' (CBI). To
ensure that proprietary information is not inadvertently placed in the
docket, submit CBI directly to the following address, and not the
public docket: Mr. Roberto Morales, OAQPS Document Control Officer, 411
W. Chapel Hill Street, Room 740B, Durham, North Carolina 27701.
Information covered by such a claim of confidentiality will be
disclosed by the EPA only to the extent allowed and by the procedures
set forth in 40 CFR part 2. If no claim of confidentiality is made with
the submission, the submission may be made available to the public
without further notice. No confidential business information should be
submitted through e-mail.
Public hearing information. Persons wishing to speak at a public
hearing should notify Ms. Christine Adams at (919) 541-5590. If a
public hearing is requested and held, EPA will ask clarifying questions
during the oral presentation but will not respond to the presentations
or comments. Written statements and supporting information will be
considered with equivalent weight as any oral statement and supporting
information subsequently presented at a public hearing, if held.
Related information. Electronic versions of this notice, the
proposed regulatory text, and other background information are
available at the World Wide Web site that EPA has established for CISWI
units. The address is http://www.epa.gov/ttn/atw/129/ciwi/ciwipg.html.
The CISWI website references other websites for closely related rules,
such as large and small municipal waste combustors (MWC), hazardous
waste, and hospital/medical/infectious waste incinerators (HMIWI). The
large MWC and HMIWI sites contain the respective State plan guidance
documents.
Docket. Docket numbers A-2000-52 and A-94-63 contain the supporting
information for this proposed rule and the supporting information for
EPA's promulgation of emission guidelines for existing CISWI units,
respectively. Docket A-2000-52 incorporates all of the information in
Docket A-94-63. The dockets are organized and complete files of all the
information submitted to or otherwise considered by EPA in the
development of this proposed rulemaking. The dockets are available for
public inspection and copying between 8:30 a.m. and 4:30 p.m., Monday
through Friday, at the OAR Docket in the EPA Docket Center (EPA/DC),
1301 Constitution Avenue, NW., Washington, DC 20460, or by calling
(202) 566-1744. The docket is located in Room B102, (basement of EPA
West Building). The fax number for the Center is (202) 566-1749 and the
E-mail address is http://www.epa.gov/edocket. A reasonable fee may be
charged for copying.
[[Page 70641]]
Regulated entities. The proposed Federal plan would affect the
following North American Industrial Classification System (NAICS) and
Standard Industrial Classification (SIC) codes:
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Examples of
potentially
Category NAICS Code SIC Code regulated
entities
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Any industry using a solid 325 28 Manufacturers
waste incinerator as defined of chemicals
in the regulations. and allied
products.
325 34 Manufacturers
of electronic
equipment.
421 36 Manufacturers
of wholesale
trade, durable
goods.
321, 337 24, 25 Manufacturers
of lumber and
wood
furniture.
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This list is not intended to be exhaustive, but rather provides a
guide for readers regarding entities EPA expects to be regulated by
this proposed rule. This table lists examples of the types of entities
that could be affected by this proposed rule. Other types of entities
not listed could also be affected. To determine whether your facility,
company, business organization, etc., is regulated by this action,
carefully examine the applicability criteria in 40 CFR 62.14510 through
62.14530 of subpart III. If you have any questions regarding the
applicability of this action to your solid waste incineration unit,
refer to the FOR FURTHER INFORMATION CONTACT section.
EPA Regional Office Contacts. Table 1 lists EPA Regional Offices
that can answer questions regarding implementation of this proposed
rule.
Table 1.--EPA REGIONAL CONTACTS FOR CISWI
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States and
Region Contact Phone/Fax Protectorates
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I........... EPA New England 617-918-1650, CT, ME, MA, NH,
Director, Air 617-918-1505 RI, VT
Compliance Program, 1 (fax).
Congress Street,
Suite 1100 (SEA),
Boston, MA 02114-2023.
II.......... U.S. EPA--Region 2, 212-637-4080, NJ, NY, Puerto
Air Compliance 212-637-3998 Rico, Virgin
Branch, 290 Broadway, (fax). Islands
New York, New York
10007.
III......... U.S. EPA--Region 3, 215-814-3438, DE, DC, MD, PA,
Chief, Air 215-814-2134 VA, WV
Enforcement Branch (fax).
(3AP12), 1650 Arch
Street, Philadelphia,
PA 19103-2029.
IV.......... U.S. EPA--Region 4, 404-562-9105, AL, FL, GA, KY,
Air and Radiation, 404-562-9095 MS, NC, SC, TN
Technology Branch, (fax).
Atlanta Federal
Center, 61 Forsyth
Street, Atlanta,
Georgia 30303-3104.
V........... U.S. EPA--Region 5, 312-353-2211, IL, IN, MN, OH,
Air Enforcement and 312-886-8289 WI
Compliance Assurance (fax).
Branch, (AR-18J), 77
West Jackson
Boulevard, Chicago,
IL 60604-3590.
VI.......... U.S. EPA--Region 6, 214-665-7224, AR, LA, NM, OK,
Chief, Toxics 214-665-7446 TX
Enforcement, Section (fax).
(6EN-AT), 1445 Ross
Avenue, Dallas, TX
75202-2733.
VII......... U.S. EPA--Region 7, 913-551-7020, IA, KS, MO, NE
901 N. 5th Street, 913-551-7844
Kansas City, KS 66101. (fax).
VIII........ U.S. EPA--Region 8, 303-312-6007, CO, MT, ND, SD,
Air Program Technical 303-312-6064 UT, WY
Unit, (Mail Code 8P- (fax).
AR), 999 18th Street
Suite 500, Denver, CO
80202.
IX.......... U.S. EPA--Region 9, 415-744-1219, AZ, CA, HI, NV,
Air Division, 75 415-744-1076 American Samoa,
Hawthorne Street, San (fax). Guam
Francisco, CA 94105.
X........... U.S. EPA--Region 10, (206) 553-4273, ................
Office of Air (206) 553-0110
Quality, 1200 Sixth (fax).
Avenue, Seattle, WA
98101.
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Organization of this document. The following outline is provided to
aid in locating information in this preamble.
I. Background Information
A. What is the Regulatory Development Background for this
Proposed Rule?
B. What Impact Does the U.S. Appeals Court Remand and EPA's
Granting of a Request for Reconsideration Have on this Federal Plan?
II. Affected Facilities
A. What Is a CISWI Unit?
B. Does The Federal Plan Apply to Me?
C. How Do I Determine If My CISWI Unit Is Covered by an Approved
and Effective State or Tribal Plan?
III. Elements of the CISWI Federal Plan
A. Legal Authority and Enforcement Mechanism
B. Inventory of Affected CISWI Units
C. Inventory of Emissions
D. Emission Limitations
E. Compliance Schedules
F. Waste Management Plan Requirements
G. Testing, Monitoring, Recordkeeping, and Reporting
H. Operator Training and Qualification Requirements
I. Record of Public Hearings
J. Progress Reports
IV. Summary of CISWI Federal Plan
A. What Emission Limitations Must I Meet?
B. What Operating Limits Must I Meet?
C. What are the Requirements for Air Curtain Incinerators?
D. What are the Testing, Monitoring, Inspection, Recordkeeping,
and Reporting Requirements?
E. What is the Compliance Schedule?
F. How Did EPA Determine the Compliance Schedule?
V. CISWI That Have or Will Shut Down
A. Units That Plan to Close Rather Than Comply
B. Inoperable Units
C. CISWI Units That Have Shut Down
VI. Implementation of the Federal Plan and Delegation
A. Background of Authority
B. Delegation of the Federal Plan and Retained Authorities
C. Mechanisms for Transferring Authority
D. Implementing Authority
E. CISWI Federal Plan and Indian County
VII. Title V Operating Permits
VIII. Administrative Requirements
A. Docket
B. Public Hearing
C. Executive Order 12866: Regulatory Planning and Review
D. Executive Order 13132: Federalism
E. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
F. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
G. Executive Order 13211: Energy Effects
H. Unfunded Mandates Reform Act
[[Page 70642]]
I. Regulatory Flexibility Act/Small Business Regulatory
Enforcement Fairness Act (SBREFA)
J. Paperwork Reduction Act
K. National Technology Transfer and Advancement Act
I. Background Information
A. What Is the Regulatory Development Background for This Proposed
Rule?
Section 129 of the CAA requires EPA to develop emission guidelines
for existing ``solid waste incineration units combusting commercial or
industrial waste.'' The EPA refers to these units as ``commercial and
industrial solid waste incineration'' (CISWI) units. The EPA proposed
emission guidelines for CISWI units on November 30, 1999 and
promulgated them on December 1, 2000 (65 FR 75338) (to be codified at
40 CFR part 60, subpart DDDD). In writing Section 129 of the Clean Air
Act, Congress looked first to the States as the preferred implementers
of emission guidelines for existing CISWI units. To make these emission
guidelines enforceable, States with existing CISWI units must have
submitted to EPA within one year following promulgation of the emission
guidelines (by December 1, 2001) State plans that implement and enforce
the emission guidelines. For States or Tribes that do not have an EPA-
approved and effective plan, EPA must develop and implement a Federal
plan within two years following promulgation of the emission guidelines
(by December 1, 2002). The EPA sees the Federal plan as an interim
measure to ensure that Congressionally mandated emission standards are
implemented until States assume their role as the preferred
implementers of the emissions guidelines. Thus, the EPA encourages
States to either use the Federal plan as a template to reduce the
effort needed to develop their own plans or to simply take delegation
to directly implement and enforce the guidelines. States without any
existing CISWI units are required to submit to the Administrator a
letter of negative declaration certifying that there are no CISWI units
in the State. No plan is required for States that do not have any CISWI
units.
As discussed in section VI.E of this preamble, Indian Tribes may,
but are not required to, submit Tribal plans to cover CISWI units in
Indian country. A Tribe may submit to the Administrator a letter of
negative declaration certifying that no CISWI units are located in the
Tribal area. No plan is required for Tribes that do not have any CISWI
units. CISWI units located in States or Tribal areas that mistakenly
submit a letter of negative declaration would be subject to the Federal
plan until a State or Tribal plan has been approved and becomes
effective covering those CISWI units.
Today's action proposes a Federal plan for CISWI units that are not
covered by an approved State or Tribal plan as of December 1, 2002.
Sections 111 and 129 of the CAA and 40 CFR 60.27(c) and (d) require EPA
to develop, implement, and enforce a Federal plan to cover existing
CISWI units located in States that do not have an approved plan within
two years after promulgation of the emission guidelines (by December 1,
2002 for CISWI units). The EPA is proposing this Federal plan now so
that a promulgated Federal plan will be in place at the earliest
possible date, thus ensuring timely implementation and enforcement of
the CISWI emission guidelines. In addition, EPA's timing allows a State
or Tribe the opportunity to take delegation of the Federal plan in lieu
of writing a State plan.
B. What Impact Does the U.S. Appeals Court Remand and EPA's Granting of
a Request for Reconsideration Have on This Federal Plan?
Subsequent to EPA's promulgation of the final rule establishing the
NSPS and EG for CISWI units, two events occurred that potentially could
result in substantive changes to these standards. First, in August 2001
EPA granted a request for reconsideration, pursuant to section
307(d)(7)(B) of the CAA, submitted on behalf of the National Wildlife
Federation and the Louisiana Environmental Action Network, related to
the definition of ``commercial and industrial solid waste incineration
unit'' in EPA's CISWI rulemaking. In granting this petition for
reconsideration, EPA agreed to undertake further notice and comment
proceedings related to this definition. Second, on January 30, 2001,
the Sierra Club filed a petition for review in the U.S. Court of
Appeals for the D.C. Circuit challenging EPA's final CISWI rule. On
Sept. 6, 2001, the Court entered an order granting EPA's motion for a
voluntary remand of the CISWI rule without vacature. EPA's request for
a voluntary remand of the final CISWI rule was intended to allow the
Agency to address concerns related to the Agency's procedures for
establishing MACT floors for CISWI units in light of the D.C. Circuit
Court's decision in Cement Kiln Recycling Coalition v. EPA, 255 F.3d
855 (D.C. Cir. 2001).
Neither EPA's granting of the petition for reconsideration, nor the
Court's order granting a voluntary remand, stay, vacate or otherwise
influence the effectiveness of the currently existing CISWI
regulations. Specifically, section 307(d)(7)(B) of the Act provides
that ``reconsideration shall not postpone the effectiveness of the
rule,'' except that ``[t]he effectiveness of the rule may be stayed
during such reconsideration * * * by the Administrator or the court for
a period not to exceed three months.'' In this case, neither EPA nor
the court stayed the effectiveness of the final CISWI regulations in
connection with the reconsideration petition. Likewise, the D.C.
Circuit granted EPA's motion for a remand without vacature, therefore,
the Court's remand order had no impact on the effectiveness of the
current CISWI regulations. Because the existing CISWI regulations
remain in full effect, EPA's obligation under section 129(b)(3) of the
Act to promulgate a Federal Plan (to implement those regulations for
existing units that are not covered by an approved and effective State
plan) remains unchanged.\1\ Therefore, EPA is complying with its
statutory obligations by issuing today's proposed Federal Plan for
CISWI units.
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\1\ Similarly, the obligations of States and sources are
unaffected by the reconsideration petition and the remand.
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To the extent that EPA might take action in the future that results
in changes in the underlying CISWI rule--in response to the petition
for reconsideration or in response to the voluntary remand--EPA will
simultaneously amend this Federal Plan to reflect any such changes. If
such changes become necessary, interested parties, including States and
sources, will have the opportunity to provide comments, and EPA will
reasonably accommodate the concerns of commenters as appropriate.
II. Affected Facilities
A. What Is a CISWI Unit?
A CISWI unit means any combustion device that combusts commercial
and industrial waste, as defined in proposed 40 CFR part 62, subpart
III. Commercial and industrial waste, as defined in proposed subpart
III, is solid waste combusted in an enclosed device using controlled
flame combustion without energy recovery that is a distinct operating
unit of any commercial or industrial facility (including field-erected,
modular, and custom built incineration units operating with starved or
excess air), or solid waste combusted in an air curtain incinerator
without energy recovery that is a distinct operating unit of any
commercial or industrial facility. Fifteen types of combustion units,
which are listed in Sec. 62.14525 of subpart III are
[[Page 70643]]
conditionally exempt from the Federal plan.
B. Does the Federal Plan Apply to Me?
The proposed Federal plan will apply to you if you are the owner or
operator of a combustion device that combusts commercial and industrial
waste (as defined in subpart III) and the device is not covered by an
approved and effective State or Tribal plan as of December 1, 2002. The
proposed Federal plan covers your CISWI unit until EPA approves a State
or Tribal plan that covers your CISWI unit and that plan becomes
effective.
If you began the construction of your CISWI unit on or before
November 30, 1999, it is considered an existing CISWI unit and could be
subject to the Federal plan. If you began the construction of your
CISWI unit after November 30, 1999, it is considered a new CISWI unit
and is subject to the NSPS. If you began reconstruction or modification
of your CISWI unit prior to June 1, 2001, it is considered an existing
CISWI unit and could be subject to the Federal plan. Likewise, if you
began reconstruction or modification of your CISWI unit on or after
June 1, 2001, it is considered a new CISWI unit and is subject to the
NSPS.
Your CISWI unit would be subject to this Federal plan if on the
effective date of the Federal plan, EPA has not approved a State or
Tribal Plan that covers your unit, or the EPA-approved State or Tribal
plan has not become effective. The specific applicability of this plan
is described in Sec. Sec. 62.14510 through 62.14530 of subpart III.
Once an approved State or Tribal plan is in effect, the Federal
plan will no longer apply to a CISWI unit covered by such plan. An
approved State or Tribal plan is a plan developed by a State or Tribe
that EPA has reviewed and approved based on the requirements in 40 CFR
part 60, subpart B to implement and enforce 40 CFR part 60, subpart
DDDD. The State or Tribal plan is effective on the date specified in
the notice published in the Federal Register announcing EPA's approval
of the plan.
The EPA's promulgation of a CISWI Federal plan will not preclude
States or Tribes from submitting a plan. If a State or Tribe submits a
plan after promulgation of the CISWI Federal plan final rule, EPA will
review and approve or disapprove the State or Tribal plan. If EPA
approves a plan, then the Federal plan would no longer apply to CISWI
units covered by the State or Tribal plan as of the effective date of
the State or Tribal plan. (See the discussion in ``State or Tribe
Submits A Plan After CISWI Units Located in the Area Are Subject to the
Federal Plan'' in section VI.C of this preamble.) If a CISWI unit were
overlooked by a State or Tribe and the State or Tribe submitted a
negative declaration letter, or if an individual CISWI unit were not
covered by an approved and effective State or Tribal plan, the CISWI
unit would be subject to this Federal plan.
C. How Do I Determine If My CISWI Unit Is Covered by an Approved and
Effective State or Tribal Plan?
Part 62 of Title 40 of the Code of Federal Regulations identifies
the approval and promulgation of section 111(d) and section 129 State
or Tribal plans for designated facilities in each State or area of
Indian Country. However, part 62 is updated only once per year. Thus,
if part 62 does not indicate that your State or Tribal area has an
approved and effective plan, you should contact your State
environmental agency's air director or your EPA Regional Office (Table
1) to determine if approval occurred since publication of the most
recent version of part 62.
III. Elements of the CISWI Federal Plan
Because EPA is proposing a Federal plan to cover CISWI units
located in States and areas of Indian Country where plans are not in
effect, EPA has elected to include in this proposal the same elements
as are required for State plans: (1) Identification of legal authority
and mechanisms for implementation, (2) inventory of CISWI units, (3)
emissions inventory, (4) emission limitations, (5) compliance
schedules, (6) waste management plan, (7) testing, monitoring,
inspection, reporting, and recordkeeping, (8) operator training and
qualification, (9) public hearing, and (10) progress reporting. See 40
CFR part 60 subparts B and C and sections 111 and 129 of the CAA. Each
plan element is described below as it relates to this proposed CISWI
Federal plan. Table 2 lists each element and identifies where it is
located or codified.
Table 2.--Elements of the CISWI Federal Plan
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Element of the CISWI Federal plan Location
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Legal authority and enforcement Sections 129(b)(3) 111(d),
mechanism. 301(a), and 301(d)(4) of the
CAA
Inventory of Affected MWC Units........ Docket A-2000-52
Inventory of Emissions................. Docket A-2000-52
Emission Limits........................ 40 CFR 62.14630-62.14645
Compliance Schedules................... 40 CFR 62.14535-62.14575
Operator Training and Qualification.... 40 CFR 62.14595-62.14625
Waste Management Plan.................. 40 CFR 62.14580-62.14590
Record of Public Hearings.............. Docket A-2000-52
Testing, Monitoring, Recordkeeping, and 40 CFR 62.14670-62.14760
Reporting.
Progress Reports....................... Section III.J of this preamble
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A. Legal Authority and Enforcement Mechanism
1. EPA's Legal Authority in States
Section 301(a) of the CAA provides EPA with broad authority to
write regulations that carry out the functions of the CAA. Sections
111(d) and 129(b)(3) of the CAA direct EPA to develop a Federal plan
for States that do not submit approvable State plans. Sections 111 and
129 of the CAA provide EPA with the authority to implement and enforce
the Federal plan in cases where the State fails to submit a
satisfactory State plan. Section 129(b)(3) requires EPA to develop,
implement, and enforce a Federal plan within 2 years after the date the
relevant emission guidelines are promulgated (by December 1, 2002 for
CISWI units). Compliance with the emission guidelines cannot be later
than 5 years after the relevant emission guidelines are promulgated (by
December 1, 2005 for CISWI units).
2. EPA's Legal Authority in Indian Country
Section 301 provides EPA with the authority to administer Federal
programs in Indian country. See sections 301 (a) and (d). Section
301(d)(4) of the CAA authorizes the Administrator to directly
administer provisions of the CAA where Tribal implementation of those
provisions is not appropriate or administratively not feasible. See
section VI.E of this preamble for a more detailed discussion of EPA's
authority to administer the CISWI Federal plan in Indian country.
The EPA is proposing this Federal regulation under the legal
authority of
[[Page 70644]]
the CAA to implement the emission guidelines in those States and areas
of Indian country not covered by an approved plan. As discussed in
section VI of this document, implementation and enforcement of the
Federal plan may be delegated to eligible Tribal, State, or local
agencies when requested by a State, eligible Tribal, or local agency,
and when EPA determines that such delegation is appropriate.
B. Inventory of Affected CISWI Units
The proposed Federal plan includes an inventory of CISWI units
affected by the emission guidelines. (See 40 CFR 60.25(a).) Docket
number A-2000-52 contains an inventory of the CISWI units that may
potentially be covered by this proposed Federal plan in the absence of
State or Tribal plans. This inventory contains 99 CISWI units in 30
States and one protectorate. It is based on information collected from
State and Federal databases, information collection request survey
responses, and stakeholder meetings during the development of the CISWI
emission guidelines. The EPA recognizes that this list may not be
complete. Therefore, sources potentially subject to this Federal plan
may include, but are not limited to, the CISWI units listed in the
inventory memorandum in docket number A-2000-52. Any CISWI unit that
meets the applicability criteria in the Federal plan rule is subject to
the Federal plan, regardless of whether it is listed in the inventory.
States, Tribes, or individuals are invited to identify additional
sources for inclusion to the list during the comment period for this
proposal.
C. Inventory of Emissions
The proposed Federal plan includes an emissions estimate for CISWI
units subject to the emission guidelines. (See 40 CFR 60.25(a).) The
pollutants to be inventoried are dioxins/furans, cadmium (Cd), lead
(Pb), mercury (Hg), particulate matter (PM), hydrogen chloride (HCl),
oxides of nitrogen (NOX), carbon monoxide (CO), and sulfur
dioxide (SO2). For this proposal, EPA has estimated the
emissions from each known CISWI unit that potentially may be covered by
the Federal plan for the nine pollutants regulated by the Federal plan.
The emissions inventory is based on available information about the
CISWI units, emission factors, and typical emission rates developed for
calculating nationwide air impacts of the CISWI emission guidelines and
the Federal plan. Refer to the inventory memorandum in docket number A-
2000-52 for the complete emissions inventory and details on the
emissions calculations.
D. Emission Limitations
The proposed Federal plan includes emission limitations. (See 40
CFR 60.24(a).) Section 129(b)(2) of the CAA requires these emission
limitations to be ``at least as protective as'' those in the emission
guidelines. The emission limitations in this proposed CISWI Federal
plan are the same as those contained in the emission guidelines. (See
table 2 of subpart III.) Section IV of this preamble discusses the
emission limitations and operating limits. Table 3 of subpart III
contains operating limits for wet scrubbers.
E. Compliance Schedules
Increments of progress are required for CISWI units that need more
than 1 year from State plan approval to comply, or in the case of the
Federal plan, more than 1 year after promulgation of the final Federal
plan. (See 40 CFR 60.24(e)(1).) Increments of progress are included to
ensure that each CISWI unit needing more time to comply is making
progress toward meeting the emission limits.
For CISWI units that need more than 1 year to comply, the proposed
CISWI Federal plan includes in its compliance schedule two increments
of progress from 40 CFR 60.21(h), as allowed by 40 CFR 60.24(e)(1) and
required by 40 CFR part 60, subpart DDDD (Sec. 60.2575). The Federal
plan includes defined and enforceable dates for completion of each
increment. These increments of progress are (1) submit final control
plan, and (2) achieve final compliance. The proposed increments of
progress are described in section IV.E of this preamble.
F. Waste Management Plan Requirements
A waste management plan is a written plan that identifies both the
feasibility and the methods used to reduce or separate certain
components of solid waste from the waste stream to reduce or eliminate
toxic emissions from incinerated waste. The waste management plan must
be submitted no later than the date six months after promulgation of
the CISWI Federal plan in the Federal Register. Sections 62.14580
through 62.14590 of subpart III contain the waste management plan
requirements.
G. Testing, Monitoring, Recordkeeping, and Reporting
The proposed Federal plan includes testing, monitoring,
recordkeeping, and reporting requirements. (See 40 CFR 60.25.) Testing,
monitoring, recordkeeping, and reporting requirements are consistent
with subpart DDDD, and assure initial and ongoing compliance.
H. Operator Training and Qualification Requirements
The owner or operator must qualify operators or their supervisors
(at least one per facility) by ensuring that they complete an operator
training course and annual review or refresher course. Sections
62.14595 through 62.14625 of the proposed subpart III contain the
operator training and qualification requirements.
I. Record of Public Hearings
The proposed Federal plan provides opportunity for public
participation in adopting the plan. (See 40 CFR 60.23(c).) If requested
to do so, EPA will hold a public hearing in Research Triangle Park, NC.
A record of the public hearing, if any, will appear in Docket A-2000-
52. If a public hearing is requested and held, EPA will ask clarifying
questions during the oral presentation but will not respond to the
presentations or comments. Written statements and supporting
information submitted during the public comment period will be
considered with equivalent weight as any oral statement and supporting
information subsequently presented at a public hearing, if held.
J. Progress Reports
Under the Federal plan, the EPA Regional Offices will prepare
annual progress reports to show progress of CISWI units in the Region
toward implementation of the emission guidelines. (See 40 CFR
60.25(e).) States or Tribes that have been delegated the authority to
implement and enforce this Federal plan would also be required to
submit annual progress reports to the appropriate EPA Regional Office.
Appendix D of 40 CFR part 60 requires reporting of emissions data
to the Aerometric Emissions Information Retrieval System (AIRS)/AIRS
Facility Subsystem(AFS). These reports can be combined with the State
implementation plan report required by 40 CFR 51.321 in order to avoid
double reporting. Under the proposed Federal plan, EPA Regional Offices
would report AIRS emissions data. If a State or Tribe has been
delegated the authority to implement and enforce the Federal plan, the
State or Tribe would report emissions data to AIRS.
Each progress report must include the following items: (1) Status
of enforcement actions; (2) status of increments of progress; (3)
identification
[[Page 70645]]
of sources that have shut down or started operation; (4) emission
inventory data for sources that were not in operation at the time of
plan development, but that began operation during the reporting period;
(5) additional data as necessary to update previously submitted source
and emission information; and (6) copies of technical reports on any
performance testing and monitoring.
IV. Summary of CISWI Federal Plan
A. What Emission Limitations Must I Meet?
As the owner or operator of an existing CISWI unit, you will be
required to meet the emission limitations specified in Table 1. See
section IV.E of this preamble for a discussion of the compliance
schedule.
Table 1.--Emission Limitations for Existing CISWI Units
------------------------------------------------------------------------
You must meet these And determine
For these pollutants emission limitations compliance using
\a\ these methods \b\
------------------------------------------------------------------------
Cadmium..................... 0.004 mg/dscm....... EPA Method 29
Carbon Monoxide............. 157 ppm............. EPA Methods 10, 10A,
or 10B
Dioxins/Furans, toxic 0.41 ng/dscm........ EPA Method 23
equivalent (TEQ) basis.
Hydrogen Chloride........... 62 ppm by dry volume EPA Method 26A
Lead........................ 0.04 mg/dscm........ EPA Method 29
Mercury..................... 0.47 mg/dscm........ EPA Method 29
Opacity..................... 10 percent.......... EPA Method 9
Oxides of Nitrogen.......... 388 ppm by dry EPA Method 7, 7A,
volume. 7C, 7D, or 7E
Particulate Matter.......... 70 mg/dscm.......... EPA Method 5 or 29
Sulfur Dioxide.............. 20 ppm by dry volume EPA Method 6 or 6c
------------------------------------------------------------------------
\a\ All emission limitations (except opacity) are measured at 7 percent
oxygen, dry basis at standard conditions.
\b\ These methods are in 40 CFR part 60, appendix A.
B. What Operating Limits Must I Meet?
If you are using a wet scrubber to comply with the emission
limitations, you will be required to establish the maximum and minimum
site-specific operating limits indicated in Table 2. You will be
required to operate the CISWI unit and wet scrubber so that the
operating parameters do not deviate from the established operating
limits.
Table 2.--Operating Limits for Existing CISWI Units Using Wet Scrubbers
------------------------------------------------------------------------
And monitor
For these operating You must establish continuously using
parameters these operating these recording
limits times
------------------------------------------------------------------------
Charge rate................. Maximum charge rate. Every hour
Pressure drop across the wet Minimum pressure Every 15 minutes
scrubber, or amperage to drop or amperage.
the wet scrubber.
Scrubber liquor flow rate... Minimum flow rate... Every 15 minutes
For these operating You must establish And monitor
parameters. these operating continuously using
limits.. these recording
times
Scrubber liquor pH.......... Minimum pH.......... Every 15 minutes
------------------------------------------------------------------------
Note: Compliance is determined on a 3-hour rolling average basis, except
charge rate for batch incinerators, which is determined on a daily
basis.
If you are using an air pollution control device other than a wet
scrubber to comply with the emission limitations, you will be required
to petition the Administrator for other site-specific operating limits
to be established during the initial performance test and continuously
monitored thereafter. The required components of the petition are
described in Sec. 62.14640 of subpart III.
If you are using a fabric filter to comply with the emission
limitations, in addition to other operating limits as approved by the
Administrator, you must operate the fabric filter system such that the
bag leak detection system alarm does not sound more than 5 percent of
the operating time during any 6-month period.
C. What Are the Requirements for Air Curtain Incinerators?
The Federal plan will establish opacity limitations for air curtain
CISWI units burning 100 percent wood wastes and/or clean lumber. This
opacity limitation will be 10 percent, except 35 percent opacity will
be allowed during start-up periods that are within the first 30 minutes
of operation.
D. What Are the Testing, Monitoring, Inspection, Recordkeeping, and
Reporting Requirements?
The owner or operator of a CISWI unit subject to the CISWI Federal
plan will be required to conduct initial performance tests for cadmium,
dioxins/furans, hydrogen chloride, lead, mercury, opacity, particulate
matter, and sulfur dioxide and establish operating limits (i.e.,
maximum or minimum values for operating parameters). The initial
performance test must be conducted within 180 days after the date the
facility is required to achieve final compliance.
The owner or operator will be required to conduct annual
performance tests for particulate matter, hydrogen chloride, and
opacity. (An owner or operator may conduct less frequent testing if the
facility demonstrates that it is in compliance with the emission
limitations for 3 consecutive years.)
To assure ongoing achievement of the Federal plan's provisions, an
owner or operator using a wet scrubber to comply with the emission
limitations will continuously monitor the following
[[Page 70646]]
operating parameters: charge rate, pressure drop across the wet
scrubber (or amperage), and scrubber liquid flow rate and pH. If
something other than a wet scrubber is used to comply with the emission
limitations, the owner or operator will be required to monitor other
operating parameters, as approved by the Administrator.
If the owner or operator is using a fabric filter to comply with
the emission limitations, in addition to other operating limits as
approved by the Administrator, the owner or operator must install and
continuously operate a bag leak detection system. The owner or operator
must keep records of periods when the alarm sounds and calculate
whether these periods are more than 5 percent of the operating time for
each 6-month period. The owner or operator will be required to submit
information documenting compliance with these requirements as part of
an annual report; and report deviations semi-annually.
In addition, the Federal plan will require CISWI unit owners and
operators to maintain for 5 years records of the initial performance
tests and all subsequent performance tests, operating parameters, any
maintenance, and operator training and qualification. The owner or
operator will submit the results of the initial performance tests and
all subsequent performance tests and values for the operating
parameters in annual reports.
E. What Is the Compliance Schedule?
Each CISWI unit will be required to either: (1) Reach final
compliance by the date 1 year after publication of the final rule in
the Federal Register, or (2) meet increments of progress and reach
final compliance by the date 2 years after publication of the final
rule in the Federal Register. In addition, the owner or operator must
comply with the operator training and qualification requirements and
inspection requirements by the date 1 year after publication of the
final rule in the Federal Register, regardless of when the CISWI unit
reaches final compliance.
Each owner or operator that takes more than 1 year to reach final
compliance must submit a final control plan (increment 1) by the date 6
months after publication of the final rule for this Federal plan in the
Federal Register and reach final compliance (increment 2) by the date 2
years after publication of the final rule in the Federal Register. To
ensure timely progress towards implementation of the Federal plan, the
proposed rules include a requirement for owners or operators of CISWI
units seeking to take an additional year to reach final compliance to
submit a request to the Administrator that documents the need for an
extension.
To meet the increment 1 requirement, the owner or operator of each
CISWI unit must submit a final control plan that includes five items:
(1) A description of the air pollution control devices and/or process
changes that will be employed so that each CISWI unit complies with the
emission limits and other requirements, (2) a list of the types of
waste burned, (3) the maximum design waste burning capacity, (4) the
anticipated maximum charge rate, and, (5) if applicable, the petition
for site-specific operating limits. A final control plan is not
required for units that will be shut down, but those units must close
by 1 year after the final rule is published or must submit a closure
agreement by 6 months after the final rule is published, close no later
than 2 years after the rule is published, and meet other requirements
as described in section V.A. of this preamble.
To meet the second increment of progress, the owner or operator of
each CISWI unit must incorporate all process changes or complete
retrofit construction in accordance with the final control plan. The
owner or operator must connect the air pollution control equipment or
process changes such that when the CISWI unit is brought on line all
necessary process changes or air pollution control equipment will
operate as designed.
F. How Did EPA Determine the Compliance Schedule?
The EPA determined the compliance schedule based on the
requirements of 40 CFR part 60, subpart B and the feasibility of owners
or operators to retrofit combustion units with air pollution control
devices. CISWI units must comply within 1 year after publication of the
final Federal plan or meet increments of progress. The requirement to
reach final compliance within 1 year is consistent with 40 CFR 60.24(c)
of subpart B. Subpart B requires final compliance to be ``as
expeditiously as practicable* * *'' and requires increments of progress
if the compliance schedule is longer than 1 year.
The EPA believes that many CISWI units can reach final compliance
within 1 year after promulgation of the Federal plan based on their
similarity to HMIWI units. In addition to the 1 year after promulgation
of the Federal plan, units could use the time between this proposed
rule and promulgation of the final Federal plan to plan and begin
retrofits.
The proposed compliance schedule for CISWI units is similar to the
compliance schedule for HMIWI units. Most CISWI units are similar in
size to HMIWI units. In addition, CISWI units would require similar
controls to meet the CISWI Federal plan emission limits as HMIWI units
would need to meet the HMIWI Federal plan emission limits. To determine
the compliance schedule for HMIWI units, EPA conducted case studies of
eight HMIWI units that completed retrofits of the types of controls
needed to meet the HMIWI Federal plan (64 FR 36430, July 6, 1999).
Based on these case studies (Docket No. A-98-24, II-A-1), EPA found
that many HMIWI units can meet the requirements of the Federal plan
within 1 year. Similarly, many CISWI units could meet a 1-year
schedule.
We expect that some CISWI units could need more than 1 year to
comply, as did some HMIWI units, due to site-specific circumstances.
For units that cannot comply within 1 year, the proposed Federal plan
establishes increments of progress, as required by subpart B. The
proposed date for the first increment of progress, submittal of a final
control plan, is 6 months after publication of the final Federal plan
in the Federal Register. The proposed date for the second increment of
progress, final compliance, is 2 years after publication of the final
Federal plan in the Federal Register. These increments are derived from
the findings of the case studies performed to characterize the retrofit
of control systems for hospital medical and infectious waste (HMIWI)
incinerators (Docket A-98-24, Item II-A-1). The size and design of
CISWI are similar to the smaller HMIWI that were the subjects of the
case studies. In particular, most units are small and controls will be
ordered ``off-the-shelf'' as assembled packages. Thus, the Agency did
not see a need for increments to address details of on-site
construction and installation of control systems. Also, CISWI sites are
not thought to have the problems with space and access that were
concerns for HMIWI retrofits. In addition, CISWI units have the time
between publication of this proposed rule and publication of the final
rule in the Federal Register to begin developing the final control plan
and to initiate retrofit activities.
The proposed rules do not include increments of progress for air
curtain incinerators (ACI). Air curtain incinerators must comply with
the requirements of the Federal plan one year after the date of
promulgation of the final rule. Delaying implementation for ACI would
not be appropriate because there will be little or no need for the
installation of control equipment on these units(Primarily because
control
[[Page 70647]]
equipment is typically infeasible for ACI). Compliance with the opacity
limits applicable to this class of units would primarily be achieved by
good operation and maintenance practices. This approach is consistent
with the proposed requirement for completion of CISWI operator training
by the date one year after promulgation of the final rule.
V. CISWI That Have or Will Shut Down
A. Units That Plan To Close Rather Than Comply
If you plan to permanently close your currently operating CISWI
unit, you must do one of the following: (a) close by the date 1 year
after publication of the final rule for this Federal plan in the
Federal Register, or (b) submit a legally binding closure agreement,
including the date of closure, to the Administrator by the date 6
months after publication of the final rule in the Federal Register. The
closure agreement must specify the date by which operation will cease.
The closure date cannot be later than the final compliance date of the
CISWI Federal plan (2 years after publication of the final rule in the
Federal Register). If you close your CISWI unit after the date 1 year
after publication of the final rule in the Federal Register, but before
the date 2 years after publication of the final rule in the Federal
Register, then you must comply with the operator training and
qualification requirements by the date 1 year after publication of the
final rule in the Federal Register. In addition, while still in
operation, you are subject to the same requirements for title V
operating permits that apply to units that will not shut down.
B. Inoperable Units
In cases where a CISWI unit has already shut down, has been
rendered inoperable, and does not intend to restart, the CISWI unit may
be left off the source inventory in a State, Tribal, or this Federal
plan. A CISWI unit that has been rendered inoperable would not be
covered by the Federal plan. The CISWI owner or operator may do the
following to render a CISWI unit inoperable: (1) Weld the waste charge
door shut, (2) remove stack (and by-pass stack, if applicable), (3)
remove combustion air blowers, or (4) remove burners or fuel supply
appurtenances.
C. CISWI Units That Have Shut Down
CISWI units that are known to have already shut down (but are not
known to be inoperable) will be included in the source inventory and
identified in any State or Tribal plan submitted to EPA.
1. Restarting Before The Final Compliance Date
If the owner or operator of an inactive CISWI unit plans to restart
before the final compliance date, the owner or operator must submit a
control plan for the CISWI unit and meet the applicable compliance
schedule. Final compliance is required for all pollutants and all CISWI
units no later than the final compliance date. (See section IV.E for
the discussion on compliance schedules and increments of progress.)
2. Restarting After The Final Compliance Date
Under this proposed Federal plan, a control plan would not be
needed for inactive CISWI units that restart after the final compliance
date. However, before restarting, such CISWI units would have to
complete the operator training and qualification requirements and
inspection requirements (if applicable) and complete retrofit or
process modifications. Performance testing to demonstrate compliance
would be required within 180 days after restarting. There would be no
need to show that the increments of progress have been met since these
steps would have occurred before restart while the CISWI unit was shut
down and not generating emissions. A CISWI unit that operates out of
compliance after the final compliance date would be in violation of the
Federal plan and subject to enforcement action.
VI. Implementation of the Federal Plan and Delegation
A. Background of Authority
Under sections 111(d) and 129(b) of the CAA, EPA is required to
adopt emission guidelines that are applicable to existing solid waste
incineration sources. These emission guidelines are not enforceable
until EPA approves a State or Tribal plan or adopts a Federal plan that
implements and enforces them, and the State, Tribal, or Federal plan
has become effective. As discussed above, the Federal plan regulates
CISWI units in a State or Tribal area that does not have an EPA-
approved plan currently in effect.
Congress has determined that the primary responsibility for air
pollution prevention and control rests with State and local agencies.
See section 101(a)(3) of the CAA. Consistent with that overall
determination, Congress established sections 111 and 129 of the CAA
with the intent that the States and local agencies take the primary
responsibility for ensuring that the emission limitations and other
requirements in the emission guidelines are achieved. Also, in section
111(d) of the CAA, Congress explicitly required that EPA establish
procedures that are similar to those under section 110(c) for State
Implementation Plans. Although Congress required EPA to propose and
promulgate a Federal plan for States that fail to submit approvable
State plans on time, States and Tribes may submit approvable plans
after promulgation of the CISWI Federal plan. The EPA strongly
encourages States that are unable to submit approvable plans to request
delegation of the Federal plan so that they can have primary
responsibility for implementing the emission guidelines, consistent
with Congress' intent.
Approved and effective State plans or delegation of the Federal
plan is EPA's preferred outcome since EPA believes that State and local
agencies not only have the responsibility to carry out the emission
guidelines, but also have the practical knowledge and enforcement
resources critical to achieving the highest rate of compliance. For
these reasons, EPA will do all that it can to expedite delegation of
the Federal plan to State and local agencies, whenever possible.
The EPA also believes that Indian Tribes should be the primary
parties responsible for regulating air quality within Indian country,
if they desire to do so. See EPA's Indian Policy (``Policy for
Administration of Environmental Programs on Indian Reservations,''
signed by William D. Ruckelshaus, Administrator of EPA, dated November
4, 1984), reaffirmed in a 2001 memorandum (``EPA Indian Policy,''
signed by Christine Todd Whitman, Administrator of EPA, dated July
11,2001).
B. Delegation of the Federal Plan and Retained Authorities
If a State or Indian Tribe intends to take delegation of the
Federal plan, the State or Indian Tribe must submit to the appropriate
EPA Regional Office a written request for delegation of authority. The
State or Indian Tribe must explain how it meets the criteria for
delegation. See generally ``Good Practices Manual for Delegation of
NSPS and NESHAP'' (EPA, February 1983). In order to obtain delegation,
an Indian Tribe must also establish its eligibility to be treated in
the same manner as a State (see section IV.E.1 of this preamble). The
letter requesting delegation of authority to implement the Federal plan
must demonstrate that the State or Tribe has adequate resources, as
well as the legal and enforcement authority to administer and enforce
the program. A memorandum of agreement
[[Page 70648]]
between the State or Tribe and EPA would set forth the terms and
conditions of the delegation, the effective date of the agreement, and
would also serve as the mechanism to transfer authority. Upon signature
of the agreement, the appropriate EPA Regional Office would publish an
approval notice in the Federal Register, thereby incorporating the
delegation authority into the appropriate subpart of 40 CFR part 62.
If authority is not delegated to a State or Indian Tribe, EPA will
implement the Federal plan. Also, if a State or Tribe fails to properly
implement a delegated portion of the Federal plan, EPA will assume
direct implementation and enforcement of that portion. The EPA will
continue to hold enforcement authority along with the State or Tribe
even when a State or Tribe has received delegation of the Federal plan.
In all cases where the Federal plan is delegated, EPA will retain and
will not transfer authority to a State or Tribe to approve the
following items:
(1) Alternative site-specific operating parameters established by
facilities using CISWI controls other than a wet scrubber (Sec.
62.14640 of subpart III),
(2) Alternative methods of demonstrating compliance,
(3) Alternative requirements that could change the stringency of
the underlying standard, which are likely to be nationally significant,
or which may require a national rulemaking and subsequent Federal
Register notice. The following authorities may not be delegated to the
State, Tribal or local agencies: Approval of alternative non-opacity
emission standards, approval of alternative opacity standard, approval
of major alternatives to test methods, approval of major alternatives
to monitoring, and waiver of recordkeeping and reporting; and
(4) Petitions to the Administrator to add a chemical recovery unit
to Sec. 62.14525(n) of subpart III.
CISWI owners or operators who wish to establish alternative
operating parameters or alternative methods of demonstrating compliance
should submit a request to the Regional Office Administrator with a
copy to the appropriate State or Tribe.
C. Mechanisms for Transferring Authority
There are two mechanisms for transferring implementation authority
to State or Tribal agencies: (1) EPA approval of a State or Tribal plan
after the Federal plan is in effect; and (2) if a State or Tribe does
not submit or obtain approval of its own plan, EPA delegation to a
State or Tribe of the authority to implement certain portions of this
Federal plan to the extent appropriate and if allowed by State or
Tribal law. Both of these options are described in more detail below.
1. Federal Plan Becomes Effective Prior to Approval of a State or
Tribal Plan
After CISWI units in a State or Tribal area become subject to the
Federal plan, the State or Tribal agency may still adopt and submit a
plan to EPA. If EPA determines that the State or Tribal plan is as
protective as the emission guidelines, EPA will approve the State or
Tribal plan. If EPA determines that the plan is not as protective as
the emission guidelines, EPA will disapprove the plan and the CISWI
units covered in the State or Tribal plan would remain subject to the
Federal plan until a State or Tribal plan covering those CISWI units is
approved and effective.
Upon the effective date of an approved State or Tribal plan, the
Federal plan would no longer apply to CISWI units covered by such a
plan, and the State or Tribal agency would implement and enforce the
State or Tribal plan in lieu of the Federal plan. When an EPA Regional
Office approves a State or Tribal plan, it will amend the appropriate
subpart of 40 CFR part 62 to indicate such approval.
2. State or Tribe Takes Delegation of the Federal Plan
The EPA, in its discretion, may delegate to State or eligible
Tribal agencies the authority to implement this Federal plan. As
discussed above, EPA believes that it is advantageous and the best use
of resources for State or Tribal agencies to agree to undertake, on
EPA's behalf, the administrative and substantive roles in implementing
the Federal plan to the extent appropriate and where authorized by
State or Tribal law. If a State requests delegation, EPA will generally
delegate the entire Federal plan to the State agency. These functions
include administration and oversight of compliance reporting and
recordkeeping requirements, CISWI inspections, and preparation of draft
notices of violation.
The EPA also believes that it is the best use of resources for
Tribal agencies to undertake a role in the implementation of the
Federal plan. The Tribal Authority Rule issued on February 12, 1998 (63
FR 7254) provides Tribes the opportunity to develop and implement Clean
Air Act programs. However, due to resource constraints and other
factors unique to Tribal governments, it leaves to the discretion of
the Tribe whether to develop these programs and which elements of the
program they will adopt. Consistent with the approach of the Tribal
Authority Rule, EPA may choose to delegate a partial Federal plan
(i.e., to delegate authority for some functions needed to carry out the
plan) in appropriate circumstances and where consistent with Tribal
law.
Both States and Tribal agencies, that have taken delegation, as
well as EPA, will have responsibility for bringing enforcement actions
against sources violating Federal plan provisions. However, EPA
recognizes that Tribes have limited criminal enforcement authority, and
EPA will address in the delegation agreement with the Tribe how
criminal enforcement issues are referred to EPA.
D. Implementing Authority
The EPA will delegate authority within the Agency to the EPA
Regional Administrators to implement the CISWI Federal plan. All
reports required by this Federal plan should be submitted to the
appropriate Regional Office Administrator. Table 1 under Supplementary
Information lists the names and addresses of the EPA Regional Office
contacts and the States that they cover.
E. CISWI Federal Plan and Indian Country
The term ``Indian country,'' as used in this preamble, means (1)
all land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation; (2) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and (3) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
The CISWI Federal plan would apply throughout Indian country to
ensure that there is not a regulatory gap for existing CISWI units in
Indian country. However, eligible Indian tribes now have the authority
under the CAA to develop Tribal plans in the same manner that States
develop State plans. On February 12, 1998, EPA promulgated regulations
that outline provisions of the CAA for which it is appropriate to treat
Tribes in the same manner as States. See 63 FR 7254 (Final Rule for
Indian Tribes: Air Quality Planning and Management, (Tribal Authority
Rule)) (codified at 40 CFR part 49). As of
[[Page 70649]]
March 16, 1998, the effective date of the Tribal Authority Rule, EPA
has had authority under the CAA to approve Tribal programs such as
Tribal plans to implement and enforce the CISWI emission guidelines.
1. Tribal Implementation
Section 301(d) of the CAA authorizes the Administrator to treat an
Indian tribe as a State under certain circumstances. The Tribal
Authority Rule, which implements section 301(d) of the CAA, identifies
provisions of the CAA for which it is appropriate to treat a Tribe as a
State. (See 40 CFR 49.3 and 49.4.) Under the Tribal Authority Rule, a
Tribe may be treated as a State for purposes of this Federal plan. If a
Tribe meets the criteria below, EPA can delegate to an Indian tribe
authority to implement the Federal plan in the same way it can delegate
authority to a State:
(1) The applicant is an Indian tribe recognized by the Secretary of
the Interior;
(2) The Indian tribe has a governing body carrying out substantial
governmental duties and functions;
(3) The functions to be exercised by the Indian tribe pertain to
the management and protection of air resources within the exterior
boundaries of the reservation or other areas within the tribe's
jurisdiction; and
(4) The Indian tribe is reasonably expected to be capable, in the
EPA Regional Administrator's judgment, of carrying out the functions to
be exercised in a manner consistent with the terms and purposes of the
CAA and all applicable regulations. (See 40 CFR 49.6.)
2. EPA Implementation
The CAA also provides EPA with the authority to administer Federal
programs in Indian country. This authority is based in part on the
general purpose of the CAA, which is national in scope. Section 301(a)
of the CAA provides EPA broad authority to issue regulations that are
necessary to carry out the functions of the CAA. Congress intended for
EPA to have the authority to operate a Federal program when Tribes
choose not to develop a program, do not adopt an approvable program, or
fail to adequately implement an air program authorized under section
301(d) of the CAA.
Section 301(d)(4) of the CAA authorizes the Administrator to
directly administer provisions of the CAA to achieve the appropriate
purpose where Tribal implementation is not appropriate or
administratively not feasible. The EPA's interpretation of its
authority to directly implement Clean Air Act programs in Indian
country is discussed in more detail in the Tribal Authority Rule. See
63 FR at 7262-7263. As mentioned previously, Tribes may, but are not
required to, submit a CISWI plan under section 111(d) of the CAA.
3. Applicability in Indian Country
The Federal plan would apply throughout Indian country except where
an EPA-approved plan already covers an area of Indian country. This
approach is consistent with EPA's implementation of the Federal
Operating Permits program in Indian country (see 64 FR 8247 (February
19, 1999)).
VII. Title V Operating Permits
Except for the sources specified in section 62.14830 of this
proposed rule, sources subject to this CISWI Federal plan must obtain
title V operating permits. These title V operating permits must assure
compliance with all applicable requirements for these sources,
including all applicable requirements of this Federal plan. See 40 CFR
70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.
Owners or operators of section 129 sources (including CISWI units)
subject to standards or regulations under sections 111 and 129 must
operate pursuant to a title V permit not later than 36 months after
promulgation of emission guidelines under sections 111 and 129 or by
the effective date of the State, Tribal, or Federal title V operating
permits program that covers the area in which the unit is located,
whichever is later. The EPA has interpreted section 129(e) to be
consistent with section 503(d) of the CAA and 40 CFR 70.7(b) and
71.7(b). (See, e.g., the final Federal Plan for Hospital/Medical/
Infectious Waste Incinerators, August 15, 2000 (65 FR 49868, 49878)).
Section 503(d) of the CAA and 40 CFR 70.7(b) and 71.7(b) allow a source
to operate without being in violation of title V once the source has
submitted a timely and complete permit application, even if the source
has not yet received a final title V operating permit from the
permitting authority.\2\ As a result, EPA interprets the dates in
section 129(e) to be the dates by which complete title V applications
need to be submitted. In the absence of such an interpretation, a
section 129 source may be required to prepare and submit a complete
title V application and the permitting authority would have to issue a
permit to this source in a very short period of time.\3\
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\2\ A title V application should be submitted early enough for
the permitting authority to find the application either complete or
incomplete before the title V application deadline. In the event the
application is found incomplete by the permitting authority, the
source must submit the information needed to make the application
complete by the application deadline in order to obtain the
application shield. See 40 CFR 62.14835(b) and 40 CFR 70.5(a)(2) and
71.5(a)(2).
\3\ For example, in the absence of such an interpretation, if a
final Federal plan were to become effective more than 24 months
after the promulgation of emission guidelines promulgated under
sections 111 and 129, a source, if subject to the Federal plan,
would have less than 12 months to prepare and submit a complete
title V permit application and to have the permit issued. EPA's
interpretation allows section 129(e) to be read consistently with
section 503(d) of the Act and 40 CFR 70.7(b) and 71.7(b). EPA's
interpretation is also consistent with section 503(c) of the Act
which requires sources to submit title V applications not later than
12 months after becoming subject to a title V permits programs. If a
permit as opposed to a title V application were required by the
later of the two deadlines specified in section 129(e), some section
129 sources would be required to have been issued final title V
permits in potentially much less time than allotted for non-section
129 sources to submit their title V applications.
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As a result of EPA's interpretation, existing CISWI units must
submit complete title V applications by the later of the following
dates: Not later than 36 months after the promulgation of 40 CFR part
60, subpart DDDD or by the effective date of the State, Tribal, or
Federal title V operating permits program that covers the area in which
the unit is located. As of today's proposal, all areas of the country
are covered by effective title V programs. As a result, the relevant
section 129(e) date for existing CISWI units is 36 months following
promulgation of 40 CFR part 60, subpart DDDD, i.e., December 1, 2003.
Therefore, December 1, 2003 is the latest possible date by which
complete applications for existing CISWI units can be submitted and
still be considered timely. This date applies regardless of when the
CISWI Federal plan becomes effective or when an EPA approved section
111(d)/129 plan for existing CISWI units becomes effective. If,
however, an earlier application deadline applies to an existing CISWI
unit, then this deadline must be met in order for the unit to be in
compliance with section 502(a) of the CAA. To determine when an
application is due for an existing CISWI unit, section 129(e) of the
CAA must be read in conjunction with section 503(c) of the CAA.
As stated in section 503(c), a source has up to 12 months to apply
for a title V permit once it becomes subject to a title V permitting
program.\4\ For example, if an existing CISWI unit
[[Page 70650]]
becomes subject to a title V permitting program for the first time on
the effective date of this Federal plan, then the source must apply for
a title V permit within 12 months of the effective date of this Federal
plan in order to operate after this date in compliance with Federal
law.
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\4\ If a source is subject to title V for more than one reason,
the 12-month time frame for submitting a title V application is
triggered by the requirement which first causes the source to become
subject to title V. As provided in section 503(c) of the CAA,
permitting authorities may establish permit application deadlines
earlier than the 12-month deadline.
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An application deadline earlier than either of the two dates noted
above, i.e., December 1, 2003 or not later than 12 months after the
effective date of this Federal plan, may apply to an existing CISWI
unit if it is subject to title V for more than one reason. For example,
an existing CISWI unit may already be subject to title V as a result of
being a major source under one or more of three major source
definitions in title V--section 112, section 302, or part D of title I
of the CAA. See 40 CFR 70.3(a)(1) and 71.3(a)(1) (subjecting major
sources to title V permitting) and 40 CFR 70.2 and 71.2 (defining major
source for purposes of title V). See also 40 CFR 70.3(a) and (b) and
71.3(a) and (b) for a list of the applicability criteria which trigger
the requirement to apply for a title V permit.
If an owner or operator is already subject to title V by virtue of
some requirement other than this Federal plan and has submitted a
timely and complete permit application, but the draft title V permit
has not yet been released by the permitting authority, then the owner
or operator must supplement his title V application by including the
applicable requirements of this Federal plan in accordance with 40 CFR
70.5(b) or 71.5(b). If an existing CISWI unit is a major source or is
part of a major source, is subject to this Federal plan, and is already
covered by a title V permit with a remaining permit term of 3 or more
years on the effective date of this Federal plan, then the owner or
operator will receive from his permitting authority a notice of intent
to reopen his source's title V permit to include the requirements of
this Federal plan. Reopenings required for such CISWI units must be
completed not later than 18 months after the effective date of this
Federal plan in accordance with the procedures established in 40 CFR
70.7(f)(1)(i) or 71.7(f)(1)(i). If an existing CISWI unit subject to
this Federal plan does not meet the above criteria, e.g., the unit is
part of a nonmajor source or is covered by a permit which has a
remaining term of less than 3 years on the effective date of this
Federal plan, then the permitting authority does not need to reopen the
source's permit, as a matter of Federal law, to include the
requirements of this Federal plan.\5\ However, the owner or operator of
a source subject to a section 111/129 Federal plan remains subject to,
and must act in compliance with, section 111/129 requirements and all
other applicable requirements to which the source is subject regardless
of whether these requirements are included in a title V permit. See 40
CFR 70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.
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\5\ See CAA section 502(b)(9); 40 CFR 70.7(f)(1)(i) and
71.7(f)(1)(i). Owners or operators of CISWI units, which have been
permitted and are subject to this Federal plan, may wish to consult
their operating permits program regulations or permitting
authorities to determine whether their permits must be reopened to
incorporate the requirements of this Federal plan.
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The EPA has recently become aware that there has been some
confusion regarding the Title V obligations of section 129 sources that
are subject to standards or regulations under sections 111 and 129. We
are therefore including the following chart to help clarify when CISWI
units (even those not subject to this Federal plan) must apply for a
title V permit. While the following chart provides specific information
relative to CISWI units, the same title V obligations apply to all
section 129 sources subject to standards or regulations under sections
111 and 129. Of course, specific deadlines will vary for other section
129 sources depending on when the relevant NSPS is promulgated, when
the relevant State or Tribal section 111(d)/129 plan is approved by EPA
and becomes effective, etc. Lastly, the following table takes into
account that as of the promulgation date, i.e., December 1, 2000, for
the NSPS (subpart CCCC of part 60) and emission guidelines (subpart
DDDD of part 60) for CISWI units, every area of the country was covered
by a title V permits program under 40 CFR part 70 or part 71. This
point is relevant because a section 111/129 standard cannot trigger the
requirement for a source to apply for a title V permit unless a title V
permits program is in effect in the area in which the source is
located.
------------------------------------------------------------------------
------------------------------------------------------------------------
Title V Permit Application Deadlines
------------------------------------------------------------------------
If a CISWI unit is a major source Then a complete title V application
or is part of a major source, which covers the entire source \6\
and had commenced operation as is due not later than 12 months (or
of the effective date of the earlier if required by the title V
relevant title V permits permitting authority) after the
program, effective date of the relevant title
V permits program. See CAA section
503(c) and 40 CFR 70.4(b)(11)(i),
71.4(i)(1), 70.5(a)(1)(i) and
71.5(a)(1)(i).
----------------------------------
If a CISWI unit is a major source Then a complete title V application
or is part of a major source, which covers the entire source is
but did not commence operation due not later than 12 months (or
until after the relevant title V earlier if required by the title V
permits program became permitting authority) after the date
effective, the source commences operation. See
CAA section 503(c) and 40 CFR
70.5(a)(1)(i) and 71.5(a)(1)(i).
----------------------------------
[[Page 70651]]
If a CISWI unit is a nonmajor Then a complete title V application
source or is part of a nonmajor \7\ is due not later than 12 months
source, is subject to the CISWI after subpart CCCC was promulgated,
NSPS (subpart CCCC of 40 CFR i.e., December 1, 2001 (or earlier
part 60), and had commenced if required by the title V
operation as of December 1, permitting authority). See CAA
2000, section 503(c) and 40 CFR
70.5(a)(1)(i) and 71.5(a)(1)(i).
----------------------------------
If a CISWI unit is a nonmajor Then a complete title V application
source or is part of a nonmajor \7\ is due not later than 12 months
source, is subject to the CISWI (or earlier if required by the title
NSPS (subpart CCCC of 40 CFR V permitting authority) after the
part 60), but did not commence date the source commences operation.
operation until after December See CAA section 503(c) and 40 CFR
1, 2000, 70.5(a)(1)(i) and 71.5(a)(1)(i).
----------------------------------
If a CISWI unit is a nonmajor Then a complete title V application
source or is part of a nonmajor is due not later than 12 months (or
source, and is subject to an EPA earlier if required by the title V
approved and effective State or permitting authority) after the
Tribal section 111(d)/129 plan, effective date of the EPA approved
State or Tribal section 11(d)/129
plan.\8\ See CAA section 503(c) and
40 CFR 70.5(a)(1)(i) and
71.5(a)(1)(i). In no event, however,
can such an existing CISWI unit
submit a complete title V
application after December 1, 2003
and have it be considered timely.
See CAA section 129(e) and 40 CFR
62.14835 of subpart III.
----------------------------------
If a CISWI unit is a nonmajor Then a complete title V application
source or is part of a nonmajor is due not later than 12 months (or
source, and is subject to the earlier if required by the title V
CISWI Federal plan (subpart III permitting authority) after the
of 40 CFR part 62), effective date of 40 CFR part 62,
subpart III. See CAA section 503(c)
and 40 CFR 70.5(a)(1)(i) and
71.5(a)(1)(i). In no event, however,
can such an existing CISWI unit
submit a complete title V
application after December 1, 2003
and have it be considered timely.
See CAA section 129(e) and 40 CFR
62.14835 of subpart III.
----------------------------------
If a CISWI unit is required to Then a complete title V application
obtain a title V permit due to is due not later than 12 months (or
triggering more than one of the earlier if required by the title V
applicability criteria listed permitting authority) after the unit
above or in 40 CFR 70.3(a) or triggers the criterion which first
71.3(a), caused the unit to be subject to
title V. See CAA section 503(c) and
40 CFR 70.3(a) and (b), 70.5(a)(1),
71.3(a) and (b) and 71.5(a)(1). In
no event, however, can an existing
CISWI unit submit a complete title V
application after December 1, 2003
and have it be considered timely.
See CAA section 129(e) and 40 CFR
62.14835 of subpart III.
----------------------------------
Reopening Title V Permits
------------------------------------------------------------------------
If a CISWI unit is a major source Then the title V permitting authority
or is part of a major source, is must complete a reopening of the
subject to the CISWI NSPS source's title V permit to
(subpart CCCC of 40 CFR part incorporate the requirements of 40
60), and is covered by a title V CFR part 60, subpart CCCC not later
permit with a remaining permit than June 1, 2002. See CAA section
term of 3 or more years on 502(b)(9); 40 CFR 70.7(f)(1)(i) and
December 1, 2000, 71.7(f)(1)(i).
----------------------------------
If a CISWI unit is a major source Then the title V permitting authority
or is part of a major source, is must complete a reopening of the
subject to an EPA approved and source's title V permit to
effective State or Tribal incorporate the requirements of this
section 111(d)/129 plan for EPA approved and effective section
CISWI units, and is covered by a 111(d)/129 plan not later than 18
title V permit with a remaining months after the effective date of
term of 3 or more years on the this plan. See CAA section
effective date of the EPA 502(b)(9); 40 CFR 70.7(f)(1)(i) and
approved section 111(d)/129 71.7(f)(1)(i).
plan,
----------------------------------
If a CISWI unit is a major source Then the title V permitting authority
or is part of a major source, is must complete a reopening of the
subject to the CISWI Federal source's title V permit to
plan (supbart III of 40 CFR part incorporate the requirements of
62), and is covered by a title V subpart III of 40 CFR part 62 not
permit with a remaining permit later than 18 months after the
term of 3 or more years on the effective date of the CISWI Federal
effective date of this Federal plan. See CAA section 502(b)(9); 40
plan, CFR 70.7(f)(1)(i) and 71.7(f)(1)(i).
----------------------------------
Updating Existing Title V Permit Applications
------------------------------------------------------------------------
If a CISWI unit is subject to the Then the owner or operator must
CISWI NSPS (subpart CCCC of 40 supplement the title V application
CFR part 60), but first became by including the applicable
subject to title V permitting requirements of 40 CFR part 60,
prior to the promulgation of subpart CCCC in accordance with 40
this NSPS, and the owner or CFR 70.5(b) or 71.5(b).
operator of the unit has
submitted a timely and complete
title V permit application, but
the draft title V permit has not
yet been released by the
permitting authority,
----------------------------------
If a CISWI unit is subject to an Then the owner or operator must
EPA approved and effective State supplement the title V application
or Tribal section 111(d)/129 by including the applicable
plan for CISWI units, but first requirements of the approved and
became subject to title V effective section 111(d)/129 plan in
permitting prior to the accordance with 40 CFR 70.5(b) or
effective date of the section 71.5(b).
111(d)/129 plan, and the owner
or operator of the unit has
submitted a timely and complete
title V permit application, but
the draft title V permit has not
yet been released by the
permitting authority,
----------------------------------
[[Page 70652]]
If a CISWI unit is subject to the Then the owner or operator must
CISWI Federal plan (subpart III supplement the title V application
of 40 CFR part 62), but first by including the applicable
became subject to title V requirements of 40 CFR part 62,
permitting prior to the subpart III in accordance with 40
effective date of this Federal CFR 70.5(b) or 71.5(b).
plan, and the owner or operator
of the unit has submitted a
timely and complete title V
permit application, but the
draft title V permit has not yet
been released by the permitting
authority,
------------------------------------------------------------------------
\6\ A title V application from a major source must address all emissions
units at the title V source, not just the section 129 emissions unit.
See 40 CFR 70.3(c)(1) and 71.3(c)(1). (For information on aggregating
emissions units to determine what is a source under title V, see the
definition of major source in 40 CFR 70.2, 71.2, and 63.2.)
\7\ Consistent with 40 CFR 70.3(c)(2) and 71.3(c)(2), a permit
application from a nonmajor title V source is only required to address
the emissions units which caused the source to be subject to title V.
The requirements which trigger the need for the owner or operator of a
nonmajor source to apply for a title V permit are found in 40 CFR
70.3(a) and (b) and 71.3(a) and (b). Permits issued to these nonmajor
sources must include all of the applicable requirements that apply to
the triggering units, e.g., State Implementation Plan requirements,
not just the requirements which caused the source to be subject to
title V. See footnote 2 in Change to Definition of Major
Source rule, November 27, 2001 (66 FR 59161, 59163).
\8\ If a CISWI unit becomes subject to an approved and effective State
or Tribal section 111(d)/129 plan after being subject to an effective
Federal plan, the CISWI unit is still required to file a complete
title V application consistent with the application deadlines for
units subject to the CISWI Federal plan.
?Title V and Delegation of a Federal Plan
During the development of the Federal plan for Hospital/Medical/
Infectious Waste Incinerators (HMIWI), a State agency raised the
question of whether a title V operating permits program could be used
as a mechanism for transferring the authority to implement and enforce
section 111/129 requirements from EPA to State and local agencies. See
``Transfer of Authority'' section of final Federal plan for HMIWI,
August 15, 2000 (65 FR 49868, 49873). The State agency noted that the
proposal for that rulemaking described two mechanisms for transferring
authority to State and local agencies following promulgation of the
Federal plan. Those two mechanisms were: (1) The approval of a State or
Tribal plan after the Federal plan is in effect; and (2) if a State or
Tribe does not submit or obtain approval of its own plan, EPA
delegation to a State or Tribe of the authority to implement and
enforce the HMIWI Federal plan. The State asked EPA to recognize the
Title V operating permits program as a third mechanism for transferring
authority to State and local agencies. The commenter said that State
and local agencies implement Title V programs and that Title V permits
must include the requirements of the Federal plan. The commenter
concluded that Title V permitting authorities already have
implementation responsibility for the Federal plan through their Title
V permits programs, regardless of whether the authority to implement
the Federal plan is delegated to the State or local agency.
In its response to the State, the EPA explained why the issuance of
a Title V permit is not equivalent to the approval of a State plan or
delegation of a Federal plan by focusing on situations in which a Title
V permitting authority without delegation of a Federal plan could not
implement and enforce section 111/129 requirements. This situation
would arise any time a Title V permit was not in effect for a source
subject to the section 111/129 Federal plan or where the permit did not
contain the applicable section 111/129 requirements. For example, a
title V source may be allowed to operate without a title V permit for a
number of years in some cases between the time the source first
triggers the requirement to apply for a permit and the issuance of the
permit. The preamble to the final HMIWI Federal plan also noted that a
source with a Title V permit with a permit term less than 3 years is
not required by part 70 to have its permit reopened by a State or Tribe
to include new applicable requirements such as the HMIWI standard.\9\
See 40 CFR 70.7(f)(1)(i).
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\9\ An owner or operator of a source subject to a section 111/
129 Federal plan remains subject to, and must act in compliance
with, section 111/129 requirements and all other applicable
requirements to which the source is subject regardless of whether
these requirements are included in a title V permit. See 40 CFR
70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.
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In addition to the explanation provided in the preamble to the
final HMIWI Federal plan, there are additional State implementation and
enforcement gaps which would not be addressed by implementing and
enforcing the section 111/129 standard through a Title V permit. The
following is an example of such a gap: Title V permits are not
permanent. With two exceptions, all permits must be renewed at least
every 5 years \10\. Although 40 CFR 70.4(b)(10) requires States to
provide that a permit or the terms and conditions of a permit may not
expire until the permit is renewed, this requirement only applies if a
timely and complete application for a renewal permit has been submitted
by the source, creating a potential gap. In contrast to the example,
the two mechanisms that EPA has identified for transferring authority
ensure that a State or Tribe can implement and enforce the section 111/
129 standards at all times.
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\10\ Under 40 CFR 70.4(b)(3)(iv), permitting authorities are
allowed to issue permits for solid waste incineration units
combusting municipal waste subject to standards under section 129(e)
of the Act for a period not to exceed 12 years, provided that the
permits are reviewed at least every 5 years. Permits with acid rain
provisions must be issued for a fixed term of five years; shorter
terms for such permits are not allowed.
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Legally, delegation of a standard or requirement results in a
delegated State or Tribe standing in for EPA as a matter of Federal
law. This means that obligations a source may have to the EPA under a
federally promulgated standard become obligations to a State (except
for functions that the EPA retains for itself) upon delegation.\11\
Although a State or Tribe may have the authority to incorporate section
111/129 requirements into its title V permits, and implement and
enforce these requirements in these permits without first taking
delegation of the section 111/129 Federal plan, the State or Tribe is
not standing in for EPA as a matter of Federal law in this situation.
Where a State or Tribe does not take delegation of a section 111/129
Federal plan, obligations that a source has to EPA under the Federal
plan continue after a title V permit is issued to the source. As a
result, the EPA continues to maintain that an approved part 70
operating permits program cannot be used as a mechanism to transfer the
authority to implement and enforce the Federal plan from the EPA to a
State or Tribe.
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\11\ If the Administrator chooses to retain certain authorities
under a standard, those authorities cannot be delegated, e.g.,
alternative methods of demonstrating compliance.
---------------------------------------------------------------------------
As mentioned above, a State or Tribe may have the authority under
State or Tribal law to incorporate section 111/129 requirements into
its title V permits, and implement and enforce these requirements in
that context without first taking delegation of the section 111/129
Federal plan.\12\ Some States or
[[Page 70653]]
Tribes, however, may not be able to implement and enforce a section
111/129 standard in a title V permit until the section 111/129 standard
has been delegated. In these situations, a State or Tribe should not
issue a part 70 permit to a source subject to a Federal plan before
taking delegation of the section 111/129 Federal plan.
---------------------------------------------------------------------------
\12\ The EPA interprets the phrase ``assure compliance'' in
section 502(b)(5)(A) to mean that permitting authorities will
implement and enforce each applicable standard, regulation, or
requirement which must be included in the title V permits the
permitting authorities issue. See definition of ``applicable
requirement'' in 40 CFR 70.2. See also 40 CFR 70.4(b)(3)(i) and
70.6(a)(1).
---------------------------------------------------------------------------
If a State or Tribe can provide an Attorney General's (AG's)
opinion delineating its authority to incorporate section 111/129
requirements into its Title V permits, and then implement and enforce
these requirements through its Title V permits without first taking
delegation of the requirements, then a State or Tribe does not need to
take delegation of the section 111/129 requirements for purposes of
title V permitting.\13\ In practical terms, without approval of a State
or Tribal plan, delegation of a Federal plan, or an adequate AG's
opinion, States and Tribes with approved part 70 permitting programs
open themselves up to potential questions regarding their authority to
issue permits containing section 111/129 requirements, and to assure
compliance with these requirements. Such questions could lead to the
issuance of a notice of deficiency for a State's or Tribe's part 70
program. As a result, prior to a State or Tribal permitting authority
drafting a part 70 permit for a source subject to a section 111/129
Federal plan, the State or Tribe, EPA Regional Office, and source in
question are advised to ensure that delegation of the relevant Federal
plan has taken place or that the permitting authority has provided to
the EPA Regional Office an adequate AG's opinion.
---------------------------------------------------------------------------
\13\ It is important to note that an AG's opinion submitted at
the time of initial title V program approval is sufficient if it
demonstrates that a State or Tribe has adequate authority to
incorporate section 111/129 requirements into its title V permits,
and to implement and enforce these requirements through its title V
permits without delegation.
---------------------------------------------------------------------------
In addition, if a permitting authority chooses to rely on an AG's
opinion and not take delegation of a Federal plan, a section 111/129
source subject to the Federal plan in that State must simultaneously
submit to both EPA and the State or Tribe all reports required by the
standard to be submitted to the EPA. Given that these reports are
necessary to implement and enforce the section 111/129 requirements
when they have been included in title V permits, the permitting
authority needs to receive these reports at the same time as the EPA.
In the situation where a permitting authority chooses to rely on an
AG's opinion and not take delegation of a Federal plan, EPA Regional
Offices will be responsible for implementing and enforcing section 111/
129 requirements outside of any title V permits. Moreover, in this
situation, EPA Regional Offices will continue to be responsible for
developing progress reports, entering emissions data into the
Aerometric Information Retrieval System (AIRS)/AIRS Facility Subsystem
(AFS), and conducting any other administrative functions required under
this Federal plan or any other section 111/129 Federal plan. See
Section III.J. of this preamble titled ``Progress Reports'; section
II.J. of the proposed Federal plan for HMIWI, July 6, 1999 (64 FR
36426, 36431); 40 CFR 60.25(e), and Appendix D of 40 CFR part 60.
It is important to note that the EPA is not using its authority
under 40 CFR 70.4(i)(3) to request that all States and Tribes which do
not take delegation of this Federal plan submit supplemental AG's
opinions at this time. However, the EPA Regional Offices shall request,
and permitting authorities shall provide, such opinions when the EPA
questions a State's or Tribe's authority to incorporate section 111/129
requirements into a title V permit, and implement and enforce these
requirements in that context without delegation.
Lastly, the EPA would like to correct and clarify the following
sentences from the ``Transfer of Authority'' section of the preamble to
the final HMIWI Federal plan (65 FR 49868, 49873): ``Prior to
delegation, only the EPA will have enforcement authority. In neither
instance does the title V permit status of a source affect the
enforcement responsibility of EPA and the State or Tribal permitting
authorities.'' In situations where a State or Tribe is subject to a
section 111/129 Federal plan and does not take delegation of the
Federal plan, the following applies: Prior to delegation, only EPA can
implement and enforce section 111/129 requirements outside of a title V
permit. Whenever there is a title V permit in effect which includes
section 111/129 requirements, however, EPA and the State or Tribe have
dual authority to implement and enforce the section 111/129
requirements in the title V permit. When a State or Tribe has not taken
delegation of a section 111/129 Federal plan, the previous sentence is
relevant only in situations where a State or Tribe has the authority to
incorporate section 111/129 requirements into title V permits, and to
implement and enforce these requirements in title V permits without
delegation.
VIII. Administrative Requirements
This section addresses the following administrative requirements:
Docket, Public Hearing, Executive Orders 12866, 13132, 13175, 13045,
and 13211, Unfunded Mandates Reform Act, Regulatory Flexibility Act,
Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act, Paperwork Reduction Act, and the National Technology
Transfer and Advancement Act. Since today's rule simply proposes to
implement the CISWI emission guidelines (40 CFR part 60, subpart DDDD)
as promulgated on December 1, 2000, and does not impose any new
requirements, much of the following discussion of administrative
requirements refers to the documentation of applicable administrative
requirements as discussed in the preamble to the rule promulgating the
emission guidelines (65 FR 75338, December 1, 2000).
A. Docket
The docket is intended to be an organized and complete file of the
administrative records compiled by EPA. The docket is a dynamic file
because material is added throughout the rulemaking process. The
docketing system is intended to allow members of the public and
industries involved to readily identify and locate documents so they
can effectively participate in the rulemaking process. Along with
proposed and promulgated standards and their preambles, the contents of
the docket (with limited exceptions) will serve as the record in the
case of judicial review. See section 307(d)(7)(A) of the CAA.
As discussed above, a docket has been prepared for this action
pursuant to the procedural requirements of section 307(d) of the CAA,
42 U.S.C. 7607(d). Supporting information is included in Docket A-2000-
52. Docket number A-94-63 contains the technical support for the final
emission guidelines, 40 CFR part 60, subpart DDDD. Docket A-2000-52
incorporates all of the information in Docket A-94-63.
B. Public Hearing
A public hearing will be held, if requested, to discuss the
proposed standards in accordance with section 307(d)(5) of the CAA.
Persons wishing to make oral presentations on the proposed standards
should contact EPA (see ADDRESSES). If a public hearing is requested
and held, EPA will ask clarifying questions during the oral
[[Page 70654]]
presentation but will not respond to the presentations or comments. To
provide an opportunity for all who may wish to speak, oral
presentations will be limited to 15 minutes each. Any member of the
public may file a written statement on or before January 24, 2003.
Written statements should be addressed to the Air and Radiation Docket
and Information Center (see ADDRESSES), and refer to Docket No. A-2000-
52. Written statements and supporting information will be considered
with equivalent weight as any oral statement and supporting information
subsequently presented at a public hearing, if held. A verbatim
transcript of the hearing and written statements will be placed in the
docket and be available for public inspection and copying, or mailed
upon request, at the Air and Radiation Docket and Information Center
(see ADDRESSES).
C. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the Executive
Order. The order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The EPA considered the 2000 emission guidelines to be significant
and the rules were reviewed by OMB in 2000. See 65 FR 75338, December
1, 2000. The Federal plan promulgated today would simply implement the
2000 emission guidelines and does not result in any additional control
requirements or impose any additional costs above those previously
considered during promulgation of the 2000 emission guidelines.
Therefore, this regulatory action is considered ``not significant''
under Executive Order 12866.
D. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have Federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule establishes emission
limits and other requirements for solid waste incineration units that
are not covered by an EPA-approved and effective State or Tribal plan.
The EPA is required by section 129 of the CAA, 42 U.S.C. 7429, to
establish the standards for such units. This regulation primarily
affects private industry and does not impose significant economic costs
on State or local governments. The standards established by this rule
apply to facilities that operate commercial or industrial solid waste
incineration units located in States that do not have EPA-approved
plans covering such units by the effective date of the promulgated
Federal plan (and the owners or operators of such facilities). The
regulation does not include an express provision preempting State or
local regulations. However, once this Federal plan is in effect,
covered facilities would be subject to the standards established by
this rule, regardless of any less protective State or local regulations
that contain emission limitations for the pollutants addressed by this
rule. To the extent that this might preempt State or local regulations,
it does not significantly affect the relationship between the national
government and the States, or the distribution of power and
responsibilities among the various levels of government. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule; and EPA has complied with the requirements of section 4(e), to
the extent that they may be applicable to the regulations, by providing
notice to potentially affected State and local officials through
publication of this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA consulted with representatives of State and local governments
to enable them to provide meaningful and timely input into the
development of the CISWI emission guidelines. This consultation took
place during the Industrial Combustion Coordinated Rulemaking Federal
Advisory Committee Act committee meetings, where members representing
State and local governments participated in developing recommendations
for our combustion-related rulemakings, including the CISWI emission
guidelines. Additionally, EPA sponsored the Small Communities Outreach
Project, which involved meetings with elected officials and other
government representative to provide them with information about the
CISWI emission guidelines and to solicit their comments. The concerns
raised by representative of State and local governments were considered
during the development of the CISWI emission guidelines.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
E. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
The EPA knows of no CISWI units presently owned by Indian tribal
[[Page 70655]]
governments. However, if any exist now or in the future, the rule would
not have tribal implications on these tribal governments as defined by
the Executive Order. This Federal plan simply implements the 2000
emission guidelines. It does not result in any additional control
requirements nor imposes any additional costs above those previously
considered during promulgation of the 2000 emission guidelines. Thus,
the requirements of Executive Order 13175 do not apply.
F. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, (2) concerns an environmental
health or safety risk that EPA has reason to believe may
disproportionately affect children. If the regulatory action meets
these criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives EPA considered.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it is based on technology
performance and not on health or safety risks. Additionally, this
proposed rule is not economically significant as defined by Executive
Order 12866.
G. Executive Order 13211: Energy Effects
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 F.R. 28355 (May 22, 2001)) because it is not
a significant regulatory action under Executive Order 12866.
H. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year.
Before promulgating a rule for which a written statement is needed,
section 205 of the UMRA generally requires us to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows us to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, EPA must develop under section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, thereby enabling officials of affected
small governments to have meaningful and timely input in the
development of the regulatory proposal with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
The EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any 1 year. The environmental impact analysis for the
emission guidelines estimates the total national annualized cost impact
of this regulatory action at $11.6 million per year (Docket A-94-63).
This proposed Federal plan will apply to only a subset of the units
considered in the environmental impacts analysis for the emission
guidelines. Thus, this rule is not subject to the requirements of
sections 202 and 205 of the UMRA. Additionally, EPA has determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments, because commercial and industrial
units are not likely to be owned by small governments.
I. Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act (SBREFA)
The Regulatory Flexibility Act (RFA) of 1980, as amended by the
Small Business Regulatory Enforcement Fairness (SBREFA), 5 U.S.C. 601
et seq., generally requires Federal agencies to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include businesses, small not-for-profit
enterprises, and small governmental jurisdictions. For purposes of
assessing the impacts of today's rule on small entities, small entity
is defined as: (1) A small business that has less than 500 employees;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise that is independently owned and operated and is not
dominant in its field. The SBA guidelines define a small business based
on number of employees or annual revenues and the size standards vary
from industry to industry. Generally, businesses covered by the North
American Industrial Classification System (NAICS) codes affected by
this rule are considered small if they have less than 500 employees or
less than $5 million in annual sales.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
During the 2000 CISWI emission guidelines rulemaking, EPA
determined that based on the low number of affected small entities in
each individual market, the alternative method of waste disposal
available, and the relatively low control cost, the CISWI emission
guidelines should not generate a significant small business impact on a
substantial number of small entities in the commercial and industrial
sectors. The EPA determined that it was not necessary to prepare a
regulatory flexibility analysis in connection with the final emission
guidelines. The EPA has also determined that the final emission
guidelines would not have a significant economic impact on a
substantial number of small entities (65 FR 75348). This Federal plan
would not establish any new requirements. Therefore, pursuant to the
provisions of 5 U.S.C. 605(b), EPA has determined that this proposed
Federal plan will not have a significant impact on a substantial number
of small entities, and thus a regulatory flexibility analysis is not
required.
[[Page 70656]]
J. Paperwork Reduction Act
The information collection requirements have been submitted for
approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. An information collection request (ICR) document has been prepared
for the emission guidelines (ICR No. 1927.02 for subpart DDDD) and
copies may be obtained from Susan Auby by mail at U.S. Environmental
Protection Agency, Office of Environmental Information; Collection
Strategies Division (2822T); 1200 Pennsylvania Avenue, NW.; Washington,
DC 20460, by e-mail at auby.susan@epa.gov, or by calling (202) 566-
1672. Copies may also be downloaded from the internet at http://
www.epa.gov/icr.
This ICR reflects the burden estimate for the emission guidelines
which were promulgated in the Federal Register on December 1, 2000. The
burden estimate includes the burden associated with State or Tribal
plans as well as the burden associated with the proposed Federal plan.
Consequently, the burden estimates described below overstate the
information collection burden associated with the Federal plan.
However, upon approval by EPA, a State or Tribal plan becomes Federally
enforceable. Therefore, it is important to estimate the full burden
associated with the State or Tribal plans and the Federal plan. As
State or Tribal plans are approved, the Federal plan burden will
decrease, but the overall burden of the State or Tribal plans and the
Federal plan will remain the same.
The Federal plan contains monitoring, reporting, and recordkeeping
requirements. The information will be used to ensure that the Federal
plan requirements are met on a continuous basis. Records and reports
will be necessary to enable us to identify waste incineration units
that may not be in compliance with the Federal plan requirements. Based
on reported information, EPA would decide which units and what records
or processes should be inspected. The records that owners and operators
of existing CISWI units maintain will indicate to EPA whether personnel
are operating and maintaining control equipment property.
These recordkeeping and reporting requirements are specifically
authorized by section 114 of the CAA (42 U.S.C. 7414). All information
submitted to us for which a claim of confidentiality is made will be
safeguarded according to our policies in 40 CFR part 2, subpart B,
Confidentiality of Business Information.
The estimated average annual burden for the first 3 years after
promulgation of the emission guidelines for industry and the
implementing agency is outlined below.
----------------------------------------------------------------------------------------------------------------
Capital
Affected entity Total hours Labor costs costs O&M costs Total costs
----------------------------------------------------------------------------------------------------------------
Industry....................................... 9,145 $407,067 0 0 $407,067
Implementing agency............................ 1,817 $48,386 0 0 $48,386
----------------------------------------------------------------------------------------------------------------
The EPA expects the Federal plan to affect a maximum of 116 units
over the first 3 years. (Note: This assumes that no State plans are in
effect.) The EPA assumes that 6 existing units will be replaced by 6
new units each year. There are no capital, start-up, or operation and
maintenance costs for existing units during the first 3 years. The
implementing agency would not incur any capital or start-up costs.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, disclose, or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control number for this
proposed rule and for the emissions guidelines which it implements is
2060-0451. The OMB control numbers for our regulations are listed in 40
CFR part 9 and 48 CFR chapter 15.
K. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272) directs EPA to use
voluntary consensus standards in regulatory and procurement activities
unless to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures,
business practices) developed or adopted by one or more voluntary
consensus bodies. The NTTAA directs EPA to provide Congress, through
annual reports to the Office of Management and Budget (OMB), with
explanations when an agency does not use available and applicable
voluntary consensus standards.
This proposed Federal plan involves technical standards. The EPA
proposes in this plan to use EPA Methods 1, 3A, 3B, 5, 6, 6C, 7, 7A,
7C, 7D, 7E, 9, 10, 10A, 10B, 23, 26A, and 29. Consistent with the
NTTAA, EPA conducted searches to identify voluntary consensus standards
in addition to these EPA methods. No applicable voluntary consensus
standards were identified for EPA Methods 7A, 7D, 9, and 10B. The
search and review results have been documented and are placed in the
Docket No. A-2000-52 for this proposed plan.
This search for emission measurement procedures identified 24
voluntary consensus standards. The EPA determined that 20 of these 24
standards were impractical alternatives to EPA test methods for the
purposes of this proposed Federal plan. Therefore, EPA does not propose
to adopt these standards today. The reasons for this determination for
the 20 methods are discussed below.
The standard, ASTM D3162 (1994) ``Standard Test Method for Carbon
Monoxide in the Atmosphere (Continuous Measurement by Nondispersive
Infrared Spectrometry),'' is impractical as an alternative to EPA
Method 10 in this proposed Federal plan because this ASTM standard,
which is stated to be applicable in the range of 0.5-100 ppm CO, does
not cover the potential range in the plan (up to 157 ppm). Whereas EPA
Method 10 has a range from 20-1000 ppm CO. Also, ASTM D3162