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Proposed Rule2024-15840

National Emission Standards for Hazardous Air Pollutants From Hazardous Waste Combustors Malfunction and Electronic Reporting Amendments

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Published

July 24, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is proposing to amend the National Emission Standards for Hazardous Air Pollutants (NESHAP) from Hazardous Waste Combustors (HWC) to remove the exemptions and revise other provisions associated with emission standard exemptions for periods of malfunction, to add electronic reporting provisions, to amend emergency safety vent provisions, and to correct other minor provisions. The removal of the exemption for periods of malfunction is predicated on the previous vacatur of emission standard exemptions for periods of startup, shutdown, and malfunction (SSM) from the applicable general provisions. We are also proposing to remove or revise some associated requirements that are unnecessary, inappropriate, or redundant in the absence of the malfunction exemption, such as in recordkeeping and reporting. Emission standards will apply during periods of malfunction as required under the Clean Air Act (CAA). The addition of electronic reporting provisions will provide for simplified reporting by sources and will enhance the availability of data on sources to the EPA and the public. In addition, the EPA is proposing amendments to emergency safety vent provisions and one correction to the rule to correct an inadvertent error in the Code of Federal Regulations (CFR) related to the use of Method 23 to determine compliance with the dioxin and furan standards.

Full Text

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<title>Federal Register, Volume 89 Issue 142 (Wednesday, July 24, 2024)</title>
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[Federal Register Volume 89, Number 142 (Wednesday, July 24, 2024)]
[Proposed Rules]
[Pages 59867-59876]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15840]

[[Page 59867]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0022; FRL-11253-01-OAR]
RIN 2060-AW06

National Emission Standards for Hazardous Air Pollutants From
Hazardous Waste Combustors Malfunction and Electronic Reporting
Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend the National Emission Standards for Hazardous Air Pollutants
(NESHAP) from Hazardous Waste Combustors (HWC) to remove the exemptions
and revise other provisions associated with emission standard
exemptions for periods of malfunction, to add electronic reporting
provisions, to amend emergency safety vent provisions, and to correct
other minor provisions. The removal of the exemption for periods of
malfunction is predicated on the previous vacatur of emission standard
exemptions for periods of startup, shutdown, and malfunction (SSM) from
the applicable general provisions. We are also proposing to remove or
revise some associated requirements that are unnecessary,
inappropriate, or redundant in the absence of the malfunction
exemption, such as in recordkeeping and reporting. Emission standards
will apply during periods of malfunction as required under the Clean
Air Act (CAA). The addition of electronic reporting provisions will
provide for simplified reporting by sources and will enhance the
availability of data on sources to the EPA and the public. In addition,
the EPA is proposing amendments to emergency safety vent provisions and
one correction to the rule to correct an inadvertent error in the Code
of Federal Regulations (CFR) related to the use of Method 23 to
determine compliance with the dioxin and furan standards.

DATES: Comments must be received on or before September 9, 2024. Under
the Paperwork Reduction Act (PRA), comments on the information
collection provisions are best assured of consideration if the Office
of Management and Budget (OMB) receives a copy of your comments on or
before August 23, 2024.
Public hearing: If anyone contacts us requesting a public hearing
on or before July 29, 2024, we will hold a virtual public hearing. See
SUPPLEMENTARY INFORMATION for information on requesting and registering
for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2004-0022, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#17763a7679733a653a7378747c72635772677639707861">[email&#160;protected]</a>. Include Docket ID No. EPA-
HQ-OAR-2004-0022 in the subject line of the message.
<bullet> Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2004-0022.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2004-0022, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact U.S. EPA, Attn: Rachel Smoak, Mail Drop: E143-02, 109
T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina 27711;
telephone number: (919) 541-0253; and email address:
<a href="/cdn-cgi/l/email-protection#f7849a98969cd98596949f929bb7928796d9909881">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: Participation in virtual public hearing.
To request a virtual public hearing, contact the public hearing
team at (888) 372-8699 or by email at <a href="/cdn-cgi/l/email-protection#aefdfefeeadedbccc2c7cdc6cbcfdcc7c0c9eecbdecf80c9c1d8">[email&#160;protected]</a>. If
requested, the hearing will be held via virtual platform on August 8,
2024. The hearing will convene at 11 a.m. Eastern Time (ET) and will
conclude at 3 p.m. ET. The EPA may close a session 15 minutes after the
last pre-registered speaker has testified if there are no additional
speakers. The EPA will announce further details at <a href="https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous</a>.
If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than one (1) business day
after a request has been received. To register to speak at the virtual
hearing, please use the online registration form available at <a href="https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous</a> or contact the public
hearing team at (888) 372-8699 or by email at
<a href="/cdn-cgi/l/email-protection#085b58584c787d6a64616b606d697a61666f486d7869266f677e">[email&#160;protected]</a>. The last day to pre-register to speak at the
hearing will be August 5, 2024. Prior to the hearing, the EPA will post
a general agenda that will list pre-registered speakers at: <a href="https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous</a>.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearing to run either ahead of schedule or behind schedule.
Each commenter will have four (4) minutes to provide oral
testimony. The EPA encourages commenters to provide the EPA with a copy
of their oral testimony electronically (via email) by emailing it to
<a href="/cdn-cgi/l/email-protection#07746a68666c297566646f626b4762776629606871">[email&#160;protected]</a>. The EPA also recommends submitting the text of
your oral testimony as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous</a>. While the EPA expects the hearing to go forward as set forth
above, please monitor our website or contact the public hearing team at
(888) 372-8699 or by email at <a href="/cdn-cgi/l/email-protection#da898a8a9eaaafb8b6b3b9b2bfbba8b3b4bd9abfaabbf4bdb5ac">[email&#160;protected]</a> to determine if
there are any updates. The EPA does not intend to publish a document in
the Federal Register announcing updates.
If you require the services of a translator or special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by July
31, 2024. The EPA may not be

[[Page 59868]]

able to arrange accommodations without advanced notice.
Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2004-0022. All documents in the docket are
listed in <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Although listed, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy. With the exception of such material, publicly available docket
materials are available electronically in <a href="http://Regulations.gov">Regulations.gov</a>.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2004-0022. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
any information that you consider to be CBI or other information whose
disclosure is restricted by statute. This type of information should be
submitted as discussed below.
The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
The <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include special characters or any form of encryption and be
free of any defects or viruses. For additional information about the
EPA's public docket, visit the EPA Docket Center homepage at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
Submitting CBI. Do not submit information containing CBI to the EPA
through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, note the docket ID,
mark the outside of the digital storage media as CBI, and identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in Instructions above. If you submit any digital storage media
that does not contain CBI, mark the outside of the digital storage
media clearly that it does not contain CBI and note the docket ID.
Information not marked as CBI will be included in the public docket and
the EPA's electronic public docket without prior notice. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office at the email address <a href="/cdn-cgi/l/email-protection#422d233332311d21202b022732236c252d34">[email&#160;protected]</a>, and as
described above, should include clear CBI markings and note the docket
ID. If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email <a href="/cdn-cgi/l/email-protection#ff909e8e8f8ca09c9d96bf9a8f9ed1989089">[email&#160;protected]</a> to
request a file transfer link. If sending CBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
P.O. Box 12055, Research Triangle Park, North Carolina 27711, Attention
Docket ID No. EPA-HQ-OAR-2004-0022. The mailed CBI material should be
double wrapped and clearly marked. Any CBI markings should not show
through the outer envelope.
Preamble acronyms and abbreviations. Throughout this preamble the
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We
use multiple acronyms and terms in this preamble. While this list may
not be exhaustive, to ease the reading of this preamble and for
reference purposes, the EPA defines the following terms and acronyms
here:

CAA Clean Air Act
CBI Confidential Business Information
CDX Central Data Exchange
CEDRI Compliance and Emissions Data Reporting Interface
CFR Code of Federal Regulations
EPA Environmental Protection Agency
ERT Electronic Reporting Tool
HAP hazardous air pollutant(s)
HWC hazardous waste combustor(s)
ICR information collection request
MACT maximum achievable control technology
NAICS North American Industry Classification System
NESHAP national emission standards for hazardous air pollutants
NIC notice of intent to comply
NOC notification of compliance
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
PDF portable document format
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
SSM startup, shutdown, and malfunction
UMRA Unfunded Mandates Reform Act

Organization of this document. The information in this preamble is
organized as follows:

I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Background
A. What is the statutory authority for this action?
B. What is this source category and how does the current NESHAP
regulate its HAP emissions?
III. Proposed Actions
A. What actions are we proposing, and what is the rationale for
those actions?
B. What compliance dates are we proposing, and what is the
rationale for the proposed compliance dates?
IV. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected sources?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What are the benefits?
F. What analysis of environmental justice did we conduct?
G. What analysis of children's environmental health did we
conduct?

[[Page 59869]]

V. Request for Comments
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All

I. General Information

A. Does this action apply to me?

Table 1 of this preamble lists the NESHAP and associated regulated
industrial source categories that are the subject of this proposal.
Table 1 is not intended to be exhaustive, but rather provides a guide
for readers regarding the entities that this proposed action is likely
to affect. The proposed standards, once promulgated, will be directly
applicable to the affected sources. State, local, and Tribal government
entities would not be affected by this proposed action. The source
category that is the subject of this proposal is hazardous waste
combustors (HWC) regulated under 40 CFR part 63, subpart EEE, the
National Emission Standards for Hazardous Air Pollutants from Hazardous
Waste Combustors (HWC NESHAP). The HWC NESHAP includes hazardous waste
combusting sources from five initial source categories: hazardous waste
incinerators, Portland cement manufacturing, clay products
manufacturing (including lightweight aggregate kilns), industrial
boilers, and hydrochloric acid production furnaces. As defined in the
Initial List of Categories of Sources Under Section 112(c)(1) of the
Clean Air Act Amendments of 1990 (see 57 FR 31576, July 16, 1992) and
Documentation for Developing the Initial Source Category List, Final
Report (see EPA-450/3-91-030, July 1992), the Hazardous Waste
Incineration source category is any source that incinerates hazardous
waste in ``any furnace, or other device, used in the process of burning
waste for the primary purpose of reducing the volume of the waste by
removing combustible matter.'' The Portland Cement Manufacturing source
category includes ``any facility engaged in manufacturing Portland
cement by either the wet or dry process.'' The Clay Products
Manufacturing source category includes lightweight aggregate kilns and
is defined as ``any facility engaged in manufacturing of clay products
such as brick, vitrified clay pipe, structural clay tile, and clay
refractories.'' The Industrial Boilers source category, ``includes
boilers used in manufacturing, processing, mining, and refining or any
other industry to provide steam, hot water, and/or electricity.'' The
Hydrochloric Acid Production Furnace source category includes ``any
facility engaged in the production of hydrochloric acid.'' Hazardous
waste combusting sources from these source categories are regulated as
hazardous waste combustors under 40 CFR part 63, subpart EEE, the HWC
NESHAP.

Table 1--NESHAP and Industrial Source Categories Affected by This
Proposed Action
------------------------------------------------------------------------
Source category NESHAP NAICS code \1\
------------------------------------------------------------------------
Petroleum and coal products 40 CFR part 63, 3241
manufacturing. subpart EEE.
Chemical manufacturing............ 40 CFR part 63, 325
subpart EEE.
Cement and concrete product 40 CFR part 63, 3273
manufacturing. subpart EEE.
Other nonmetallic mineral product 40 CFR part 63, 3279
manufacturing. subpart EEE.
Hazardous waste treatment and 40 CFR part 63, 562211
disposal. subpart EEE.
Remediation and other waste 40 CFR part 63, 5629
management services. subpart EEE.
------------------------------------------------------------------------
\1\ North American Industry Classification System (NAICS).

B. Where can I get a copy of this document and other related
information?

In addition to being available in the docket, an electronic copy of
this action is available on the internet. Following signature by the
EPA Administrator, the EPA will post a copy of this proposed action at
<a href="https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous</a>. Following publication
in the Federal Register, the EPA will post the Federal Register version
of the proposal and key technical documents at this same website.
A memorandum showing the rule edits that would be necessary to
incorporate the changes to 40 CFR part 63, subpart EEE proposed in this
action is available in the docket (Docket ID No. EPA-HQ-OAR-2004-0022).
Following signature by the EPA Administrator, the EPA also will post a
copy of this document to <a href="https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous">https://www.epa.gov/stationary-sources-air-pollution/hazardous-waste-combustors-national-emission-standards-hazardous</a>.

II. Background

A. What is the statutory authority for this action?

The statutory authority for this action is provided by sections 112
and 301 of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et
seq.). Section 112 of the CAA establishes a two-stage regulatory
process to develop standards for emissions of hazardous air pollutants
(HAP) from stationary sources. Generally, the first stage involves
establishing technology-based standards and the second stage involves
evaluating those standards that are based on maximum achievable control
technology (MACT) to determine whether additional standards are needed
to address any remaining risk associated with HAP emissions. This
second stage is commonly referred to as the ``residual risk review.''
In addition to the residual risk review, the CAA also requires the EPA
to review standards set under CAA section 112 every 8 years and revise
the standards as necessary taking into account any ``developments in
practices, processes, or control technologies.'' This review is
commonly referred to as the ``technology review''. This action proposes
to amend the current rule to remove an exemption that is inconsistent
with the statute and to update the reporting requirements in
preparation for conducting the required residual risk and technology
reviews.

[[Page 59870]]

B. What is this source category and how does the current NESHAP
regulate its HAP emissions?

Hazardous waste combustors are incinerators, cement kilns,
lightweight aggregate kilns, boilers, or hydrochloric acid production
furnaces that combust hazardous waste for the purpose of waste
reduction, thermal energy recovery, and/or production of a product. The
HWC NESHAP covers hazardous air pollutant emissions from hazardous
waste combustors at major and area sources. The key pollutants the EPA
regulates from these sources include polychlorinated dibenzodioxins and
furans (PCDD/PCDF), mercury, cadmium, lead, arsenic, beryllium,
chromium, hydrogen chloride, chlorine, other hydrocarbon HAP, and non-
enumerated metal HAP.
The HWC NESHAP was first promulgated in 1999 and regulated
hazardous waste incinerators, cement kilns, and lightweight aggregate
kilns.\1\ These standards were amended and standards for hazardous
waste solid fuel boilers, liquid fuel boilers, and hydrochloric acid
production furnaces were added in 2005.\2\ Subsequent amendments to the
HWC NESHAP were made in 2005, 2006, and 2008.\3\ The EPA sought and
received a full voluntary remand of the rule in 2009 to reexamine the
rule in its totality.\4\
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\1\ 64 FR 52828 (September 30, 1999).
\2\ 70 FR 59402 (October 12, 2005).
\3\ 70 FR 75042 (December 19, 2005); 71 FR 62388 (October 25,
2006); and 73 FR 64068 (October 28, 2008).
\4\ Sierra Club v. EPA, Docket No. 05-1441 (consolidated with
Docket Nos. 05-1442, 05-1443,05-1445, 05-1449) (D.C. Cir.).
---------------------------------------------------------------------------

In a 2008 decision (Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir.
2008)), the United States Court of Appeals for the District of Columbia
Circuit (the court) vacated portions of two provisions in the NESHAP
General Provisions governing the emissions of HAP during periods of
SSM. Specifically, the court vacated NESHAP General Provisions language
that exempted sources from HAP non-opacity and opacity emission
standards contained in 40 CFR 63.6(f)(1) and (h)(1). The court held
that under section 302(k) of the CAA, emissions standards or
limitations must be continuous in nature and that ``the SSM exemption
violates the CAA's requirement that some section 112 standards apply
continuously.''

III. Proposed Actions

A. What actions are we proposing, and what is the rationale for those
actions?

In this proposal, we are proposing the following revisions to the
HWC NESHAP: (1) removal or revision of provisions associated with
emission limit exemptions for periods of malfunction, including some
recordkeeping and reporting requirements and General Provisions
applicability; (2) amendment to emergency safety vent provisions,
including recordkeeping requirements; (3) addition of electronic
reporting provisions; and (4) a technical correction related to the use
of Method 23 to determine compliance with the PCDD/PCDF standards. The
proposed decisions, as well as the rationale for those decisions, are
presented below.
1. Periods of malfunction
We are proposing revisions to the malfunction provisions of the
NESHAP in order to ensure that they are consistent with the decision in
Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008), in which the court
vacated two provisions that exempted sources from the requirement to
comply with otherwise applicable CAA section 112(d) emission standards
during periods of SSM. We are proposing the elimination of the
malfunction exemption in this rule which appears at 40 CFR
63.1206(b)(1)(i), (c)(2)(v), and (c)(4)(i). The EPA is in the process
of gathering and evaluating data about startup and shutdown to evaluate
whether sources can meet the normal operations standards during periods
of startup and shutdown or if alternative standards for these periods
are warranted and, if alternative standards are warranted, to develop
them. Due to the amount of time needed for these activities, the
removal of the startup and shutdown exemptions along with revisions to
associated recordkeeping and reporting provisions will be undertaken in
a subsequent planned rulemaking action.
With the issuance of the mandate in Sierra Club v. EPA, on October
16, 2009, the vacatur became effective and the regulatory provisions
contained in 40 CFR 63.6(f)(1) and (h)(1) became null and void. The EPA
amended 40 CFR 63.6(f)(1) and (h)(1) on March 11, 2021, to reflect the
court order and correct the CFR to remove the SSM exemption.\5\ We are
removing any cross-references to the vacated provisions in the
regulatory language to conform to the court's order in Sierra Club v.
EPA.
---------------------------------------------------------------------------

\5\ 86 FR 13819 (March 11, 2021).
---------------------------------------------------------------------------

We are also proposing several revisions to the General Provisions
Applicable to Subpart EEE table (table 1 to subpart EEE) in the HWC
NESHAP as is explained in more detail below. We also are proposing to
revise certain recordkeeping and reporting requirements related to the
malfunction exemption as further described below.
We are not proposing changes to the emissions limits of the HWC
NESHAP even though we are removing the exemption from emission limits
during periods of malfunction. Periods of startup, normal operations,
and shutdown are all predictable and routine aspects of a source's
operations. Malfunctions, in contrast, are neither predictable nor
routine. Instead, they are, by definition, sudden, infrequent, and not
reasonably preventable failures of emissions control, process, or
monitoring equipment. (40 CFR 63.2) (Definition of malfunction). The
EPA has interpreted CAA section 112 as not requiring emissions that
occur during periods of malfunction to be factored into development of
CAA section 112 standards. This reading has been upheld as reasonable
by the D.C. Circuit since at least 2016. U.S. Sugar Corp. v. EPA, 830
F.3d 579, 606-610 (D.C. Cir.) (2016). Although no statutory language
compels the EPA to set different standards for periods of malfunction,
we have the discretion to do so where feasible.
2. Recordkeeping and Reporting Requirements and General Provisions
Applicability
Because we are proposing amendments to 40 CFR part 63, subpart EEE,
we are also proposing related revisions to the recordkeeping and
reporting requirements and to table 1 to subpart EEE.
a. Section 63.1206(b)(1) General Duty
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.6(e) by removing the applicability of 40 CFR 63.6(e)(1)(i),
which describes the general duty to minimize emissions. Some of the
language in that section is no longer either necessary or appropriate
considering the elimination of the malfunction exemption. We are
proposing instead to add regulatory text at 40 CFR 63.1206(b)(1) that
reflects the general duty to minimize emissions while eliminating the
reference to periods covered by a malfunction exemption. The current
language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty
entails during periods of malfunction. With the elimination of the
malfunction exemption, there is no need

[[Page 59871]]

to differentiate between normal operations and malfunction events in
describing the general duty. Therefore, the language the EPA is
proposing for 40 CFR 63.1206(b)(1) does not include that language from
40 CFR 63.6(e)(1).
We are also proposing to revise the table 1 to subpart EEE entry
for 40 CFR 63.6(e) by removing the applicability of 40 CFR
63.6(e)(1)(ii). Section 63.6(e)(1)(ii) imposes requirements that are no
longer necessary with the elimination of the malfunction exemption or
are redundant with the general duty requirement being added at 40 CFR
63.1206(b)(1).
b. SSM Plan
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.6(e) by removing the applicability of 40 CFR 63.6(e)(3)(i)(A),
which requires owners or operators to satisfy the general duty to
minimize emissions at all times. The cross-reference to the general
duty requirement is redundant with the general duty requirement being
added at 40 CFR 63.1206(b)(1).
c. Compliance With Standards
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.6(f) by removing the applicability of 40 CFR 63.6(f)(1), which
requires that non-opacity emission standards apply at all times except
as otherwise specified in an applicable subpart. Consistent with Sierra
Club, the EPA amended 40 CFR 63.6(f)(1) and (h)(1) on March 11, 2021,
to reflect the mandate and correct the CFR to remove the SSM exemption.
However, the second sentence of 40 CFR 63.6(f)(1) contains language
that is premised on the existence of an exemption and is inappropriate
in the absence of the malfunction exemption.
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.6(h) by removing the applicability of 40 CFR 63.6(h)(1), which
requires that opacity and visible emission standards apply at all times
except as otherwise specified in an applicable subpart. Consistent with
Sierra Club, the EPA amended 40 CFR 63.6(h)(1) on March 11, 2021, to
reflect the mandate and correct the CFR to remove the SSM exemption.
However, the second sentence of 40 CFR 63.6(h)(1) contains language
that is premised on the existence of an exemption and is inappropriate
in the absence of the malfunction exemption.
d. Section 63.1207(g) Performance Testing
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.7(e) by removing the applicability of 40 CFR 63.7(e)(1), which
describes performance testing requirements. The EPA is instead
proposing to add a performance testing requirement at 40 CFR
63.1207(g). The performance testing requirements we are proposing to
add differ from the General Provisions performance testing provisions
in several respects. The regulatory text does not include the language
in 40 CFR 63.7(e)(1) that restated the malfunction exemption and
language that precluded operations during periods of SSM periods from
being considered ``representative'' for purposes of performance
testing. As in 40 CFR 63.7(e)(1), performance tests conducted under
this subpart should not be conducted during periods of SSM because
conditions may not be representative of normal operating conditions.
The EPA is proposing to add language that requires the owner or
operator to record the process information that is necessary to
document operating conditions during the test and include in such
record an explanation to support that such conditions represent normal
operation; conducting performance testing under operating conditions
representative of the extreme range of normal conditions is consistent
with this requirement. The language in 40 CFR 63.7(e) requires that the
owner or operator make available to the Administrator such records ``as
may be necessary to determine the condition of the performance test''
but does not specifically require the information to be recorded. The
regulatory text the EPA is proposing to add to this provision builds on
that requirement and makes explicit the requirement to record the
information.
e. Monitoring
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.8(c) by removing the applicability of 40 CFR 63.8(c)(1)(i),
which requires that owners or operators maintain and operate each
continuous monitoring system in compliance with the general duty
requirement. The cross-reference to the general duty requirement in
that subparagraph is not necessary considering other requirements of 40
CFR 63.8 that require good air pollution control practices (40 CFR
63.8(c)(1)) and that set out the requirements of a quality control
program for monitoring equipment (40 CFR 63.8(d)).
f. Section 63.1211(a) Reporting
We are also proposing to revise 40 CFR 63.1211(a), which summarizes
reporting requirements, by adding language that requires sources that
fail to meet an applicable standard at any time to report the
information concerning such events in both the excessive emissions and
continuous monitoring system performance report and summary report
already required under this rule. We are proposing that the report must
contain the start date, start time, end date, end time, and the cause
of such events (including unknown cause, if applicable), a list of the
affected source or equipment, an estimate of the quantity of each
regulated pollutant emitted over any emission limit, and a description
of the method used to estimate the emissions.
Examples of such methods would include product-loss calculations,
mass balance calculations, measurements when available, or engineering
judgment based on known process parameters. The EPA is proposing this
requirement to ensure that there is adequate information to determine
compliance, to allow the EPA to determine the severity of the failure
to meet an applicable standard, and to provide data that may document
how the source met the general duty to minimize emissions during a
failure to meet an applicable standard.
g. Section 63.1211(e) Recordkeeping
We are proposing to revise the table 1 to subpart EEE entry for 40
CFR 63.10 by removing the applicability of 40 CFR 63.10(b)(2)(i), which
describes the recordkeeping requirements during startup and shutdown.
It will continue to be important to know when such startup and shutdown
periods begin and end in order to determine compliance with the
appropriate standard for normal operations. We are proposing to add
recordkeeping requirements to 40 CFR 63.1211(e) that require
recordkeeping of startup and shutdown events and require reporting
related to all exceedances.
We are also proposing to revise the table 1 to subpart EEE entry
for 40 CFR 63.10 by removing the applicability of 40 CFR
63.10(b)(2)(ii), which describes the recordkeeping requirements during
a malfunction. The EPA is proposing to add such requirements to 40 CFR
63.1211(e). The regulatory text we are proposing to add differs from
the General Provisions it is replacing in that the General Provisions
requires the creation and retention of a record of the occurrence and
duration of each malfunction of process, air pollution control, and
monitoring equipment. The EPA is proposing that sources record the
start date, start time, end date, end time, and cause (including an
unknown cause, if applicable) of any event in which an affected source
fails to meet an applicable standard. The EPA is also

[[Page 59872]]

proposing to add a requirement that sources keep records that includes
the affected source or equipment, whether the failure occurred during a
period of SSM, actions taken to minimize emissions, an estimate of the
quantity of each regulated pollutant emitted over the standard for
which the source failed to meet the standard, and a description of the
method used to estimate the emissions. Examples of such methods would
include product-loss calculations, mass balance calculations,
measurements when available, or engineering judgment based on known
process parameters. The EPA is proposing to require that sources keep
records of this information to ensure that there is adequate
information to allow the EPA to determine the severity of any failure
to meet a standard, and to provide data that may document how the
source met the general duty to minimize emissions when the source has
failed to meet an applicable standard.
We are also proposing to revise the table 1 to subpart EEE entry
for 40 CFR 63.10 by removing the applicability of 40 CFR
63.10(b)(2)(iv)(B), which requires sources to record actions to
minimize emissions and record corrective actions. This requirement is
now applicable by reference to 40 CFR 63.1211(e).
3. Emergency Safety Vent Operating Plan
We are proposing revisions to the emergency safety vent openings
provisions to remove the requirement for an emergency safety vent
operating plan in 40 CFR 63.1206(c)(4)(ii) and bolster the associated
reporting requirements. With the elimination of the exemption for
periods of malfunction, affected units are subject to an emission
standard during openings of emergency safety events that occur outside
of periods of startup and shutdown. The applicability of a standard
during such events will ensure that sources have ample incentive to
plan for and achieve compliance and thus emergency safety vent
operating plans are no longer necessary.
4. Electronic Reporting
The EPA is proposing that owners or operators of hazardous waste
combustor facilities submit electronic copies of required notices of
intent to comply (NIC), notifications of compliance (NOC),
notifications of changes that may adversely affect compliance,
compliance progress reports, excessive emissions and continuous
monitoring system performance reports and summary reports, performance
test reports, performance evaluation reports, and periodic SSM reports
through the EPA's Central Data Exchange (CDX) using the Compliance and
Emissions Data Reporting Interface (CEDRI). A description of the
electronic data submission process is provided in the memorandum
Electronic Reporting Requirements for New Source Performance Standards
(NSPS) and National Emission Standards for Hazardous Air Pollutants
(NESHAP) Rules, available in the docket for this action. The proposed
rulemaking requires that the owner or operator submit performance test
results collected using test methods that are supported by the EPA's
Electronic Reporting Tool (ERT) as listed on the ERT website \6\ at the
time of the test in the format generated through the use of the ERT or
an electronic file consistent with the xml schema on the ERT website,
and it requires that the owner or operator submit other performance
test results in portable document format (PDF) using the attachment
module of the ERT. Similarly, the proposed rulemaking requires the
owner or operator to submit performance evaluation results of
continuous emissions monitoring systems (CEMS) measuring relative
accuracy test audit (RATA) pollutants that are supported by the ERT at
the time of the test in the format generated through the use of the ERT
or an electronic file consistent with the xml schema on the ERT
website, and it requires that the owner or operator submit other
performance evaluation results in PDF using the attachment module of
the ERT. The proposed rulemaking requires the owner or operator to
submit NOC, NIC, compliance progress reports, excessive emissions and
continuous monitoring system performance reports and summary reports,
periodic SSM reports, and notifications of changes that may adversely
affect compliance as a PDF upload in CEDRI.
---------------------------------------------------------------------------

\6\ <a href="https://www.epa.gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert">https://www.epa.gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert</a>.
---------------------------------------------------------------------------

Additionally, the EPA has identified two broad circumstances in
which electronic reporting extensions may be provided. These
circumstances are: (1) outages of the EPA's CDX or CEDRI which preclude
an owner or operator from accessing the system and submitting required
reports, and (2) force majeure events, which are defined as events that
will be or have been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevent an owner or operator from complying with
the requirement to submit a report electronically. Examples of force
majeure events are acts of nature, acts of war or terrorism, or
equipment failure or safety hazards beyond the control of the facility.
The EPA is providing these potential extensions to protect owners or
operators from noncompliance in cases where they cannot successfully
submit a report by the reporting deadline for reasons outside of their
control. In both circumstances, the decision to accept the claim of
needing additional time to report is within the discretion of the
Administrator, and reporting should occur as soon as possible.
The electronic submittal of the reports addressed in this proposed
rulemaking will increase the usefulness of the data contained in those
reports, is in keeping with current trends in data availability and
transparency, will further assist in the protection of public health
and the environment, will improve compliance by facilitating the
ability of regulated facilities to demonstrate compliance with
requirements and by facilitating the ability of delegated State, local,
Tribal, and territorial air agencies and the EPA to assess and
determine compliance, and will ultimately reduce burden on regulated
facilities, delegated air agencies, and the EPA. Electronic reporting
also eliminates paper-based, manual processes, thereby saving time and
resources, simplifying data entry, eliminating redundancies, minimizing
data reporting errors, and providing data quickly and accurately to the
affected facilities, air agencies, the EPA, and the public. Moreover,
electronic reporting is consistent with the EPA's plan \7\ to implement
Executive Order 13563 and is in keeping with the EPA's agency-wide
policy \8\ developed in response to the White House's Digital
Government Strategy.\9\ For more information on the benefits of
electronic reporting, see the memorandum Electronic Reporting
Requirements for New Source Performance Standards (NSPS) and National
Emission Standards for

[[Page 59873]]

Hazardous Air Pollutants (NESHAP) Rules, referenced earlier in this
section.
---------------------------------------------------------------------------

\7\ EPA's Final Plan for Periodic Retrospective Reviews, August
2011. Available at: <a href="https://www.regulations.gov/document?D=EPA-HQ-OA-2011-0156-0154">https://www.regulations.gov/document?D=EPA-HQ-OA-2011-0156-0154</a>.
\8\ E-Reporting Policy Statement for EPA Regulations, September
2013. Available at: <a href="https://www.epa.gov/sites/production/files/2016-03/documents/epa-ereporting-policy-statement-2013-09-30.pdf">https://www.epa.gov/sites/production/files/2016-03/documents/epa-ereporting-policy-statement-2013-09-30.pdf</a>.
\9\ Digital Government: Building a 21st Century Platform to
Better Serve the American People, May 2012. Available at: <a href="https://obamawhitehouse.archives.gov/sites/default/files/omb/egov/digital-government/digital-government.html">https://obamawhitehouse.archives.gov/sites/default/files/omb/egov/digital-government/digital-government.html</a>.
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5. Technical Correction
On March 20, 2023, 40 CFR part 63, subpart EEE was updated to
remove the requirement for Administrator approval to use EPA Method 23
in compliance demonstrations for PCDD/PCDF, reflecting revisions to EPA
Method 23 made in March 2023.\10\ The reference to requiring
Administrator approval for such measurements in 40 CFR
63.1207(f)(1)(xv) was inadvertently retained in the rule, and so we
propose to remove the requirement and reserve 40 CFR 63.1207(f)(1)(xv).
---------------------------------------------------------------------------

\10\ 88 FR 16732 (March 20, 2023).
---------------------------------------------------------------------------

B. What compliance dates are we proposing, and what is the rationale
for the proposed compliance dates?

The EPA is proposing to allow 180 days from the date of the final
rule for compliance with the malfunction exemption removal, emergency
safety vent operating plan removal, recordkeeping and reporting and
General Provisions revisions, and electronic reporting requirements
other than performance test and performance evaluation reports. The EPA
is proposing to allow 90 days from the date of the final rule for
compliance with electronic submission of performance test and
performance evaluation results. Because the proposed technical
correction is non-substantive, the EPA is proposing to make it
effective immediately upon promulgation of the final rule.
The EPA is proposing changes that affect ongoing compliance for
this subpart, namely removing the provisions that provide an exemption
from the requirements to meet the standard during periods of
malfunction, removing the requirement for an emergency safety vent
operating plan, adding electronic reporting provisions, and updating
recordkeeping and reporting requirements and General Provisions
applicability in keeping with the proposed revisions. Our experience
with other similar industries shows that such facilities generally
require a period of 180 days to read and understand the amended rule
requirements, to evaluate their operations for any changes needed to
meet the revised requirements, and to update their operations to
reflect their revised requirements.
In contrast, the EPA is proposing no changes to the content of
performance test and performance evaluation reports, only the method of
reporting. Our experience with requiring electronic reporting of
performance tests and performance evaluations in other industries shows
that as the ERT has been in use by source testing companies since 2004,
less time is necessary for its implementation, and that facilities
generally require a period of 90 days to understand and become familiar
with the process of submitting performance test and performance
evaluation results electronically through the EPA's CEDRI. Accordingly,
we propose that 90 days would be sufficient time for facilities with
hazardous waste combustors to complete these tasks.

IV. Summary of Cost, Environmental, and Economic Impacts

A. What are the affected sources?

The hazardous waste combustor source category comprises
incinerators, cement kilns, lightweight aggregate kilns, solid fuel
boilers, liquid fuel boilers, and hydrochloric acid production furnaces
that combust hazardous waste. Currently, the EPA has identified 177
hazardous waste combustors at 96 facilities owned by 82 corporate
entities. Of these, 70 are incinerators, 67 are liquid fuel boilers, 17
are hydrochloric acid production furnaces, 14 are cement kilns, 7 are
solid fuel boilers, and 2 are lightweight aggregate kilns. We estimate
that four new hazardous waste combustors may begin operations in the
next five years.

B. What are the air quality impacts?

We do not anticipate that the proposed amendments to this subpart
will impact air quality. The addition of electronic reporting
provisions, amendments to the emergency safety vent provisions, and
correction of inadvertent errors do not affect the stringency of the
standards in 40 CFR part 63, subpart EEE. Because malfunctions are, by
definition, not reasonably preventable, we do not expect the removal of
the emissions limit exemption for periods of malfunction to impact
hazardous air pollutant emissions or, subsequently, air quality.

C. What are the cost impacts?

The EPA estimated costs for this proposed action based on the
results of the analysis for information collection activities, as
presented in the Paperwork Reduction Act (PRA) section, Economic Impact
Analysis memorandum, and accompanying Information Collection Request
(ICR) documents in the docket. The EPA estimated the incremental
industry costs of the rule to be $2,600 per unit in the first year and
$840 in each of the subsequent years. Total incremental industry costs
of the rule are estimated to be $470,000 in the first year and $150,000
in each of the subsequent years. These costs are small relative to the
estimated revenue of the hazardous waste treatment and disposal
industry (approximately $9 billion in 2021).

D. What are the economic impacts?

Because of the low costs, relatively small number of affected
existing units (fewer than 200) and because the EPA anticipates 4
affected new sources in the next 5 years, the EPA expects minimal
economic impacts under the final rule.

E. What are the benefits?

The proposed amendments require electronic submittal of performance
tests, deviation reports, and annual compliance reports, which will
streamline reporting for affected sources and increase the usefulness
of the data and improve data accessibility for the public. The
electronic reporting requirements will, therefore, further assist in
the protection of public health and the environment and will ultimately
result in less burden on the regulated community. No air quality
benefits are expected, quantified, or monetized.

F. What analysis of environmental justice did we conduct?

For purposes of analyzing regulatory impacts, the EPA relies upon
its June 2016 ``Technical Guidance for Assessing Environmental Justice
in Regulatory Analysis,'' which provides recommendations that encourage
analysts to conduct the highest quality analysis feasible, recognizing
that data limitations, time, resource constraints, and analytical
challenges will vary by media and circumstance. The Technical Guidance
states that a regulatory action may involve potential EJ concerns if it
could: (1) create new disproportionate impacts on communities with EJ
concerns; (2) exacerbate existing disproportionate impacts on
communities with EJ concerns; or (3) present opportunities to address
existing disproportionate impacts on communities with EJ concerns
through this action under development.
The EPA's EJ technical guidance states that ``[t]he analysis of
potential EJ concerns for regulatory actions should address three
questions: (A) Are there potential EJ concerns associated with
environmental stressors affected by the regulatory action for
population groups of concern in the baseline? (B) Are there potential
EJ concerns associated with environmental stressors affected by the
regulatory action for population groups of concern for the regulatory
option(s)

[[Page 59874]]

under consideration? (C) For the regulatory option(s) under
consideration, are potential EJ concerns created or mitigated compared
to the baseline?'' \11\
---------------------------------------------------------------------------

\11\ Technical Guidance for Assessing Environmental Justice in
Regulatory Analysis, U.S. EPA, June 2016. Section 3--Key Analytic
Considerations, page 11. Available at: <a href="https://www.epa.gov/environmentaljustice/technical-guidance-assessing-environmental-justice-regulatory-analysis">https://www.epa.gov/environmentaljustice/technical-guidance-assessing-environmental-justice-regulatory-analysis</a>.
---------------------------------------------------------------------------

The environmental justice analysis is presented for the purpose of
providing the public with as full as possible an understanding of the
potential impacts of this proposed action. The EPA notes that analysis
of such impacts is distinct from the determinations proposed in this
action under CAA section 112, which are based solely on the statutory
factors the EPA is required to consider under that section.
To examine the potential for any EJ concerns that might be
associated with HWC NESHAP facilities, we performed a proximity
demographic analysis, which is an assessment of individual demographic
groups of the populations living within 5 km (~3.1 miles) and 50 km
(~31 miles) of the facilities. The EPA then compared the data from this
analysis to the national average for each of the demographic groups. It
should be noted that proximity to affected facilities does not indicate
that any exposures or impacts will occur and should not be interpreted
as a direct measure of exposure or impact. This limits the usefulness
of proximity analyses when attempting to answer questions from EPA's EJ
Technical Guidance.
The results show that for populations within 5 km of the 96
hazardous waste combustor facilities, the following demographic groups
were above the national average: Black (19 percent versus 12 percent
nationally), Hispanic/Latino (21 percent versus 19 percent nationally),
people age 0 to 17 years (24 percent versus 22 percent nationally),
people living below the poverty level (19 percent versus 13 percent
nationally), people below two times the poverty level (38 percent
versus 29 percent nationally), and people over the age of 25 without a
high school diploma (15 percent versus 12 percent nationally).
The results show that for populations within 50 km of the 96
hazardous waste combustor facilities, the percent of the population
that is Black is above the national average (14 percent versus 12
percent nationally).
A summary of the proximity demographic assessment performed is
included as Table 2 of this preamble. The methodology and the results
of the demographic analysis are presented in the document titled
Analysis of Demographic Factors for Populations Living Near Hazardous
Waste Combustor NESHAP Facilities, which is available in the docket for
this action.

Table 2--Proximity Demographic Assessment Results for Hazardous Waste Combustors
----------------------------------------------------------------------------------------------------------------
Nationwide Population Population
Demographic group average for within 50 km of within 5 km of
reference 96 facilities 96 facilities
----------------------------------------------------------------------------------------------------------------
Total Population.......................................... 329,824,950 55,520,566 1,772,399
----------------------------------------------------------------------------------------------------------------
Race and Ethnicity by Percent
----------------------------------------------------------------------------------------------------------------
White..................................................... 60 62 53
Black..................................................... 12 14 19
American Indian........................................... 0.6 0.3 0.3
Hispanic or Latino (includes white and nonwhite).......... 19 14 21
Other and Multiracial..................................... 9 8 7
----------------------------------------------------------------------------------------------------------------
Age by Percent
----------------------------------------------------------------------------------------------------------------
Age 0 to 17 years......................................... 22 22 24
Age 18 to 64 years........................................ 62 62 62
Age >=65 years............................................ 16 16 14
----------------------------------------------------------------------------------------------------------------
Income by Percent
----------------------------------------------------------------------------------------------------------------
Below Poverty Level....................................... 13 12 19
Below 2x Poverty Level.................................... 29 28 38
----------------------------------------------------------------------------------------------------------------
Education by Percent
----------------------------------------------------------------------------------------------------------------
Over Age 25 and without a High School Diploma............. 12 10 15
----------------------------------------------------------------------------------------------------------------
Linguistically Isolated by Percent
----------------------------------------------------------------------------------------------------------------
Linguistically Isolated................................... 5 4 5
----------------------------------------------------------------------------------------------------------------
Notes:
Nationwide population and demographic percentages are based on Census' 2016-2020 American Community Survey 5-
year block group averages and include Puerto Rico. The total population counts are based on the 2020 Decennial
Census block populations. To avoid double counting, the ``Hispanic or Latino'' category is treated as a
distinct demographic category. A person who identifies as Hispanic or Latino is counted as Hispanic or Latino,
regardless of race.

G. What analysis of children's environmental health did we conduct?

Because the EPA does not expect this action to impact air quality,
this action is not relevant to human health and the EPA's Policy on
Children's Health does not apply. This action also does not concern an
environmental health risk or safety risk, so Executive Order 13045:
Protection of Children from Environmental Health Risks and Safety Risks
does not apply.

[[Page 59875]]

V. Request for Comments

We solicit comments on this proposed action. The EPA has attempted
to ensure that the provisions we are proposing to eliminate are
inappropriate, unnecessary, or redundant in the absence of the
malfunction exemption. We are specifically seeking comment on whether
we have successfully done so. The EPA is also soliciting comment on
whether a work practice standard for periods of malfunction for reasons
of safety should be set for hazardous waste combustors and, if yes,
what the work practice standard should comprise.
The EPA also solicits comment on the proposed compliance dates, and
we specifically request submission of information from sources in this
source category regarding specific actions that would need to be
undertaken to comply with the proposed amended requirements and the
time needed to make the adjustments for compliance.

VI. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review

This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and is
therefore not subject to a requirement for Executive Order 12866
review.

B. Paperwork Reduction Act (PRA)

The information collection activities in this proposed rulemaking
have been submitted for approval to the Office of Management and Budget
(OMB) under the PRA. The Information Collection Request (ICR) document
that the EPA prepared has been assigned EPA ICR number 2803.01. You can
find a copy of the ICR in the docket for this proposed rulemaking, and
it is briefly summarized here.
The goal of this information collection request (ICR) is to collect
new monitoring, reporting and recordkeeping data from hazardous waste
combustors (HWC) subject to emission standards under 40 CFR part 63,
subpart EEE, National Emission Standards for Hazardous Air Pollutants
from Hazardous Waste Combustors. The key revisions to this subpart are
the removal of exemptions for emissions during malfunction periods in
response to Sierra Club v. EPA, 551 F.3d 1019, 1028 (D.C. Cir. 2008)
and the addition of e-reporting using the EPA's Compliance and
Emissions Data Reporting Interface (CEDRI) to replace physically
mailing many of the reports and notifications required under this
subpart. These revisions require modifications to the monitoring,
reporting, and recordkeeping requirements of the rule. The information
collected in this ICR will be used to ensure compliance with this
subpart. All information submitted to the agency in response to the ICR
will be managed in accordance with applicable laws and the EPA's
regulations governing treatment of confidential business information at
40 CFR part 2, subpart B. Any information determined to constitute a
trade secret will be protected under 18 U.S.C. 1905.
Respondents/affected entities: The respondents to the recordkeeping
and reporting requirements are owners or operators of hazardous waste
combustors subject to emission standards under 40 CFR part 63, subpart
EEE.
Respondent's obligation to respond: Mandatory under the National
Emission Standards for Hazardous Air Pollutants from Hazardous Waste
Combustors (40 CFR part 63, subpart EEE).
Estimated number of respondents: 96.
Frequency of response: Semiannually, quarterly.
Total estimated burden: 2,560 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $257,000 (per year), includes $0 annualized
capital or operation and maintenance costs.
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 the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rulemaking. The EPA will respond to any ICR-
related comments in the final rule. You may also send your ICR-related
comments to OMB's Office of Information and Regulatory Affairs using
the interface at <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this
particular information collection by selecting ``Currently under
Review--Open for Public Comments'' or by using the search function. OMB
must receive comments no later than August 23, 2024.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
small entities subject to the requirements of this action are small
businesses in the NESHAP and industrial source categories listed in
Table 1 operating hazardous waste combustors. The Agency has determined
that, in the 2025 analysis year, 9 potentially affected small entities
operating 18 units at 9 facilities may experience an impact of less
than 1 percent of revenue under the proposed rulemaking. Details of
this analysis are presented in the document titled Economic Impact
Analysis for the National Emission Standards for Hazardous Air
Pollutants from Hazardous Waste Combustors Malfunction and Electronic
Reporting Amendments.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. While this action
creates an enforceable duty on the private sector, the cost does not
exceed $100 million or more.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.

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

This action does not have Tribal implications as specified in
Executive Order 13175. The EPA is not aware of any hazardous waste
combustor unit owned or operated by Tribal governments. This action
will not have substantial direct costs or impacts on the relationship
between the Federal Government and Indian Tribes or on the distribution
of power and responsibilities between the Federal Government and Indian
Tribes, as specified in Executive Order 13175. Thus, Executive Order
13175 does not apply to the proposed amendments.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

The EPA interprets Executive Order 13045 as applying only to those

[[Page 59876]]

regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order.
Therefore, this action is not subject to Executive Order 13045
because it does not concern an environmental health risk or safety
risk. Since this action does not concern human health, EPA's Policy on
Children's Health also does not apply.

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

This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All

The EPA believes that the human health or environmental conditions
that exist prior to this action result in or have the potential to
result in disproportionate and adverse human health or environmental
effects on communities with environmental justice concerns. As stated
in section IV.F of this preamble, we performed a proximity demographic
analysis for 96 existing facilities with hazardous waste combustors
that are currently subject to 40 CFR part 63, subpart EEE. A total of
1.8 million people live within 5 kilometers (approximately 0.1 miles)
of these facilities. The proportion of demographic groups living near
these hazardous waste combustors are above the national average for
Black, Hispanic or Latino, people aged 0 to 17 years, people below the
poverty level, people below two times the poverty level, and people
over the age of 25 and without a high school diploma. See section IV.F
of this preamble for further results of the analysis.
The EPA believes that this action is not likely to change existing
disproportionate and adverse effects on communities with environmental
justice concerns. The EPA does not anticipate that the proposed
amendments to the subpart will impact air quality because the EPA does
not expect any of the proposed provisions to affect hazardous air
pollutant emissions, and so is not likely to change existing
disproportionate and adverse effects on communities with environmental
justice concerns. Because malfunctions are, by definition, not
reasonably preventable, we do not expect the removal of the emissions
limit exemption for periods of malfunction to impact hazardous air
pollutant emissions or, subsequently, air quality. The addition of
electronic reporting provisions, amendments to the emergency safety
vent provisions, and correction of inadvertent errors are primarily
changes to recordkeeping and reporting requirements, and so do not
impact hazardous air pollutant emissions.
The information supporting this Executive Order review is contained
in section IV.F of this preamble. The demographic analysis is presented
in the document titled Analysis of Demographic Factors for Populations
Living Near Hazardous Waste Combustor NESHAP Facilities, which is
available in the docket for this action, EPA-HQ-OAR-2004-0022.

List of Subjects in 40 CFR Part 63

Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.

Michael S. Regan,
Administrator.
[FR Doc. 2024-15840 Filed 7-23-24; 8:45 am]
BILLING CODE 6560-50-P

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