Monday,

November 25, 2002 Part II Environmental Protection Agency 40 CFR Part 62 Federal Plan Requirements for Commercial and Industrial Solid Waste Incinerators Constructed on or Before November 30, 1999; Proposed Rule VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70640 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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.

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 RDocket 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.

VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70641 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules Regulated entities. The proposed Federal plan would affect the following North American Industrial Classification System ( NAICS) and Standard Industrial Classification ( SIC) codes:

Category NAICS Code SIC Code Examples of potentially regulated entities Any industry using a solid waste incinerator as defined in the regulations. 325 28 Manufacturers of chemicals and allied products.

325 34 Manufacturers of electronic equipment. 421 36 Manufacturers of wholesale trade, durable goods. 321, 337 24, 25 Manufacturers of lumber and wood furniture.

This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities 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 Region Contact Phone/ Fax States and Protectorates I ........... EPA New England Director, Air Compliance Program, 1 Congress Street, Suite 1100 ( SEA), Boston, MA 02114   2023. 617   918   1650, 617   918   1505 ( fax). CT, ME, MA, NH, RI, VT II .......... U. S. EPA   Region 2, Air Compliance Branch, 290 Broadway, New York, New York 10007. 212   637   4080, 212   637   3998 ( fax). NJ, NY, Puerto Rico, Virgin Islands III ......... U. S. EPA   Region 3, Chief, Air Enforcement Branch ( 3AP12), 1650 Arch Street, Philadelphia, PA 19103   2029. 215   814   3438, 215   814   2134 ( fax). DE, DC, MD, PA, VA, WV IV ......... U. S. EPA   Region 4, Air and Radiation, Technology Branch, Atlanta Federal Center, 61 Forsyth Street, Atlanta, Georgia 30303   3104. 404   562   9105, 404   562   9095 ( fax). AL, FL, GA, KY, MS, NC, SC, TN V .......... U. S. EPA   Region 5, Air Enforcement and Compliance Assurance Branch, ( AR   18J), 77 West Jackson Boulevard, Chicago IL 60604   3590. 312   353   2211, 312   886   8289 ( fax). IL, IN, MN, OH, WI VI ......... U. S. EPA   Region 6, Chief, Toxics Enforcement, Section ( 6EN   AT), 1445 Ross Avenue, Dallas, TX 75202   2733. 214   665   7224, 214   665   7446 ( fax). AR, LA, NM, OK, TX VII ........ U. S. EPA   Region 7, 901 N. 5th Street, Kansas City, KS 66101 913   551   7020, 913   551   7844 ( fax). IA, KS, MO, NE VIII ....... U. S. EPA   Region 8, Air Program Technical Unit, ( Mail Code 8P   AR), 999 18th Street Suite 500, Denver, CO 80202. 303   312   6007, 303   312   6064 ( fax). CO, MT, ND, SD, UT, WY IX ......... U. S. EPA   Region 9, Air Division, 75 Hawthorne Street, San Francisco, CA 94105. 415   744   1219, 415   744   1076 ( fax). AZ, CA, HI, NV, American Samoa, Guam X .......... U. S. EPA   Region 10, Office of Air Quality, 1200 Sixth Avenue, Seattle, WA 98101. ( 206) 553   4273, ( 206) 553   0110 ( fax).

Organization of this document. The following outline is provided to aid in locating information in this preamble.

I. Background Information A. What is the 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70642 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 1 Similarly, the obligations of States and sources are unaffected by the reconsideration petition and the remand. 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. 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 fielderected 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 § 62.14525 of subpart III are VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70643 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 § § 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 Element of the CISWI Federal plan Location Legal authority and enforcement mechanism Sections 129( b)( 3) 111( d), 301( a), and 301( d)( 4) of the CAA Inventory of Affected MWC Units. Docket A   2000   52 Inventory of Emissions. Docket A   2000   52 TABLE 2.   ELEMENTS OF THE CISWI FEDERAL PLAN   Continued Element of the CISWI Federal plan Location Emission Limits 40 CFR 62.14630   62.14645 Compliance Schedules. 40 CFR 62.14535   62.14575 Operator Training and Qualification. 40 CFR 62.14595   62.14625 Waste Management Plan. 40 CFR 62.14580   62.14590 Record of Public Hearings. Docket A   2000   52 Testing, Monitoring Recordkeeping and Reporting 40 CFR 62.14670   62.14760 Progress Reports Section III. J of this preamble A. Legal Authority and Enforcement Mechanism 1. EPA's Legal Authority in States Section 301( a) of the CAA provides 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70644 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 ( § 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70645 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 For these pollutants You must meet these emission limitations a And determine compliance using these methods b Cadmium .............................. 0.004 mg/ dscm ................................................................ EPA Method 29 Carbon Monoxide ................. 157 ppm .......................................................................... EPA Methods 10, 10A, or 10B Dioxins/ Furans, toxic equivalent ( TEQ) basis. 0.41 ng/ dscm ................................................................... EPA Method 23 Hydrogen Chloride ............... 62 ppm by dry volume .................................................... EPA Method 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 volume .................................................. EPA Method 7, 7A, 7C, 7D, or 7E Particulate Matter ................. 70 mg/ dscm ..................................................................... EPA Method 5 or 29 Sulfur Dioxide ....................... 20 ppm by dry volume .................................................... EPA Method 6 or 6c a All emission limitations ( except opacity) are measured at 7 percent oxygen, dry basis at standard conditions. b These methods are in 40 CFR part 60, appendix A.

B. What Operating Limits Must I Meet?

If you are using a wet scrubber to comply with the emission limitations, you 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 For these operating parameters You must establish these operating limits And monitor continuously using these recording times Charge rate .......................... Maximum charge rate ..................................................... Every hour Pressure drop across the wet scrubber, or amperage to the wet scrubber. Minimum pressure drop or amperage ............................ Every 15 minutes Scrubber liquor flow rate ...... Minimum flow rate ........................................................... Every 15 minutes For these operating parameters You must establish these operating limits. ..................... And monitor continuously using 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 § 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70646 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 semiannually 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 sitespecific 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 sitespecific 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70647 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70648 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 ( § 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 nonopacity 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 § 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70649 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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. 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. 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 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70650 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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. becomes subject to a title V permitting program for the first time on the effective date of this Federal plan, then the source must apply for a title V permit within 12 months of the effective date of this Federal plan in order to operate after this date in compliance with Federal law. An application deadline earlier than either of the two dates noted above, i. e., December 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. 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 or is part of a major source, and had commenced operation as of the effective date of the relevant title V permits program, Then a complete title V application which covers the entire source 6 is due not later than 12 months ( or earlier if required by the title V permitting authority) after the effective date of the relevant title V permits program. See CAA section 503( c) and 40 CFR 70.4( b)( 11)( i), 71.4( i)( 1), 70.5( a)( 1)( i) and 71.5( a)( 1)( i).

If a CISWI unit is a major source or is part of a major source, but did not commence operation until after the relevant title V permits program became effective, Then a complete title V application which covers the entire source is due not later than 12 months ( or earlier if required by the title V permitting authority) after the date the source commences operation. See CAA section 503( c) and 40 CFR 70.5( a)( 1)( i) and 71.5( a)( 1)( i).

VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70651 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules If a CISWI unit is a nonmajor source or is part of a nonmajor source, is subject to the CISWI NSPS ( subpart CCCC of 40 CFR part 60), and had commenced operation as of December 1, 2000, Then a complete title V application 7 is due not later than 12 months after subpart CCCC was promulgated, i. e., December 1, 2001 ( or earlier if required by the title V permitting authority). See CAA section 503( c) and 40 CFR 70.5( a)( 1)( i) and 71.5( a)( 1)( i).

If a CISWI unit is a nonmajor source or is part of a nonmajor source, is subject to the CISWI NSPS ( subpart CCCC of 40 CFR part 60), but did not commence operation until after December 1, 2000, Then a complete title V application 7 is due not later than 12 months ( or earlier if required by the title V permitting authority) after the date the source commences operation. See CAA section 503( c) and 40 CFR 70.5( a)( 1)( i) and 71.5( a)( 1)( i).

If a CISWI unit is a nonmajor source or is part of a nonmajor source, and is subject to an EPA approved and effective State or Tribal section 111( d)/ 129 plan, Then a complete title V application is due not later than 12 months ( or earlier if required by the title V permitting authority) after the effective date of the EPA approved State or Tribal section 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 source or is part of a nonmajor source, and is subject to the CISWI Federal plan ( subpart III of 40 CFR part 62), Then a complete title V application is due not later than 12 months ( or earlier if required by the title V permitting authority) after the effective date of 40 CFR part 62, subpart III. See CAA section 503( c) and 40 CFR 70.5( a)( 1)( i) and 71.5( a)( 1)( i). In no event, however, can such an existing CISWI unit submit a complete title V application after December 1, 2003 and have it be considered timely. See CAA section 129( e) and 40 CFR 62.14835 of subpart III.

If a CISWI unit is required to obtain a title V permit due to triggering more than one of the applicability criteria listed above or in 40 CFR 70.3( a) or 71.3( a), Then a complete title V application is due not later than 12 months ( or earlier if required by the title V permitting authority) after the unit triggers the criterion which first 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 or is part of a major source, is subject to the CISWI NSPS ( subpart CCCC of 40 CFR part 60), and is covered by a title V permit with a remaining permit term of 3 or more years on December 1, 2000, Then the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of 40 CFR part 60, subpart CCCC not later than June 1, 2002. See CAA section 502( b)( 9); 40 CFR 70.7( f)( 1)( i) and 71.7( f)( 1)( i).

If a CISWI unit is a major source or is part of a major source, is subject to an EPA approved and effective State or Tribal section 111( d)/ 129 plan for CISWI units, and is covered by a title V permit with a remaining term of 3 or more years on the effective date of the EPA approved section 111( d)/ 129 plan, Then the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of this EPA approved and effective section 111( d)/ 129 plan not later than 18 months after the effective date of this plan. See CAA section 502( b)( 9); 40 CFR 70.7( f)( 1)( i) and 71.7( f)( 1)( i).

If a CISWI unit is a major source or is part of a major source, is subject to the CISWI Federal plan ( supbart III of 40 CFR part 62), and is covered by a title V permit with a remaining permit term of 3 or more years on the effective date of this Federal plan, Then the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of subpart III of 40 CFR part 62 not later than 18 months after the effective date of the CISWI Federal plan. See CAA section 502( b)( 9); 40 CFR 70.7( f)( 1)( i) and 71.7( f)( 1)( i).

Updating Existing Title V Permit Applications If a CISWI unit is subject to the CISWI NSPS ( subpart CCCC of 40 CFR part 60), but first became subject to title V permitting prior to the promulgation of this NSPS, and the owner or operator of the unit has submitted a timely and complete title V permit application, but the draft title V permit has not yet been released by the permitting authority, Then the owner or operator must supplement the title V application by including the applicable requirements of 40 CFR part 60, subpart CCCC in accordance with 40 CFR 70.5( b) or 71.5( b).

If a CISWI unit is subject to an EPA approved and effective State or Tribal section 111( d)/ 129 plan for CISWI units, but first became subject to title V permitting prior to the effective date of the section 111( d)/ 129 plan, and the owner or operator of the unit has submitted a timely and complete title V permit application, but the draft title V permit has not yet been released by the permitting authority, Then the owner or operator must supplement the title V application by including the applicable requirements of the approved and effective section 111( d)/ 129 plan in accordance with 40 CFR 70.5( b) or 71.5( b).

VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70652 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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. 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. 11 If the Administrator chooses to retain certain authorities under a standard, those authorities cannot be delegated, e. g., alternative methods of demonstrating compliance. 12 The EPA interprets the phrase `` assure compliance'' in section 502( b)( 5)( A) to mean that permitting authorities will implement and enforce If a CISWI unit is subject to the CISWI Federal plan ( subpart III of 40 CFR part 62), but first became subject to title V permitting prior to the effective date of this Federal plan, and the owner or operator of the unit has submitted a timely and complete title V permit application, but the draft title V permit has not yet been released by the permitting authority, Then the owner or operator must supplement the title V application by including the applicable requirements of 40 CFR part 62, subpart III in accordance with 40 CFR 70.5( b) or 71.5( b).

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). 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. 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. 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70653 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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). 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. 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. 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. 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70654 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 EPAapproved 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 combustionrelated 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 VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70655 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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 costeffective 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.

VerDate 0ct< 31> 2002 18: 05 Nov 22, 2002 Jkt 200001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 25NOP2. SGM 25NOP2 70656 Federal Register / Vol. 67, No. 227 / Monday, November 25, 2002 / Proposed Rules 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.

Affected entity Total hours Labor costs Capital 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.