[Federal Register: December 18, 2006 (Volume 71, Number 242)]
[Proposed Rules]
[Page 75815-75845]
[DOCID:fr18de06-21]

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Part II

Environmental Protection Agency

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40 CFR Part 62

Federal Plan Requirements for Other Solid Waste Incineration Units
Constructed on or Before December 9, 2004; Proposed Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-HQ-OAR-2006-0364; FRL-8254-9]
RIN 2060-AN43

Federal Plan Requirements for Other Solid Waste Incineration
Units Constructed on or Before December 9, 2004

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On December 16, 2005, the EPA promulgated emission guidelines
(EG) for existing ``other'' solid waste incineration (OSWI) units.
Sections 111 and 129 of the Clean Air Act (CAA) require States with
existing OSWI units subject to the EG to submit plans to the 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 EG in Indian country. State plans are due from States with
OSWI units subject to the EG on December 16, 2006. If a State or Tribe
with existing OSWI units does not submit an approvable plan, sections
111(d) and 129 of the CAA require the EPA to develop, implement, and
enforce a Federal plan for OSWI units located in that State or Tribal
area within 2 years after promulgation of the EG (December 16, 2007).
This action proposes a Federal plan to implement EG for OSWI 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 OSWI units covered by the State
or Tribal plan.

DATES: Comments must be received on or before February 16, 2007.
    Public Hearing. If anyone contacts EPA by January 8, 2007
requesting to speak at a public hearing, EPA will hold a public hearing
on January 22, 2007. If you are interested in attending the public
hearing, contact Ms. Dorothy Apple at<PHONE_NUMBER> to verify that a
hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0364, by one of the following methods:
    Web site: http://www.regulations.gov. Follow the on-line

instructions for submitting comments.
    E-mail: Send your comments via electronic mail to
<EMAIL_ADDRESS>Attention: Docket ID No. EPA-HQ-OAR-2006-0364.

    Mail: Send your comments to: EPA Docket Center (EPA/DC),
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-
2006-0364. Please include a total of two copies. The EPA requests a
separate copy also be sent to the contact person identified below (see
FOR FURTHER INFORMATION CONTACT).
    Hand Delivery: EPA Docket Center (EPA/DC), EPA West Building, Room
B108, 1301 Constitution Ave., NW., Washington, DC, 20460, Attention
Docket ID No. EPA-HQ-OAR-2006-0364. Such deliveries are accepted only
during the normal hours of operation (8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays), and special arrangements
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0364. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site

is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be

automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment with any disk
or CD-ROM you submit. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses.
    Public Hearing: If a public hearing is held, it will be held at
EPA's Campus located at 109 T.W. Alexander Drive in Research Triangle
Park, NC, or an alternate site nearby.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically at http://www.regulations.gov
 or in hard copy at the EPA Docket Center (EPA/DC),

EPA West Building, Room B102, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER>, and the telephone number for the
EPA Docket Center is<PHONE_NUMBER>.

    Note: The EPA Docket Center suffered damage due to flooding
during the last week of June 2006. The Docket Center is continuing
to operate. However, during the cleanup, there will be temporary
changes to Docket Center telephone numbers, addresses, and hours of
operation for people who wish to make hand deliveries or visit the
Public Reading Room to view documents. Consult EPA's Federal
Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at
http://www.epa.gov/epahome/dockets.htm for current information on

docket operations, locations, and telephone numbers. The Docket
Center's mailing address for U.S. mail and the procedure for
submitting comments to http://www.regulations.gov are not affected by the

flooding and will remain the same.

FOR FURTHER INFORMATION CONTACT: For information concerning specific
aspects of this proposal, contact Ms. Martha Smith, Natural Resources
and Commerce Group, Sector Policies and Programs Division (E143-03),
U.S. EPA, Research Triangle Park, North Carolina 27711; telephone
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>For
technical information, contact Ms. Mary Johnson, Energy Strategies
Group, Sector Policies Program Division (D243-01), U.S. EPA, Research
Triangle Park, NC 27711; telephone number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Organization of This Document. The following
outline is provided to aid in locating information in this preamble.

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for EPA?
II. Background Information
    A. What is the regulatory development background for this
proposed rule?
    B. What associated regulatory activity preceded this proposed
rule?

    C. What impact does the EPA's granting of a request for
reconsideration have on this Federal plan?
III. Affected Facilities
    A. What is an OSWI unit?
    B. Does the Federal plan apply to me?
    C. How do I determine if my OSWI unit is covered by an approved
and effective State or Tribal plan?
IV. Elements of the OSWI Federal Plan
    A. Legal Authority and Enforcement Mechanism
    B. Inventory of Affected OSWI 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
V. Summary of OSWI Federal Plan
    A. Might the proposed rules apply to me?
    B. What emission limitations would apply?
    C. What operating limits would apply?
    D. What would be the requirements for OSWI air curtain
incinerators?
    E. What other requirements would apply?
    F. What is the proposed compliance schedule?
    G. How did EPA determine the compliance schedule?
VI. OSWI That Have or Will Shut Down
    A. Units That Plan To Close Rather Than Comply
    B. Inoperable Units
    C. OSWI Units That Have Shut Down
VII. 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. OSWI Federal Plan and Indian Country
VIII. Title V Operating Permits
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act

I. General Information

A. Does this action apply to me?

    Categories and entities potentially regulated by the proposed rules
are very small municipal waste combustion (VSMWC) units and
institutional waste incineration (IWI) units. The OSWI Federal plan
would affect the following categories of sources:

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                                                                             Examples of potentially regulated
                    Category                           NAICS* code                       entities
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Any State, local, or Tribal Government using a             562213, 92411  Solid waste combustion units burning
 VSMWC unit as defined in the regulations.                                 municipal waste collected from the
                                                                           general public and from residential,
                                                                           commercial, institutional, and
                                                                           industrial sources.
Institutions using an IWI unit as defined in        922, 6111, 623, 7121  Correctional institutions, primary and
 the regulations.                                                          secondary schools, camps and national
                                                                           parks.
Any Federal Government Agency using an OSWI                          928  Department of Defense (labs, military
 unit as defined in the regulations.                                       bases, munitions facilities).
Any college or university using an OSWI unit as               6113, 6112  Universities, colleges and community
 defined in the regulations.                                               colleges.
Any church or convent using an OSWI unit as                         8131  Churches and convents.
 defined in the regulations.
Any civic or religious organization using an                        8134  Civic associations and fraternal
 OSWI unit as defined in the regulations.                                  associations.
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* North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by the
proposed rules. To determine whether your facility would be regulated
by the proposed rules, you should examine the applicability criteria in
CAA sections 62.15460 through 62.15500 of the proposed Federal plan. If
you have any questions regarding the applicability of the proposed
rules to a particular entity, contact either of the persons listed in
the preceding FOR FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit information that you consider to
be CBI electronically through http://www.regulations.gov or e-mail. Send or

deliver information identified as CBI to only the following address:
Mr. Roberto Morales, c/o OAQPS Document Control Officer (Mail Drop
C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket
ID No. EPA-HQ-OAR-2006-0364. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information marked as CBI will not be disclosed except in accordance
with procedures set forth in 40 CFR part 2.
    If you have any questions about CBI or the procedures for claiming
CBI, please consult either of the persons identified in the FOR FURTHER
INFORMATION CONTACT section.
    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
    a. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
    b. Follow directions. The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    f. Provide specific examples to illustrate your concerns, and
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.

    h. Make sure to submit your comments by the comment period deadline
identified.
    Docket. The docket number for the proposed Federal plan (40 CFR
part 620, subpart KKK) is Docket ID No. EPA-HQ-OAR-2005-0364.
    Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of the proposed rules is available on the WWW
through the Technology Transfer Network Website (TTN Web). Following
signature, EPA will post a copy of the proposed rules on the TTN's
policy and guidance page for newly proposed or promulgated rules at
http://www.epa.gov/ttn/oarpg. The TTN provides information and

technology exchange in various areas of air pollution control.

II. 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, among other things, unspecified ``other categories of solid waste
incineration units'', herein referenced as OSWI units. The EPA proposed
emission guidelines for OSWI units on December 9, 2004, and promulgated
them on December 16, 2005 (70 FR 74870), to be codified at 40 CFR part
60, subpart FFFF. In writing Section 129 of the CAA, Congress looked
first to the States as the preferred implementers of emission
guidelines for existing OSWI units. To make these emission guidelines
enforceable, States with existing OSWI units must have submitted to EPA
within one year following promulgation of the emission guidelines (by
December 16, 2006) 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 16, 2007). 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 OSWI units are required to submit to the Administrator a
letter of negative declaration certifying that there are no OSWI units
in the State. No plan is required for States that do not have any OSWI
units.
    As discussed in section VII.E of this preamble, Indian Tribes may,
but are not required to, submit Tribal plans to cover OSWI units in
Indian country. A Tribe may submit to the Administrator a letter of
negative declaration certifying that no OSWI units are located in the
Tribal area. No plan is required for Tribes that do not have any OSWI
units. OSWI 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 becomes approved and effective
covering those OSWI units.
    This action proposes a Federal plan for OSWI units that are not
covered by an approved State or Tribal plan as of December 16, 2006.
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
OSWI units located in States that do not have an approved plan within
two years after promulgation of the emission guidelines (by December
16, 2007, for OSWI 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 OSWI 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 associated regulatory activity preceded this proposed rule?

    Regulations have been developed for each of the listed categories
of solid waste incineration unit except for the ``other categories of
solid waste incineration units.'' This notice proposes regulations for
these ``other'' (or OSWI) units. Several previous notices have been
published regarding OSWI regulatory development (58 FR 31358, June 2,
1993; 58 FR 58498, November 2, 1993; 65 FR 67367, November 9, 2000). In
the November 9, 2000 notice, EPA revised the OSWI regulatory schedule
to promulgate regulations by November 2005. This was subsequently
incorporated into a consent decree, requiring that EPA propose
regulations for the OSWI source category by November 30, 2004, and
promulgate by November 30, 2005. We proposed regulations on December 9,
2004. On December 16, 2005, we promulgated EG for OSWI constructed on
or before December 9, 2004 (70 FR 74870), which are to be implemented
via today's proposed rulemaking.

C. What impact does the EPA's granting of a request for reconsideration
have on this Federal plan?

    On February 14, 2006, subsequent to EPA's promulgation of the final
rule establishing the New Source Performance Standards (NSPS) and the
Emission Guidelines (EG) for OSWI units, the Sierra Club filed a
petition for reconsideration, pursuant to section 307(d)(7)(B) of the
CAA.\1\ On June 28, 2006 (71 FR 36726-36730), EPA granted
reconsideration of one issue raised by the Sierra Club. In granting
reconsideration on this issue, EPA agreed to undertake further notice
and comment proceedings related to whether sewage sludge incinerators
should be regulated under CAA section 129.\2\ EPA's granting
reconsideration on an issue does not stay, vacate or otherwise
influence the effective date of the OSWI regulations. Specifically, CAA
section 307(d)(7)(B) provides that ``reconsideration shall not postpone
the effectiveness of the rule,'' except that ``the 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 OSWI regulations in connection with the reconsideration petition.
Because the existing OSWI regulations remain in effect, EPA's
obligation under CAA section 129(b)(3) 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.\3\ Therefore,
EPA is complying with its statutory obligations by issuing today's
proposed Federal Plan for OSWI units.
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    \1\ The Sierra Club also filed a petition for review in the D.C.
Circuit, challenging the final OSWI rule. Sierra Club v. EPA, No.
06-1066 (D.C. Cir.). That case is being held in abeyance while EPA
undertakes its reconsideration proceeding.
    \2\ EPA will respond to other issues raised in the petition for
reconsideration no later than when it takes final action on the
sewage sludge issue, which EPA expects to be no later than January
2007.
    \3\ Similarly, the obligations of States and sources are
unaffected by EPA's reconsidering one issue.
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    If, after reconsidering any issues raised in the petition for
reconsideration, EPA revises the OSWI rules, EPA plans to make
corresponding changes to the final Federal Plan. Thus, by this notice,
we are informing the public that EPA is reconsidering this same issue
(e.g., involving sewage sludge incinerators) as it pertains to the OSWI
Federal Plan as well, and if the Federal Plan is finalized after EPA
final action on reconsideration, it too will reflect EPA's final
decision on the issue.

III. Affected Facilities

A. What is an OSWI unit?

    The term OSWI unit means either a very small municipal waste
combustion unit or an institutional waste incineration unit, as defined
in proposed 40 CFR part 62, subpart KKK. Seventeen types of combustion
units, which are listed in CAA section 62.15845 of proposed subpart KKK
are conditionally exempt from specific provisions of the proposed
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 an OSWI unit, including any OSWI air curtain incinerator
(ACI), not covered by an approved and effective State or Tribal plan as
of the date of promulgation of the Federal plan. The Federal plan
proposed herein would cover your OSWI unit until EPA should approve a
State or Tribal plan that would cover your OSWI unit and that plan
should become effective.
    If you began the construction of your OSWI unit on or before
December 9, 2004, it is considered an existing OSWI unit and could be
subject to the Federal plan. If you began the construction of your OSWI
unit after December 9, 2004, it is considered a new OSWI unit and is
subject to the new source performance standards (NSPS). If you began
reconstruction or modification of your OSWI unit prior to June 16,
2006, it is considered an existing OSWI unit and could be subject to
the Federal plan. Likewise, if you began reconstruction or modification
of your OSWI unit on or after June 16, 2006, it is considered a new
OSWI unit and is subject to the NSPS.
    Your existing OSWI 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 CAA sections 62.15460 through 62.15500 of proposed
subpart KKK.
    Once an approved State or Tribal plan is in effect, the Federal
plan will no longer apply to an OSWI 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 an OSWI Federal plan will not preclude
States or Tribes from submitting a plan. If a State or Tribe submits a
plan after promulgation of the OSWI 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 OSWI
units covered by the State or Tribal plan as of the effective date of
the State or Tribal plan. If an OSWI unit were overlooked by a State or
Tribe and the State or Tribe submitted a negative declaration letter,
or if an individual OSWI unit were not covered by an approved and
effective State or Tribal plan, the OSWI unit would be subject to this
Federal plan.

C. How do I determine if my OSWI 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 sections 111(d) and section 129 State
or Tribal plans for designated facilities in each State or area of
Indian Country. However, 40 CFR part 62 is updated once per year. Thus,
if 40 CFR 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 to
determine if approval occurred since publication of the most recent
version of 40 CFR part 62.

                                         EPA Regional Contacts for OSWI
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               Region                          Contact                   Phone/fax         States and protectors
----------------------------------------------------------------------------------------------------------------
I..................................  EPA New England, Director,<PHONE_NUMBER>, 617-918-  CT, ME, MA, NH, RI,
                                      Air Compliance Program, 1    1505 (fax).             VT.
                                      Congress Street, Suite
                                      1100 (SEA), Boston, MA
                                      02114-2023.
II.................................  U.S. EPA Region 2, Air<PHONE_NUMBER>, 212-637-  NJ, NY, Puerto Rico,
                                      Compliance Branch, 290       3998 (fax).             Virgin Islands.
                                      Broadway, New York, NY
                                      10007.
III................................  U.S. EPA Region 3, Chief,<PHONE_NUMBER>, 215-814-  DE, DC, MD, PA, VA,
                                      Air Enforcement Branch       2134 (fax).             WV.
                                      (3AP12), 1650 Arch Street,
                                      Philadelphia, PA 19103-
                                      2029.
IV.................................  U.S. EPA Region 4, Air and<PHONE_NUMBER>, 404-562-  AL, FL, GA, KY, MS,
                                      Radiation Technology         9095 (fax).             NC, SC, TN.
                                      Branch, Atlanta Federal
                                      Center, 61 Forsyth Street,
                                      Atlanta, GA 30303-3104.
V..................................  U.S. EPA Region 5, Air<PHONE_NUMBER>, 312-353-  IL, IN, MN, OH, WI.
                                      Enforcement and Compliance   2018 (fax).
                                      Assurance Branch (AR-18J),
                                      77 West Jackson Boulevard,
                                      Chicago, IL 60604-3590.
VI.................................  U.S. EPA Region 6, Chief,<PHONE_NUMBER>, 214-665-  AR, LA, NM, OK, TX.
                                      Toxics Enforcement Section   7446 (fax).
                                      (6EN-AT), 1445 Ross
                                      Avenue, Dallas, TX 75202-
                                      2733.
VII................................  U.S. EPA Region 7, Air<PHONE_NUMBER>, 913-551-  IA, KS, MO, NE.
                                      Permitting and Compliance    7844 (fax).
                                      Branch (ARTD/APCO-2119F),
                                      901 N. 5th Street, Kansas
                                      City, KS 66101.
VIII...............................  U.S. EPA Region 8, Air and<PHONE_NUMBER>, 303-312-  CO, MT, ND, SD, UT,
                                      Radiation Program Air        6064 (fax).             WY.
                                      Technical Assistance Unit
                                      (Mail Code 8P--AR), 999
                                      18th Street, Suite 200,
                                      Denver, CO 80202.
IX.................................  U.S. EPA Region 9, Air<PHONE_NUMBER>, 415-744-  AZ, CA, HI, NV,
                                      Division, 75 Hawthorne       1076 (fax).             American Samoa, Guam.
                                      Street, San Francisco, CA
                                      94105.
X..................................  U.S. EPA Region 10, Office<PHONE_NUMBER>, 206-553-  AK, ID, OR, WA.
                                      of Air Quality, 1200 Sixth   0110 (fax).
                                      Avenue, Seattle, WA 98101.
----------------------------------------------------------------------------------------------------------------

IV. Elements of the OSWI Federal Plan

    Because EPA is proposing a Federal plan to cover OSWI 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 OSWI 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 OSWI
Federal plan. The table below lists each element and identifies where
it is located or codified.

                    Elements of the OSWI Federal Plan
------------------------------------------------------------------------

------------------------------------------------------------------------
Legal authority and enforcement          Sections 129(b)(3) 111(d),
 mechanism.                               301(a), and 301(d)(4) of the
                                          CAA.
Inventory of Affected MWC Units........  Docket EPA-HQ-OAR-2003-0156.
Inventory of Emissions.................  Docket EPA-HQ-OAR-2003-0156.
Emission Limits........................  40 CFR 62.15575-62.15605.
Compliance Schedules...................  40 CFR 62.15505-62.15515.
Operator Training and Qualification....  40 CFR 62.15535-62.15570.
Waste Management Plan..................  40 CFR 62.15520-62.15530.
Record of Public Hearings..............  Docket EPA-HQ-OAR-2003-0156.
Testing, Monitoring, Recordkeeping, and  40 CFR 62.15610, 40 CFR 15665-
 Reporting.                               62.15710, 40 CFR 62.15715-
                                          62.15780.
Progress Reports.......................  Section IV.J. of this preamble.
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A. Legal Authority and Enforcement Mechanism

1. EPA's Legal Authority in States
    Section 301(a) of the CAA provides EPA with broad authority to
write regulations that carry out the functions of the CAA. Sections
111(d) and 129(b)(3) of the CAA direct EPA to develop a Federal plan
for States that do not submit approvable State plans. Sections 111 and
129 of the CAA provide EPA with the authority to implement and enforce
the Federal plan in cases where the State fails to submit a
satisfactory State plan. CAA 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 16, 2007).
Compliance with the emission guidelines cannot be later than 5 years
after the relevant emission guidelines are promulgated (by December 16,
2010 for OSWI units).
2. EPA's Legal Authority in Indian Country
    Section 301 of the CAA provides EPA with the authority to
administer Federal programs in Indian country. See CAA 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 VII.E of this preamble for a more detailed
discussion of EPA's authority to administer the OSWI Federal plan in
Indian country.
    The EPA is proposing this Federal regulation under the legal
authority of 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 VII 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 OSWI Units

    The proposed Federal plan includes an inventory of OSWI units
affected by the emission guidelines. (See 40 CFR part 60.25(a).) Docket
No. EPA-HQ-OAR-2003-0156 contains an inventory of the OSWI units that
may potentially be covered by this proposed Federal plan in the absence
of State or Tribal plans. This inventory contains 248 OSWI units in 26
States. It is based on information collected from State and Federal
databases, information collection request survey responses, and
stakeholder meetings during the development of the OSWI 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 OSWI units listed in the inventory
memorandum in Docket No. EPA-HQ-OAR-2003-0156. Any OSWI 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 OSWI
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 OSWI 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
OSWI units, emission factors, and typical emission rates developed for
calculating nationwide air impacts of the OSWI emission guidelines and
the Federal plan. Refer to the inventory memorandum in Docket No. EPA-
HQ-OAR-2003-0156 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 OSWI Federal plan
are the same as those contained in the EG. Section V of this preamble
discusses the emission limitations and operating limits. The EG
promulgated December 16, 2005, had a technical error which is being
corrected through a technical amendment. Due to the uncertainty of the
publication date for the amendment, the technical error will not appear
in the proposal of this Federal plan. The correct opacity measurement
averaging time appears in

this proposal. This possible discrepancy between the EG and Federal
Plan is in Table 2 of the rule in the EG and Table 1 of the rule in the
Federal Plan.

E. Compliance Schedules

    Typically, State or Federal plans include increments of progress
for units that need more than one year from State plan approval to
comply, or in the case of the Federal plan, more than one year after
promulgation of the final Federal plan. (See 40 CFR part 60.24(e)(1).)
The purpose of increments of progress is to ensure that each affected
unit needing more time to comply is making progress toward meeting the
emission limits.
    Section 129(f) of the CAA specifies the dates by which affected
facilities must comply with EG. Existing units must be in compliance
with the guidelines as expeditiously as practicable after approval of a
State plan, but no later than three years after the effective date of
State plan approval or five years after promulgation of the guidelines,
whichever is earlier. To proceed in an expeditious manner, we are
proposing to implement the EG within that same time frame.
    For the EG, we are incorporating the full compliance time allowed
by CAA section and to include final compliance as the sole increment of
progress. The OSWI units are small and are located at small
municipalities and institutions that do not always have full-time
environmental staff. They will need time to investigate the regulatory,
technical, cost, financing, and economic implications of control
techniques and alternative waste disposal options available to their
facility. The EPA wants to allow sufficient time for owners and
operators of OSWI units to investigate, plan, and carry out activities
for compliance or, as expected in most cases, a closure of their waste
combustion units and an orderly transition to the use of alternative
waste disposal methods. Our compliance schedule was developed to allow
small sources maximum flexibility in accomplishing final compliance by
a date 3 years after publication of a final rule for the Federal plan.

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 sixty days after the initial
performance test. This date is 240 days after the final compliance
date.

G. Testing, Monitoring, Recordkeeping, and Reporting

    The proposed Federal plan includes testing, monitoring,
recordkeeping, and reporting requirements. (See 40 CFR part 60.25).)
Testing, monitoring, recordkeeping, and reporting requirements are
consistent with 40 CFR part 60 subpart FFFF, 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. CAA sections
62.15535 through 62.15570 of the proposed subpart KKK 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 part 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
No. EPA-HQ-OAR-2006-0364. 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 OSWI 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.
    Each progress report must include the following items: (1) Status
of enforcement actions; (2) status of increments of progress; (3)
identification 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.

V. Summary of OSWI Federal Plan

A. Might the proposed rules apply to me?

    The proposed OSWI Federal rules could apply to you if you own or
operate either of the following at a location not subject to an
approved State or Tribal plan:
    (1) An incineration unit with a capacity less than 35 tpd burning
municipal solid waste (MSW) (as defined in CAA sections 129 and
62.15850 of 40 CFR part 62 subpart KKK); or
    (2) An incineration unit located at an institutional facility
burning institutional waste (as defined in CAA section 62.15850 of 40
CFR part 62 subpart KKK) generated at that facility.
    Requirements for air curtain incineration units that would
otherwise be VSMWC or IWI units, but for the fact that they burn
certain materials, are discussed later in this preamble. If your
incineration unit is currently meeting emission limitations and other
requirements of another CAA section 129 regulation (i.e., small or
large municipal waste combustion (MWC) units; hospital, medical,
infectious waste incineration (HMIWI) units; or commercial and
industrial solid waste incineration (CISWI) units), the proposed OSWI
rules would not apply to you. Likewise, if an institutional combustion
unit is covered under the CAA section 112 national emission standards
for hazardous air pollutants (NESHAP) for industrial, commercial, and
institutional boilers and process heaters (boilers NESHAP), it would
not be subject to the proposed OSWI rules. Certain types of combustion
units listed in CAA section 62.15485 of 40 CFR part 62 subpart KKK also
would be excluded from the final OSWI rules.
    If you began construction of your incineration unit on or before
December 9, 2004, it is considered an existing unit and would be
subject to the proposed Federal plan. If you began construction of your
incineration unit after December 9, 2004, it is considered a new unit
and is subject to the NSPS (40 CFR part 60, subpart EEEE). If you began
reconstruction or modification of your incineration unit prior to June
16, 2006, it would be considered an existing unit and subject to the
Federal plan. Likewise, if you begin reconstruction or modification of
your incineration unit on or after June 16, 2006, it is

considered a new unit and is subject to the NSPS.

B. What emission limitations would apply?

    As the owner or operator of an existing OSWI unit, you would be
required to meet the proposed emission limitations as specified in the
table below. See CAA section V.F of this preamble for a discussion of
the compliance schedule.

                 Emission Limits for Existing OSWI Units
------------------------------------------------------------------------
                                                          And determine
                                 You must meet  these   compliance using
     For these pollutants        emission  limits \a\     these methods
                                                             \b\ \c\
------------------------------------------------------------------------
Cd............................  18 micrograms per dry   EPA Method 29.
                                 standard cubic meter
                                 ([mu]g/dscm).
CO............................  40.0 parts per million  EPA Methods 10,
                                 dry volume (ppmdv).     10A or 10B.
Dioxins/Furans (total mass      33 nanograms per dry    EPA Method 23.
 basis).                         standard cubic meter
                                 (ng/dscm).
HCl...........................  15.0 ppmdv............  EPA Method 26A.
Pb............................  226 [mu]g/dscm........  EPA Method 29.
Hg............................  74 [mu]g/dscm.........  EPA Method 29.
Opacity.......................  10%...................  EPA Method 9.
NOX...........................  103 ppmdv.............  EPA Methods 7,
                                                         7A, 7C, 7D, or
                                                         7E.\d\
PM............................  0.013 grains per dry    EPA Method 5 or
                                 standard cubic foot     29.
                                 (gr/dscf).
SO2...........................  3.1 ppmdv.............  EPA Method 6 or
                                                         6C .\e\
------------------------------------------------------------------------
\a\ All emission limits (except opacity) are measured at 7 percent
  oxygen, dry basis at standard conditions.
\b\ These methods are in 40 CFR part 60, appendix A.
\c\ Compliance with the CO emission limit is determined on a 12-hour
  rolling average basis using continuous emission monitoring system
  data. Compliance for the other pollutants' emission limits is
  determined by stack testing.
\d\ ASME PTC 19-10-1981--Part 10 is an acceptable alternative to only
  Methods 7 and 7C.
\e\ ASME PTC 19-10-1981--Part 10 is an acceptable alternative to only
  Method 6.

C. What operating limits would apply?

    If you use a wet scrubber to comply with the emission limits, you
would be required to establish the maximum and minimum site-specific
operating limits indicated in Table 1 of this preamble. You would then
be required to operate the OSWI unit so that the charge rate does not
exceed the established maximum charge rate. You would be required to
operate the wet scrubber so that the pressure drop or amperage,
scrubber liquor flow rate, and scrubber liquor pH do not fall below the
minimum established operating limits.

 Table 1.--Operating Limits for Existing OSWI Units Using Wet Scrubbers
------------------------------------------------------------------------
                                                         And monitor
     For these operating       You must establish    continuously  using
         parameters              these operating       these recording
                                     limits                 times
------------------------------------------------------------------------
Charge rate.................  Maximum charge rate.  Every hour.
Pressure drop across the wet  Minimum pressure      Every 15 minutes.
 scrubber, or amperage to      drop or amperage.
 the wet scrubber.
Scrubber liquor flow rate...  Minimum flow rate...  Every 15 minutes.
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 24-hour basis.

    If you use an air pollution control device other than a wet
scrubber to comply with the emission limits, you would be required to
petition the EPA for approval of other site-specific operating limits
to be established during the initial performance test and continuously
monitored thereafter. The information you must include in your petition
is described in 40 CFR 62.15595 of proposed subpart KKK.

D. What would be the requirements for OSWI air curtain incinerators?

    The final OSWI rules establish opacity limitations for air curtain
incineration units that would otherwise meet the definitions of IWI or
VSMWC units, but burn only:
     100 percent wood wastes;
     100 percent clean lumber;
     100 percent yard waste; or
     100 percent mixture of only wood waste, clean lumber, and/
or yard waste.
    The opacity limit is 10 percent. However, 35 percent opacity is
allowed during startup periods that are within the first 30 minutes of
operation. Air curtain incinerators burning only these materials must
meet the opacity limits and certain monitoring, recordkeeping, and
reporting requirements, and must apply for and obtain a title V
operating permit.
    Air curtain incinerators burning other institutional waste or
municipal waste must meet the requirements of the final OSWI rules
including all emission limits in table 1 of this preamble and the
associated testing, permitting, monitoring, recordkeeping, and
reporting requirements.

E. What other requirements would apply?

    As the owner or operator of an OSWI unit, you would be required to
meet the following additional requirements.
    Waste Management Plan:
     Submit 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.
    Operator Training and Qualification Requirements:
     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.
    Testing Requirements:
     Conduct initial performance tests for Cd, CO, dioxins/
furans, HCl, Pb, Hg, NOX, opacity, PM, and SO2
and

establish operating limits (i.e., maximum or minimum values for
operating parameters).
     Conduct annual performance tests for all nine pollutants
and opacity. (An owner or operator may conduct less frequent testing if
the facility demonstrates that it is in compliance with the emission
limits for three consecutive performance tests).
    Monitoring Requirements:
     Continuously monitor CO emissions.
     If using a wet scrubber to comply with the emission
limits, continuously monitor the following operating parameters: charge
rate, pressure drop across the wet scrubber (or amperage), and scrubber
liquid flow rate and pH.
     If using something other than a wet scrubber to comply
with the emission limits, monitor other operating parameters, as
approved by the EPA.
    Recordkeeping and Reporting Requirements:
     Maintain for 5 years records of the initial performance
tests and all subsequent performance tests, operating parameters, any
maintenance, the siting analysis (for new units only), and operator
training and qualification. Each record must be kept on site for at
least 2 years. The records may be kept off site for the remaining 3
years.
     Submit the results of the initial performance tests and
all subsequent performance tests and values for the operating
parameters.
     Submit annual compliance reports and semiannual reports of
any deviations from the emission limits, operating limits, or other
requirements.
     Apply for and obtain a title V operating permit.

F. What is the proposed compliance schedule?

    Each incineration unit will be required to reach final compliance
by the date 3 years after publication of the final rule in the Federal
Register. In addition, the owner or operator will need to 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 OSWI unit reaches final
compliance.
    To achieve final compliance, the owner or operator of each OSWI
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 OSWI unit is brought on line all necessary
process changes or air pollution control equipment will operate as
designed.

G. How did EPA determine the compliance schedule?

    Section 129(f) of the CAA specifies the dates by which affected
facilities must comply with the EG. Existing units must be in
compliance with the guidelines as expeditiously as practicable after
approval of a State plan, but no later than three years after the
effective date of State plan approval or five years after promulgation
of the guidelines, whichever is earlier.
    EPA chose to include the full compliance time allowed by CAA
section 129 in the EG and proposes to do the same in the proposed
Federal plan for OSWI units. The OSWI units are small and are located
at small municipalities and institutions that do not always have full-
time environmental staff. They will need time to investigate the
regulatory, technical, cost, financing, and economic implications of
control techniques and alternative waste disposal options available to
their facility. The EPA wants to allow sufficient time for owners and
operators of OSWI units to investigate, plan, and carry out activities
for compliance or, as expected in most cases, a closure of their waste
combustion units and an orderly transition to the use of alternative
waste disposal methods.

VI. OSWI That Have or Will Shut Down

A. Units That Plan To Close Rather Than Comply

    If you plan to permanently close your currently operating
incineration unit, you must do so by the date three years after
publication of the final rule for this Federal plan in the Federal
Register. If you close your OSWI unit after the date one year after
publication of the final rule in the Federal Register, but before the
date three 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 one 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 an OSWI unit has already shut down, has been
rendered inoperable, and does not intend to restart, the OSWI unit may
be left off the source inventory in a State, Tribal, or this Federal
plan. An OSWI unit that has been rendered inoperable would not be
covered by the Federal plan. The OSWI owner or operator may do the
following to render an OSWI 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. OSWI Units That Have Shut Down

    OSWI units that are known to have already shut down (but are not
known to be inoperable) are included in the source inventory for the
proposed Federal plan and will be 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 incineration unit plans to
restart before the final compliance date, the owner or operator must
meet any requirements for operator training or obtaining title V
operating permits that apply to units planning to meet the final
compliance date.
2. Restarting After the Final Compliance Date
    Before restarting, such OSWI 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 30 days after restarting. An incineration unit that
operates out of compliance after the final compliance date would be in
violation of the Federal plan and subject to enforcement action.

VII. 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 enforceable once
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
OSWI 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 OSWI 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 the intent of Congress.
    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.
    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. The letter requesting delegation of
authority to implement the Federal plan must demonstrate that the State
or Tribe has adequate resources, as well as the legal and enforcement
authority to administer and enforce the program. A memorandum of
agreement between the State or Tribe and EPA 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 of authority into the appropriate subpart
of 40 CFR part 62.
    If authority is not delegated to a State or Indian Tribe, EPA will
implement 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:
    The following authorities are withheld by the EPA Administrator and
not transferred to the State or Tribe:
    (1) Approval of alternatives to the emission limitations in Table 1
of the proposed rule and operating limits established under 40 CFR
62.15585 and Table 2 of the proposed rule.
    (2) Approval of petitions for specific operating limits in 40 CFR
62.15595 the proposed rule.
    (3) Approval of major alternatives to test methods.
    (4) Approval of major alternatives to monitoring.
    (5) Approval of major alternatives to recordkeeping and reporting.
    (6) The status report requirements in 40 CFR 62.15570(c)(2) the
proposed rule.

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 OSWI 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 OSWI
units covered in the State or Tribal plan would remain subject to the
Federal plan until a State or Tribal plan covering those OSWI units is
approved and effective.
    Upon the effective date of an approved State or Tribal plan, the
Federal plan would no longer apply to OSWI 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
    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, OSWI inspections, and preparation of draft notices of
violation, but will not include any retained authorities.
    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 delegated authority within the Agency to the EPA Regional
Administrators to implement the OSWI Federal plan. All reports required
by this Federal plan should be submitted to the appropriate Regional
Office Administrator.

E. OSWI 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 OSWI Federal plan would apply throughout Indian country to
ensure that there is not a regulatory gap for existing OSWI 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 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 OSWI 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 part 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 part 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 OSWI 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).)

VIII. Title V Operating Permits

    All existing OSWI units and air curtain incinerators to be
regulated by the proposed OSWI Federal plan will have to apply for and
obtain a title V operating permit. These title V operating permits
assure compliance with all applicable Federal requirements for
regulated incineration units, including all applicable CAA section 129
requirements. (See 40 CFR 70.6(a)(1), 40 CFR 70.2, 40 CFR 71.6(a)(1),
and 40 CFR 71.2.)
    The permit application deadline for a CAA section 129 source
applying for a title V operating permit depends on when the source
first becomes subject to the relevant title V permits program. If your
existing incineration unit is not subject to an earlier permit
application deadline, a complete title V permit application must be
submitted by the earlier of the following dates:
    (1) 12 months after the effective date of any applicable EPA-
approved CAA section 111(d)/129 plan (i.e., an approved State or Tribal
plan that implements the OSWI emission guidelines);
    (2) 12 months after the effective date of any applicable Federal
plan; or
    (3) December 16, 2008.
    For any existing incineration unit not subject to an earlier permit
application deadline, the application deadline of 36 months after the
promulgation of 40 CFR part 60, subpart FFFF, applies regardless of
whether or when any applicable Federal plan is effective, or whether or
when any applicable CAA section 111(d)/129 plan is approved by EPA and
becomes effective. (See CAA sections 129(e), 503(c), 503(d), and 502(a)
and 40 CFR parts70.5(a)(1)(i) and 40 CFR 71.5(a)(1)(i).)
    If your incineration unit is subject to title V as a result of some
triggering requirement(s) other than those mentioned above (for
example, a unit may be a major source or part of a major source), then
you may be required to apply for a title V operating permit for that
unit prior to the deadlines specified above. If more than one
requirement triggers a source's obligation to apply for a title V
operating permit, the 12-month timeframe for filing a title V permit
application is triggered by the

requirement which first causes the source to be subject to title V.
(See CAA section 503(c) and 40 CFR parts 70.3(a) and (b), 40 CFR
70.5(a)(1)(i), 40 CFR 71.3(a) and (b), and 40 CFR 71.5(a)(1)(i).)
    For additional background information on the interface between CAA
section 129 and title V, including EPA's interpretation of CAA section
129(e), as well as information on submitting title V permit
applications, updating existing title V permit applications and
reopening existing title V permits, see the final Federal Plan for
Commercial and Industrial Solid Waste Incinerators, October 3, 2003 (68
FR 57518, 57532), as well as the ``Summary of Public Comments and
Responses'' document in EPA's OSWI emission guidelines docket (EPA-HQ-
OAR-2003-0156).

Title V and Delegation of a Federal plan

    We have previously stated our position that issuance of a Title V
permit is not equivalent to the approval of a State plan or delegation
of a Federal plan. 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.\4\ Although 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
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.
---------------------------------------------------------------------------

    \4\ If the Administrator chooses to retain certain authorities
under a standard, those authorities cannot be delegated, e.g.,
alternative methods of demonstrating compliance.
---------------------------------------------------------------------------

    As mentioned above, a State or Tribe may have the authority under
State or Tribal law to incorporate section 111/129 requirements into
its title V permits, and implement and enforce these requirements in
that context without first taking delegation of the section 111/129
Federal plan.\5\ Some States or Tribes, however, may not be able to
implement and enforce a section 111/129 standard in a title V permit
until the section 111/129 standard has been delegated. In these
situations, a State or Tribe should not issue a part 70 permit to a
source subject to a Federal plan before taking delegation of the
section 111/129 Federal plan.
---------------------------------------------------------------------------

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

    If a State or Tribe can provide an Attorney General's (AG's)
opinion delineating its authority to incorporate section 111/129
requirements into its Title V permits, and then implement and enforce
these requirements through its Title V permits without first taking
delegation of the requirements, then a State or Tribe does not need to
take delegation of the section 111/129 requirements for purposes of
title V permitting.\6\ 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.
---------------------------------------------------------------------------

    \6\ 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 CAA section 111/129 requirements into its title V
permits, and to implement and enforce these requirements through its
title V permits without delegation.
---------------------------------------------------------------------------

    In addition, if a permitting authority chooses to rely on an AG's
opinion and not take delegation of a Federal plan, a section 111/129
source subject to the Federal plan in that State must simultaneously
submit to both EPA and the State or Tribe all reports required by the
standard to be submitted to the EPA. Given that these reports are
necessary to implement and enforce the section 111/129 requirements
when they have been included in title V permits, the permitting
authority needs to receive these reports at the same time as the EPA.
    In the situation where a permitting authority chooses to rely on an
AG's opinion and not take delegation of a Federal plan, EPA Regional
Offices will be responsible for implementing and enforcing section 111/
129 requirements outside of any title V permits. Moreover, in this
situation, EPA Regional Offices will continue to be responsible for
developing progress reports, and conducting any other administrative
functions required under this Federal plan or any other section 111/129
Federal plan. See the section IV.J. of this preamble titled ``Progress
Reports''.
    It is important to note that the EPA is not using its authority
under 40 CFR part 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.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under terms
of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
However, the information collection requirements in the proposed rules
have been previously submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501, et seq. and has been assigned OMB
control number 2060-0562 for the proposed rule and the emission
guideline (ICR No. 2164.02 for 40 CFR part 60 subpart FFFF). A copy of
the OMB approved Information Collection Request (ICR) may be obtained
from Susan Auby by mail at the Collection Strategies Division, U.S.
Environmental Protection Agency (2822T), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, or by calling<PHONE_NUMBER>.

    This ICR reflects the burden estimate for the emission guidelines
which were promulgated in the Federal Register on December 16, 2005.
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 proposed rules contain monitoring, reporting, and recordkeeping
requirements. Information specified in the emission guidelines would be
used by States or EPA to identify existing units subject to the State
or Federal plans that implement the emission guidelines, and to ensure
that these units comply with their emission limits and other
requirements. Records and reports would be necessary to enable EPA or
States to identify waste incineration units that may not be in
compliance with the requirements. Based on reported information, EPA
would decide which units and what records or processes should be
inspected.
    These recordkeeping and reporting requirements are specifically
authorized by CAA section 114 (42 U.S.C. 7414). All information
submitted to EPA for which a claim of confidentiality is made will be
safeguarded according to EPA policies in 40 CFR part 2, subpart B,
Confidentiality of Business Information.
    The estimated average annual burden for the first 3 years after
promulgation of the emission guidelines for industry and the
implementing agency is outlined below.

----------------------------------------------------------------------------------------------------------------
                                      Average                                                      Total annual
         Affected entity           annual hours     Labor costs    Capital costs     O&M costs         costs
----------------------------------------------------------------------------------------------------------------
Industry........................           3,803        $174,703              $0              $0        $174,703
Implementing agency.............             383          17,611               0               0          17,611
----------------------------------------------------------------------------------------------------------------

    EPA expects the emission guidelines to affect a maximum of 248 OSWI
units over the first 3 years. There are no capital, start-up, or
operation and maintenance costs for existing units during the first 3
years, because compliance with the emission guidelines is not required
until 5 years after promulgation of the emission guidelines (or 3 years
after the effective date of approval of a State or Federal plan to
implement the guidelines). Costs in the first 3 years include time to
review the guidelines and the State or Federal plan. The implementing
agency will not incur any capital or start-up costs.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or 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 numbers for our
regulations are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the agency certifies that
the proposed rules will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small government organizations, and small government
jurisdictions.
    For purposes of assessing the impacts of the proposed rules on
small entities, small entity is defined as follows:
    1. A small business that is an ultimate parent entity in the
regulated industry that has a gross annual revenue less than $6.5
million (this varies by industry category, ranging up to $10.5 million
for North American Industrial Classification System (NAICS) code 562213
(VSMWC)), based on Small Business Administration's size standards;
    2. a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; or
    3. a small organization that is any not-for-profit enterprise that
is independently owned and operated and is not dominant in its field.
    After considering the economic impacts of the proposed rules on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The economic
impacts on small entities will not be significant because the cost of
the proposed rules is expected to range from negligible to actual cost
savings. EPA expects that the majority of these entities may realize a
cost savings under the likely response to the proposed rules.
    Alternative waste disposal methods, such as land filling, are
available for OSWI units. During development of the underlying EG, our
analysis using model plants and a supplemental analysis using site-
specific data both supported the idea that the annual cost to landfill
waste will typically be less than the annual cost of using an OSWI unit
for waste disposal. Thus, the likely response to the proposed Federal
implementation plan will be for small entities that own and operate
OSWI units to close the units and use an alternative waste disposal
method. More detailed information about these analyses is available in
the docket for the underlying EG (see Revised Economic Analysis for
Other Solid Waste Incineration (OSWI) Units, November 2005; and Impacts
of Other Solid Waste Incinerator Rule on Affected Small Entities,
November 2005 in Docket ID No. EPA-HQ-OAR-2003-0156).
    The Small Business Administration's Office of Advocacy (SBA)
expressed concerns that EPA's certification that the proposed emission
guidelines would not have a significant economic impact on a
substantial number of small entities is not based on an adequate
analysis of IWI units operated by small entities. In response to SBA's
public comment, we conducted further detailed analyses (as

summarized in this preamble and available in the docket) and sent small
entity outreach surveys requesting information regarding the use of
solid waste incinerators at schools to eight entities (identified by
SBA) associated with schools. All responses from the small entity
outreach survey, with one exception, indicate that incinerators are not
being used by the respondents. The one exception regards an institution
that owns/operates pathological waste incinerators, which are excluded
from regulation under the standards and guidelines.
    Although the underlying EG rules will not have a significant
economic impact on a substantial number of small entities, EPA
nonetheless has tried to reduce the impact of the rules on small
entities. The final EG rules provide various exclusions for some
sources that may find it unreasonably costly to comply with the rules
or utilize alternative disposal options. These exclusions should
provide relief for many small entities for which a reasonable disposal
alternative is unavailable. In addition, to ensure that affected
sources were aware of the proposed rules, EPA sent fact sheets to 361
existing OSWI units in our inventory and an additional 125 fact sheets
to trade organizations and interest groups that represented potential
OSWI unit owners/operators. The fact sheets explained the proposed
regulations, the anticipated costs and impacts to their facilities, and
how they could submit comments. None of the facilities or interest
groups submitted comments on the proposed OSWI rules or on the cost or
other impacts EPA anticipated due to the rulemaking and, in fact, about
one-third of the 361 facilities informed us that they no longer own or
operate an incineration unit. We continue to be interested in the
potential impacts of the proposed rule on small entities and welcome
comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 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 by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the proposed rules. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost-effective, or least burdensome
alternative if EPA publishes with the final rule an explanation 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 a small government agency plan under
section 203 of the UMRA. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA's regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
    The EPA has determined that the proposed rules do 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. In the preamble promulgating the
emissions guidelines, we presented our expectation that most OSWI units
would close and utilize an economical alternative waste disposal method
rather than complying with the final rules, rendering the cost impacts
negligible. Thus, the final EG, and by extension the proposed Federal
plan, are not subject to the requirements of section 202 and 205 of the
UMRA. In addition, EPA has determined that the proposed rules contain
no regulatory requirements that might significantly or uniquely affect
small governments because the burden is small and the regulations do
not unfairly apply to small governments. Therefore, the proposed rules
are not subject to the requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a
regulation that imposes substantial direct compliance costs, and that
is not required by statute, unless the Federal government provides the
funds necessary to pay the direct compliance costs incurred by State
and local governments, or EPA consults with State and local officials
early in the process of developing the proposed regulation. Also, EPA
may not issue a regulation that has federalism implications and that
preempts State law, unless EPA consults with State and local officials
early in the process of developing the proposed regulation.
    The proposed rules do not have federalism implications. They will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The proposed rules will not
impose substantial direct compliance costs on State or local
governments, and will not preempt State law. Thus, Executive Order
13132 does not apply to the proposed rules.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, (65 FR 67249, November 9, 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.'' The proposed rule does not have Tribal
implications, as specified in Executive Order 13175. Thus, Executive
Order 13175 does not apply to the proposed rules.

G. Executive Order 13045: Protection of Children From Environmental
Health 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, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria,

EPA must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives 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 Executive Order has
the potential to influence the regulation. The proposed rules are not
subject to Executive Order 13045 because they are based on technology
performance and not on health and safety risks. Also, the proposed
rules are not ``economically significant.''

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR28355; May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA
to use voluntary consensus standards in their regulatory and
procurement activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices) developed or adopted by one or
more voluntary consensus bodies. The NTTAA directs EPA to provide
Congress, through annual reports to OMB, with explanations when an
agency does not use available and applicable voluntary consensus
standards.
    The proposed rules involve technical standards. The EPA proposes to
use EPA Methods 1, 2, 3A, 3B, 4, 5, 6 or 6C, 7 or 7A, 7C, 7D, or 7E, 9,
10, 10A or 10B, 23, 26A, and 29 of 40 CFR part 60, appendix A.
    Consistent with the NTTAA, EPA conducted searches to identify
voluntary consensus standards in addition to these EPA methods. No
applicable voluntary consensus standards were identified for EPA
Methods 7D, 9, and 10A. The search and review results have been
documented and are placed in the docket for the OSWI emission
guidelines.
    One voluntary consensus standard was identified as an acceptable
alternative to EPA test methods for the purposes of the proposed rules.
The voluntary consensus standard ASME PTC 19-10-1981-Part 10, ``Flue
and Exhaust Gas Analyses,'' is cited in the emission guidelines and the
proposed rules for its manual methods for measuring the nitrogen oxide,
oxygen, and sulfur dioxide content of exhaust gas. These parts of ASME
PTC 19-10-1981-Part 10 are acceptable alternatives to Methods 3B, 6, 7,
and 7C.
    The search for emissions measurement procedures identified 29
voluntary consensus standards applicable to the proposed rules. The EPA
determined these 29 standards identified for measuring emissions of Cd,
CO, dioxins/furans, HCl, Hg, Pb, PM, NOX, and SO2
subject to the emission limits were impractical alternatives to EPA
test methods for the purposes of the proposed rules. Therefore, EPA
does not intend to adopt the standards for this purpose. (See Docket ID
No. EPA-HQ-OAR-2003-0156 for further information on the methods.)
    Four of the 29 voluntary consensus standards identified in this
search were not available at the time the review was conducted because
they are under development by a voluntary consensus body: ASME/BSR MFC
13M, ``Flow Measurement by Velocity Traverse,'' for EPA Method 2 (and
possibly 1); ASME/BSR MFC 12M, ``Flow in Closed Conduits Using
Multiport Averaging Pitot Primary Flowmeters,'' for EPA Method 2; ISO/
DIS 12039, ``Stationary Source Emissions-Determination of Carbon
Monoxide, Carbon Dioxide, and Oxygen-Automated Methods'' for EPA Method
3A; and ASTM Z6590Z, ``Manual Method for Both Speciated and Elemental
Mercury'' for EPA Method 29 (portion for Hg only).
    Tables 2 and 4 of subpart FFFF of 40 CFR part 60 list the EPA
testing methods from the underlying EG that would be included in the
proposed rules. Under 40 CFR part 60.8(b) and 60.13(i) of subpart A
(General Provisions), a source may apply to EPA for permission to use
alternative test methods or alternative monitoring requirements in
place of any of the EPA testing methods, performance specifications, or
procedures.

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements.

    Dated: December 8, 2006.
Stephen L. Johnson,
Administrator.

    40 CFR part 62 is proposed to be amended as follows:

PART 62--[AMENDED]

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

    Authority: 42 U.S.C. 7401 et seq.

    2. Section 62.13 is amended by revising paragraph (e) to read as
follows:

Sec.  62.13  Federal plans.

* * * * *
    (e) The substantive requirements of the other solid waste
incineration units Federal plan are contained in subpart KKK of this
part. These requirements include emission limits, compliance schedules,
testing, monitoring, and reporting and recordkeeping requirements.
    3. Part 62 is amended by adding a new subpart KKK to read as
follows:
Subpart KKK--Federal Plan Requirements for Other Solid Waste
Incineration Units That Commenced Construction on or Before December 9,
2004
Sec.

Introduction

62.15450 What is the purpose of this subpart?
62.15455 What are the principal components of this subpart?

Applicability

62.15460 Am I subject to this subpart?
62.15470 Can my OSWI unit be covered by both a State plan and this
subpart?
62.15475 How do I determine if my OSWI unit is covered by an
approved and effective State or Tribal plan?
62.15480 If my OSWI unit is not listed in the Federal plan
inventory, am I exempt from this subpart?
62.15485 Can my combustion unit be exempt from this subpart?
62.15495 When must I submit any records required pursuant to an
exemption allowed under Sec.  62.15485?
62.15500 Are air curtain incinerators regulated under this subpart?

Compliance Schedule and Increments of Progress

62.15505 When must I comply with this subpart if I plan to continue
operation of my OSWI unit?
62.15510 What must I do if I plan to permanently close my OSWI unit
and not restart it?
62.15515 What must I do if I close my OSWI unit and then restart it?

Waste Management Plan

62.15520 What is a waste management plan?
62.15525 When must I submit my waste management plan?

62.15530 What should I include in my waste management plan?

Operator Training and Qualification

62.15535 What are the operator training and qualification
requirements?
62.15545 When must the operator training course be completed?
62.15550 How do I obtain my operator qualification?
62.15555 How do I maintain my operator qualification?
62.15560 How do I renew my lapsed operator qualification?
62.15565 What site-specific documentation is required?
62.15570 What if all the qualified operators are temporarily not
accessible?

Emission Limitations and Operating Limits

62.15575 What emission limitations must I meet and by when?
62.15585 What operating limits must I meet and by when?
62.15595 What if I do not use a wet scrubber to comply with the
emission limitations?
62.15605 What happens during periods of startup, shutdown, and
malfunction?

Performance Testing

62.15610 How do I conduct the initial and annual performance test?
62.15615 How are the performance test data used?

Initial Compliance Requirements

62.15620 How do I demonstrate initial compliance with the emission
limitations and establish the operating limits?
62.15630 By what date must I conduct the initial performance test?

Continuous Compliance Requirements

62.15635 How do I demonstrate continuous compliance with the
emission limitations and the operating limits?
62.15645 By what date must I conduct the annual performance test?
62.15650 May I conduct performance testing less often?
62.15660 May I conduct a repeat performance test to establish new
operating limits?

Monitoring

62.15665 What continuous emission monitoring systems must I install?
62.15675 How do I make sure my continuous emission monitoring
systems are operating correctly?
62.15685 What is my schedule for evaluating continuous emission
monitoring systems?
62.15690 What is the minimum amount of monitoring data I must
collect with my continuous emission monitoring systems, and is the
data collection requirement enforceable?
62.15700 How do I convert my 1-hour arithmetic averages into the
appropriate averaging times and units?
62.15705 What operating parameter monitoring equipment must I
install, and what operating parameters must I monitor?
62.15710 Is there a minimum amount of operating parameter monitoring
data I must obtain?

Recordkeeping and Reporting

62.15715 What records must I keep?
62.15725 Where and in what format must I keep my records?
62.15730 What reports must I submit?
62.15740 What information must I submit following my initial
performance test?
62.15745 When must I submit my annual report?
62.15750 What information must I include in my annual report?
62.15755 What else must I report if I have a deviation from the
operating limits or the emission limitations?
62.15760 What must I include in the deviation report?
62.15765 What else must I report if I have a deviation from the
requirement to have a qualified operator accessible?
62.15770 Are there any other notifications or reports that I must
submit?
62.15775 In what form can I submit my reports?
62.15780 Can reporting dates be changed?

Air Curtain Incinerators That Burn 100 Percent Wood Waste, Clean Lumber
and/or Yard Waste

62.15785 What is an air curtain incinerator?
62.15790 When must I comply if my air curtain incinerator burns only
wood waste, clean lumber, and yard waste?
62.15795 What must I do if I close my air curtain incinerator that
burns only wood waste, clean lumber, and yard waste and then restart
it?
62.15800 What must I do if I plan to permanently close my air
curtain incinerator that burns only wood waste, clean lumber, and
yard waste and not restart it?
62.15805 What are the emission limitations for air curtain
incinerators that burn only wood waste, clean lumber and yard waste?
62.15810 How must I monitor opacity for air curtain incinerators
that burn only wood waste, clean lumber and yard waste?
62.15815 What are the recordkeeping and reporting requirements for
air curtain incinerators that burn only wood waste, clean lumber,
and yard waste?
62.15820 Am I required to apply for and obtain a title V operating
permit for my air curtain incinerator that burns only wood waste,
clean lumber, and yard waste?

Title V Operating Permits

62.15825 Am I required to apply for and obtain a title V operating
permit for my existing unit?
62.15830 When must I submit a title V permit application for my
existing unit?

Temporary-Use Incinerators and Air Curtain Incinerators Used In
Disaster Recovery

62.15835 What are the requirements for temporary-use incinerators
and air curtain incinerators used in disaster recovery?

Delegation of Authority

62.15840 What authorities are withheld by the EPA?

Equations

62.15845 What equations must I use?

Definitions

62.15850 What definitions must I know?

Tables to Subpart KKK of Part 62

Table 1 of Subpart KKK of Part 62--Emission Limitations

Table 2 of Subpart KKK of Part 62--Operating Limits for Incinerators
and Wet Scrubbers

Table 3 of Subpart KKK of Part 62--Requirements for Continuous Emission
Monitoring Systems (CEMS)

Table 4 of Subpart KKK of Part 62--Summary of Reporting Requirements

Subpart KKK--Federal Plan Requirements for Other Solid Waste
Incineration Units That Commenced Construction on or Before
December 9, 2004

Introduction

Sec.  62.15450 What is the purpose of this subpart?
    (a) This subpart establishes emission requirements and compliance
schedules for the control of emissions from other solid waste
incineration (OSWI) units that are not covered by an EPA approved and
currently effective State or Tribal plan. The pollutants addressed by
these emission requirements are listed in Table 1 of this subpart.
These emission requirements are developed in accordance with sections
111 and 129 of the Clean Air Act and subpart B of 40 CFR part 60.
    (b) In this subpart, ``you'' means the owner or operator of an OSWI
unit or air curtain incinerator subject to this subpart.

Sec.  62.15455  What are the principal components of this subpart?

    This subpart contains the twelve major components listed in
paragraphs (a) through (l) of this section.
    (a) Compliance schedule.
    (b) Waste management plan.
    (c) Operator training and qualification.
    (d) Emission limitations and operating limits.
    (e) Performance testing.
    (f) Initial compliance requirements.
    (g) Continuous compliance requirements.
    (h) Monitoring.
    (i) Recordkeeping and reporting.
    (j) Definitions.
    (k) Equations
    (l) Tables.

Applicability

Sec.  62.15460  Am I subject to this subpart?

    (a) You are subject to this subpart if you own or operate an OSWI
unit as defined in Sec.  62.15850, or an air curtain incinerator
subject to this subpart as defined in Sec.  62.15785. OSWI units are
very small municipal waste combustion units and institutional waste
incineration units as defined in Sec.  62.15850. Units subject to this
subpart meet the criteria described in paragraphs (a)(1) through (a)(3)
of this section.
    (1) Construction of your incineration unit commenced on or before
November December 9, 2004.
    (2) Your incineration unit is not exempt under Sec.  62.15485.
    (3) Your incineration unit is not regulated by an EPA approved and
currently effective State or Tribal plan, or your incineration unit is
located in any State whose approved State or Tribal plan is
subsequently vacated in whole or in part.
    (b) If the owner or operator of an incineration unit subject to
this subpart makes changes that meet the definition of modification or
reconstruction on or after June 16, 2006, that unit becomes subject to
subpart EEEE of 40 CFR part 60 (New Source Performance Standards for
Other Solid Waste Incineration Units) and this subpart no longer
applies to that unit.
    (c) If you make physical or operational changes to your existing
incineration unit primarily to comply with this subpart, then such
changes do not qualify as modifications or reconstructions under
subpart EEEE of 40 CFR part 60.

Sec.  62.15470  Can my OSWI unit be covered by both a State plan and
this subpart?

    (a) If your OSWI unit is located in a State that does not have an
EPA-approved State plan or your State's plan has not become effective,
this subpart applies to your OSWI unit until the EPA approves a State
plan that covers your OSWI unit and that State plan becomes effective.
However, a State may enforce the requirements of a State regulation
while your OSWI unit is still subject to this subpart.
    (b) After the EPA approves a State plan covering your OSWI unit,
and after that State plan becomes effective, you will no longer be
subject to this subpart and will only be subject to the approved and
effective State plan.

Sec.  62.15475  How do I determine if my OSWI unit is covered by an
approved and effective State or Tribal plan?

    This part (40 CFR part 62) contains a list of State and Tribal
areas with approved Clean Air Act section 111(d) and section 129 plans
along with the effective dates for such plans. The list is published
annually. If this part does not indicate that your State or Tribal area
has an approved and effective plan, you should contact your State
environmental agency's air director or your EPA Regional Office to
determine if the EPA has approved a State plan covering your unit since
publication of the most recent version of this subpart.

Sec.  62.15480  If my OSWI unit is not listed in the Federal plan
inventory, am I exempt from this subpart?

    Not necessarily. Sources subject to this subpart are not limited to
the inventory of sources listed in Docket No. EPA-HQ-OAR-2006-0364 for
the Federal plan. If your incineration unit meets the applicability
criteria in Sec.  62.15460, this subpart applies to you whether or not
your unit is listed in the Federal plan inventory in the docket.

Sec.  62.15485  Can my combustion unit be exempt from this subpart?

    This subpart exempts the types of units described in paragraphs (a)
through (q) of this section from complying with the requirements of
this subpart except for the requirements specified in this section.
    (a) Cement kilns. The unit is excluded if it is regulated under
subpart LLL of part 63 of this chapter (National Emission Standards for
Hazardous Air Pollutants from the Portland Cement Manufacturing
Industry).
    (b) Co-fired combustors. The unit, that would otherwise be
considered a very small municipal waste combustion unit, is excluded if
the owner/operator of the unit meets the following five requirements:
    (1) Has a Federally enforceable permit limiting the combustion of
municipal solid waste to 30 percent of the total fuel input by weight.
    (2) Notifies the Administrator that the unit qualifies for the
exclusion.
    (3) Provides the Administrator with a copy of the Federally
enforceable permit.
    (4) Records the weights, each calendar quarter, of municipal solid
waste and of all other fuels combusted.
    (5) Keeps each report for 5 years. These records must be kept on
site for at least 2 years, but may be kept off site for the remaining 3
years.
    (c) Cogeneration facilities. The unit is excluded if it meets the
three requirements specified in paragraphs (c)(1) through (3) of this
section.
    (1) The unit qualifies as a cogeneration facility under section
3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)).
    (2) The unit burns homogeneous waste (not including refuse-derived
fuel) to produce electricity and steam or other forms of energy used
for industrial, commercial, heating, or cooling purposes.
    (3) The owner/operator of the unit notifies the Administrator that
the unit meets all of these criteria.
    (d) Commercial and industrial solid waste incineration units. The
unit is excluded if it is regulated under subparts CCCC or DDDD of part
60 or subpart III of part 62 and is required to meet the emission
limitations established in those subparts.
    (e) Hazardous waste combustion units. The unit is excluded if it
meets either of the two criteria specified in paragraph (e)(1) or (2)
of this section.
    (1) The owner/operator of the unit is required to get a permit for
the unit under section 3005 of the Solid Waste Disposal Act.
    (2) The unit is regulated under 40 CFR part 63, subpart EEE
(National Emission Standards for Hazardous Air Pollutants from
Hazardous Waste Combustors).
    (f) Hospital/medical/infectious waste incinerators. The unit is
excluded if it is regulated under subparts Ce or Ec of part 60 (New
Source Performance Standards and Emission Guidelines for Hospital/
Medical/Infectious Waste Incinerators) or subpart HHH of part 62
(Federal Plan Requirements for Hospital/Medical/Infectious Waste
Incinerators Constructed on or before June 20, 1996).
    (g) Incinerators and air curtain incinerators in isolated areas of
Alaska. The incineration unit is excluded if it is used at a solid
waste disposal site in Alaska that is classified as a Class II or Class
III municipal solid waste landfill, as defined in Sec.  62.15850.
    (h) Rural institutional waste incinerators. The incineration unit
is excluded if it is an institutional waste incinerator, as defined in
Sec.  62.15850, and the application for exclusion described in
paragraphs (h)(1) and (2) of this section has been approved by the
Administrator.
    (1) Prior to 1 year before the final compliance date, an
application and supporting documentation demonstrating that the
institutional waste incineration unit meets the two requirements
specified in paragraphs (h)(1)(i) and (ii) of this section must be
submitted to the Administrator for approval.
    (i) The unit is located more than 50 miles from the boundary of the
nearest Metropolitan Statistical Area,
    (ii) Alternative disposal options are not available or are
economically infeasible,

    (2) The application described in paragraph (h)(1) of this section
must be revised and resubmitted to the Administrator for approval every
5 years following the initial approval of the exclusion for your unit.
    (3) If you re-applied for an exclusion pursuant to paragraph (h)(2)
of this section and were denied exclusion by the Administrator, you
have 3 years from the expiration date of the current exclusion to
comply with the emission limits and all other applicable requirements
of this subpart.
    (i) Institutional boilers and process heaters. The unit is excluded
if it is regulated under 40 CFR part 63, subpart DDDDD (National
Emission Standards for Hazardous Air Pollutants for Industrial,
Commercial, and Institutional Boilers and Process Heaters).
    (j) Laboratory Analysis Units. The unit is excluded if it burns
samples of materials only for the purpose of chemical or physical
analysis.
    (k) Materials recovery units. The unit is excluded if it combusts
waste for the primary purpose of recovering metals. Examples include
primary and secondary smelters.
    (l) Pathological waste incineration units. An institutional waste
incineration unit or very small municipal waste combustion unit is
excluded from this subpart if it burns 90 percent or more by weight (on
a calendar quarter basis and excluding the weight of auxiliary fuel and
combustion air) of pathological waste, low-level radioactive waste,
and/or chemotherapeutic waste as defined in Sec.  62.15850 and the
owner/operator of the unit meets the criteria specified in paragraphs
(l)(1) and (2) of this section.
    (1) Notify the Administrator that the unit meets these criteria.
    (2) Keeps records on a calendar quarter basis of the weight of
pathological waste, low-level radioactive waste, and/or
chemotherapeutic waste burned, and the weight of all other fuels and
wastes burned in the unit.
    (m) Small or large municipal waste combustion units. The unit is
excluded if it is regulated under 40 CFR part 60, subparts AAAA, BBBB,
Ea, Eb, or Cb, and is required to meet the emission limitations
established in those subparts. Also excluded are units regulated under
40 CFR part 62, subparts FFF or JJJ.
    (n) Small power production facilities. The unit is excluded if it
meets the three requirements specified in paragraphs (n)(1) through (3)
of this section.
    (1) The unit qualifies as a small power-production facility under
section 3(17)(C) of the Federal Power Act (16 U.S.C. 796(17)(C)).
    (2) The unit burns homogeneous waste (not including refuse-derived
fuel) to produce electricity.
    (3) The owner/operator of the unit notifies the Administrator that
the unit meets all of these criteria.
    (o) Temporary-use incinerators and air curtain incinerators used in
disaster recovery. The incineration unit is excluded if it is used on a
temporary basis to combust debris from a disaster or emergency such as
a tornado, hurricane, flood, ice storm, high winds, or act of
bioterrorism and you comply with the requirements in Sec.  62.15835.
    (p) Units that combust contraband or prohibited goods. The
incineration unit is excluded if the unit is owned or operated by a
government agency such as police, customs, agricultural inspection, or
a similar agency to destroy only illegal or prohibited goods such as
illegal drugs, or agricultural food products that can not be
transported into the country or across state lines to prevent
biocontamination. The exclusion does not apply to items either
confiscated or incinerated by private, industrial, or commercial
entities.
    (q) Incinerators used for national security. Your incineration unit
is excluded if it meets the requirements specified in either (q)(1) or
(2) of this section.
    (1) The incineration unit is used solely during military training
field exercises to destroy national security materials integral to the
field exercises.
    (2) The incineration unit is used solely to incinerate national
security materials, its use is necessary to safeguard national
security, you follow the exclusion request requirements in paragraphs
(q)(2)(i) and (ii) of this section, and the Administrator has approved
your request for exclusion.
    (i) The request for exclusion and supporting documentation must
demonstrate both that the incineration unit is used solely to destroy
national security materials and that a reliable alternative to
incineration that ensures acceptable destruction of national security
materials is unavailable, on either a permanent or temporary basis.
    (ii) The request for exclusion must be submitted to the
Administrator prior to 1 year before the final compliance date.

Sec.  62.15495  When must I submit any records required pursuant to an
exemption allowed under Sec.  62.15485?

    Owners or operators of sources that qualify for the exemptions in
Sec.  62.15485(b) and (l) must submit any records required to support
their claims of exemption to the EPA Administrator (or delegated
enforcement authority) upon request. Upon request by any person under
the regulation at part 2 of this chapter (or a comparable law or
regulation governing a delegated enforcement authority), the EPA
Administrator (or delegated enforcement authority) must request the
records in Sec.  62.15485(b) and (l) from an owner or operator and make
such records available to the requestor to the extent required by part
2 of this chapter (or a comparable law governing a delegated
enforcement authority). Any records required under Sec.  62.15485(b)
and (l) must be maintained by the source for a period of at least 5
years. Notifications of exemption claims required under Sec.
62.15485(b) and (l) of this section must be maintained by the EPA or
delegated enforcement authority for a period of at least five years.
Any information obtained from an owner or operator of a source
accompanied by a claim of confidentiality will be treated in accordance
with the regulations in part 2 of this chapter (or a comparable law
governing a delegated enforcement authority).

Sec.  62.15500  Are air curtain incinerators regulated under this
subpart?

    (a) Air curtain incinerators that burn less than 35 tons per day of
municipal solid waste or air curtain incinerators located at
institutional facilities burning any amount of institutional waste
generated at that facility are subject to all requirements of this
subpart, including the emission limitations specified in Table 1 of
this subpart.
    (b) Air curtain incinerators that burn only less than 35 tons per
day of the materials listed in paragraphs (b)(1) through (4) of this
section collected from the general public and from residential,
commercial, institutional, and industrial sources; or, air curtain
incinerators located at institutional facilities that burn only the
materials listed in paragraphs (b)(1) through (4) of this section
generated at that facility, are required to meet only the requirements
in Sec. Sec.  62.15785 through 62.15830 and are exempt from all other
requirements of this subpart.
    (1) 100 percent wood waste.
    (2) 100 percent clean lumber.
    (3) 100 percent yard waste.
    (4) 100 percent mixture of only wood waste, clean lumber, and/or
yard waste.

Compliance Schedule and Increments of Progress

Sec.  62.15505  When must I comply with this subpart if I plan to
continue operation of my OSWI unit?

    If you plan to continue operation and come into compliance with the
requirements of this subpart by [A DATE WILL BE INSERTED WHICH WILL BE
THREE YEARS AFTER DATE THE FINAL RULE IS PUBLISHED IN THE Federal
Register], then you must complete the requirements of paragraphs (a)
through (f) of this section.
    (a) You must comply with the operator training and qualification
requirements and inspection requirements (if applicable) of this
subpart by [A DATE WILL BE INSERTED WHICH WILL BE ONE YEAR AFTER DATE
THE FINAL RULE IS PUBLISHED IN THE Federal Register].
    (b) You must submit a waste management plan no later than 60 days
following the initial performance test as specified in Table 4 of this
subpart.
    (c) You must achieve final compliance by [A DATE WILL BE INSERTED
WHICH WILL BE THREE YEARS AFTER THE DATE THE FINAL RULE IS PUBLISHED IN
THE Federal Register]. To achieve final compliance, you must
incorporate all process changes and complete retrofit construction of
control devices, so that, if the affected CISWI unit is brought online,
all necessary process changes and air pollution control devices would
operate as designed.
    (d) You must conduct the initial performance test no later than [A
DATE WILL BE INSERTED WHICH WILL BE THREE YEARS PLUS 180 DAYS AFTER THE
DATE THE FINAL RULE IS PUBLISHED IN THE Federal Register].
    (e) You must submit an initial test report including the results of
the initial performance test no later than 60 days following the
initial performance test.
    (f) You must submit a notification to the Administrator stating
whether final compliance has been achieved, postmarked within 10
business days after [A DATE WILL BE INSERTED WHICH WILL BE THREE YEARS
PLUS 10 DAYS AFTER THE DATE THE FINAL RULE IS PUBLISHED IN THE Federal
Register].

Sec.  62.15510  What must I do if I plan to permanently close my OSWI
unit and not restart it?

    You must close the unit before the final compliance date on [A DATE
WILL BE INSERTED WHICH WILL BE THREE YEARS AFTER DATE THE FINAL RULE IS
PUBLISHED IN THE Federal Register].
    (1) You must comply with the operator training and qualification
requirements and inspection requirements (if applicable) of this
subpart by [A DATE WILL BE INSERTED WHICH WILL BE ONE YEAR AFTER DATE
THE FINAL RULE IS PUBLISHED IN THE Federal Register].
    (2) While still in operation, your OSWI unit is subject to the same
requirement to apply for and obtain a title V operating permit that
applies to an OSWI unit that will not be permanently closing. See
Sec. Sec.  62.15825 and 62.15830.

Sec.  62.15515  What must I do if I close my OSWI unit and then restart
it?

    (a) If you close your OSWI unit but will reopen it prior to [A DATE
WILL BE INSERTED WHICH WILL BE THREE YEARS AFTER DATE THE FINAL RULE IS
PUBLISHED IN THE Federal Register], you must meet all the requirements
of Sec.  62.15505.
    (b) If you close your OSWI unit and restart the unit after [A DATE
WILL BE INSERTED WHICH WILL BE THREE YEARS AFTER THE DATE THE FINAL
RULE IS PUBLISHED IN THE Federal Register] and resume operation, you
must meet all of the requirements of Sec.  62.15505(a), (b), (c), and
(e) at the time you restart your OSWI unit. You must conduct the
initial performance test within 30 days of restarting your OSWI unit.
Upon restarting your OSWI unit, you must have incorporated all process