Rule2025-11446
Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units Review
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 30, 2025
Effective
August 29, 2025
Issuing agencies
Environmental Protection Agency
Abstract
This action finalizes the periodic review by the U.S. Environmental Protection Agency (EPA) of the emissions standards and other requirements for Other Solid Waste Incineration (OSWI) units in the OSWI New Source Performance Standards (NSPS) and Emission Guidelines (EG). The EPA is finalizing applicability-related and definitional changes; changes to OSWI subcategories and the standards for the new subcategories; changes to the startup, shutdown, and malfunction (SSM) provisions; and changes to testing, monitoring, recordkeeping, and reporting requirements. We are also making other miscellaneous technical and editorial changes to the regulatory text.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 123 (Monday, June 30, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 123 (Monday, June 30, 2025)]
[Rules and Regulations]
[Pages 27910-27971]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11446]
[[Page 27909]]
Vol. 90
Monday,
No. 123
June 30, 2025
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 60
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration Units
Review; Final Rule
Federal Register / Vol. 90 , No. 123 / Monday, June 30, 2025 / Rules
and Regulations
[[Page 27910]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2003-0156; FRL-7547-02-OAR]
RIN 2060-AU60
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration Units
Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action finalizes the periodic review by the U.S.
Environmental Protection Agency (EPA) of the emissions standards and
other requirements for Other Solid Waste Incineration (OSWI) units in
the OSWI New Source Performance Standards (NSPS) and Emission
Guidelines (EG). The EPA is finalizing applicability-related and
definitional changes; changes to OSWI subcategories and the standards
for the new subcategories; changes to the startup, shutdown, and
malfunction (SSM) provisions; and changes to testing, monitoring,
recordkeeping, and reporting requirements. We are also making other
miscellaneous technical and editorial changes to the regulatory text.
DATES: This final rule is effective August 29, 2025. The incorporation
by reference (IBR) of certain publications listed in the regulation is
approved by the Director of the Federal Register as of August 29, 2025.
ADDRESSES: The Environmental Protection Agency (EPA) has established a
docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2003-0156.
All documents in the docket are listed on the <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website. Although listed, some information is not
publicly available, e.g., Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
FOR FURTHER INFORMATION CONTACT: For questions about this final action,
contact Felica Davis, Ph.D., Sector Policies and Programs Division
(E143-05), Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, 109 T.W. Alexander Drive, P.O. Box
12055, Research Triangle Park, North Carolina, 27711; telephone number:
(919) 541-4857; and email address: <a href="/cdn-cgi/l/email-protection#026663746b712c64676e6b6163426772632c656d74"><span class="__cf_email__" data-cfemail="ef8b8e99869cc1898a83868c8eaf8a9f8ec1888099">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
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:
ACI air curtain incinerator
ANSI American National Standards Institute
AOGA Alaska Oil and Gas Association
ASME American Society of Mechanical Engineers
AWC alternative waste characterization
Cd cadmium
CAA Clean Air Act
CBI Confidential Business Information
CDX Central Data Exchange
CEDRI Compliance and Emissions Data Reporting Interface
CEMS continuous emissions monitoring systems
CFR Code of Federal Regulations
CISWI commercial and industrial solid waste incineration
CO carbon monoxide
CO<INF>2</INF> carbon dioxide
CRA Congressional Review Act
D.C.Circuit United States Court of Appeals for the District of
Columbia Circuit
DCOT digital camera opacity technique
EG emission guidelines
EPA Environmental Protection Agency
ERT Electronic Reporting Tool
FR Federal Register
HCl hydrochloric acid
Hg mercury
HMIWI hospital, medical, and infectious waste incineration
ICR Information Collection Request
IWI institutional waste incineration
MACT maximum achievable control technology
MSW municipal solid waste
MWC municipal waste combustor
NESHAP national emission standards for hazardous air pollutants
ng/dscm nanograms per dry standard cubic meter
NO nitric oxide
NO<INF>2</INF> nitrogen dioxide
NO<INF>X</INF> oxides of nitrogen
NSPS New Source Performance Standards
NTTAA National Technology Transfer and Advancement Act
O<INF>2</INF> oxygen
OSWI other solid waste incineration
Pb lead
PDF portable document format
PM particulate matter
ppm parts per million
ppmvd parts per million dry (volume basis)
PRA Paperwork Reduction Act
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
SMCD substitute means of compliance demonstration
SO<INF>2</INF> sulfur dioxide
SRI small remote incinerator
SSI sewage sludge incinerator
SSM startup, shutdown, and malfunction
TEQ toxic equivalency factor
TMB total mass basis
TPD tons per day
tpy tons per year
[micro]g/dscm micrograms per dry standard cubic meter
UMRA Unfunded Mandates Reform Act
VCS voluntary consensus standards
VSMWC very small municipal waste combustion
XML extensible markup language
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Does this action apply to me?
B. How do I obtain a copy of this document and other related
information?
C. Judicial Review and Administrative Reconsideration
II. Background
A. What is the statutory authority and regulatory history for
this action?
B. What changes did we propose for the OSWI source category in
our August 31, 2020, proposal and subsequent notices?
C. What outreach and engagement did we conduct?
III. Summary of Final Action
A. What are the final rule amendments based on the CAA section
129(a)(5) review?
B. What are the final rule changes involving the applicability
of OSWI requirements?
C. What are the final rule amendments addressing OSWI
subcategories and related MACT floor redeterminations?
D. What are the final rule amendments addressing other
definitions for the OSWI category?
E. What are the final rule amendments addressing emissions
during periods of SSM?
F. What are the final rule amendments addressing testing,
monitoring, and reporting requirements?
G. What are the effective and compliance dates of the standards?
IV. Public Comments and Responses
A. What key comments did we receive on the applicability of OSWI
requirements, and what are our responses?
B. What key comments did we receive on the OSWI subcategories
and related MACT floor redeterminations?
C. What key comments did we receive on other amendments, and
what are our responses?
D. What key comments did we receive on effective and compliance
dates?
V. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected facilities?
B. What are the air quality impacts?
C. What are the cost and economic impacts?
D. What are the benefits?
VI. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review and
Executive
[[Page 27911]]
Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA) and
1 CFR Part 51
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Categories and entities potentially affected by this final action
are those that operate OSWI units. OSWI units are not commercial and
industrial solid waste incineration units (CISWI), hazardous waste
combustors (HWC), hospital/medical/infectious waste incinerators
(HMIWI), sewage sludge incinerators (SSI), or other incinerators
regulated elsewhere under section 129 of the CAA. Although there is no
specific North American Industry Classification System (NAICS) code for
OSWI units, the units subject to the New Source Performance Standards
(NSPS) and Emission Guidelines (EG) for OSWI, hereinafter referred to
as ``the OSWI standards,'' may be operated by the categories of sources
listed in table 1 of this preamble:
Table 1--Industrial Source Categories Affected by This Action
----------------------------------------------------------------------------------------------------------------
Source category NAICS code \1\ Examples of potentially regulated entities
----------------------------------------------------------------------------------------------------------------
Any state, local, or tribal government 562213, 92411 Solid waste combustion units burning
using a very small municipal waste municipal solid waste (MSW).
combustion (VSMWC) unit.
Any correctional institutions using an 922, 7213 Correctional institutions.
institutional waste incineration (IWI)
unit.
Any nursing or residential care facilities 623 Any nursing care, residential intellectual
using an OSWI unit. and developmental disability, residential
mental health and substance abuse, or
assisted living facilities.
Any Federal government agency using an OSWI 928, 7121 Department of Defense (labs, military
unit. bases, munition facilities) and National
Parks.
Any educational institution using an OSWI 6111, 6112, 6113 Primary and secondary schools,
unit. universities, colleges, and community
colleges.
Any church or convent using an OSWI unit... 8131 Churches and convents.
Any civic or religious organization using 8134 Civic associations and fraternal
an OSWI unit. associations.
Any industrial or commercial facility using 114, 211, 212, 221, 486 Oil and gas exploration operations;
a VSMWC unit. mining; pipeline operators; utility
providers; fishing operations.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your entity is regulated by this action,
you should carefully examine the applicability criteria found in 40
Code of Federal Regulations (CFR) 60.2885, 60.2981, and 60.2991. If you
have questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section of this preamble, your delegated authority,
or your EPA Regional representative listed in 40 CFR 60.4 (General
Provisions).
B. How do I obtain a copy of this document and other related
information?
The docket number for this final action regarding the OSWI EG and
NSPS is Docket ID No. EPA-HQ-OAR-2003-0156. In addition to being
available in the docket, an electronic copy of this final action will
also be available on the internet. Following signature by the EPA
Administrator, the EPA will post a copy of this final action at:
<a href="https://www.epa.gov/stationary-sources-air-pollution/other-solid-waste-incinerators-oswi-new-source-performance">https://www.epa.gov/stationary-sources-air-pollution/other-solid-waste-incinerators-oswi-new-source-performance</a>. Following publication in the
Federal Register (FR), the EPA will post the FR version and key
technical documents at this same website.
C. Judicial Review and Administrative Reconsideration
Under Clean Air Act (CAA) section 307(b)(1), judicial review of
this final action is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
(the D.C. Circuit) by August 29, 2025. Under CAA section 307(b)(2), the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by the EPA to
enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that only an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review. This section also
provides a mechanism for the EPA to reconsider the rule if the person
raising an objection can demonstrate to the Administrator that it was
impracticable to raise such objection within the period for public
comment or if the grounds for such objection arose after the period for
public comment (but within the time specified for judicial review) and
if such objection is of central relevance to the outcome of the rule.
Any person seeking to make such a demonstration should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW,
Washington, DC 20460.
II. Background
A. What is the statutory authority and regulatory history for this
action?
Section 129 of the CAA, entitled ``Solid Waste Combustion,''
requires the EPA to develop and adopt NSPS and EG for solid waste
incineration units, in accordance with CAA sections 129 and 111.
Section 129(a) of the CAA requires the EPA to establish NSPS for new
[[Page 27912]]
sources, and CAA section 129(b) requires the EPA to establish
procedures for states to submit plans for implementing EG for existing
sources. The EPA initially proposed NSPS and EG for OSWI units on
December 9, 2004 (69 FR 71472), and finalized them on December 16, 2005
(70 FR 74870), at 40 CFR part 60, subparts EEEE and FFFF. The 2005 OSWI
standards applied to an incineration unit with a capacity of less than
35 TPD burning MSW (as defined in 40 CFR 60.2977 of subpart EEEE, and
40 CFR 60.3078 of subpart FFFF) or an incineration unit located at an
institutional facility burning institutional waste (as defined in 40
CFR 60.2977 of subpart EEEE and 40 CFR 60.3078 of subpart FFFF)
generated at that facility. The 2005 rule has yet to be fully
implemented for existing sources because most states have not developed
and submitted state plans for approval and EPA has not promulgated an
implementing Federal plan. Following that final action, the
Administrator received a petition for reconsideration of the OSWI
standards, and on June 28, 2006, the EPA announced reconsideration of
the final OSWI rules (71 FR 36726). After consideration of comments and
information received through the reconsideration process, we concluded
that no additional changes were necessary to the final OSWI rules (72
FR 2620, January 22, 2007).
In addition to the administrative reconsideration request, some
entities petitioned for judicial review of the 2005 OSWI standards. The
judicial review proceedings were initially stayed and, ultimately, the
EPA requested a voluntary remand of the OSWI standards. By an order
dated April 21, 2016, the D.C. Circuit granted the EPA's request for a
remand. Order, Sierra Club v. EPA, No. 06-1066 (D.C. Cir. April 21,
2016). The remand was requested to allow the EPA to consider potential
revisions, if any, to the OSWI standards that might be appropriate in
light of certain legal developments, including 2007 and 2008 decisions
from the D.C. Circuit.\1\
---------------------------------------------------------------------------
\1\ Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007)); NRDC v.
EPA, 489 F.3d 1250 (D.C. Cir. 2007); Sierra Club v. EPA, 551 F.3d
1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------
The OSWI NSPS establishes maximum achievable control technology
(MACT) emission limits for new or modified OSWI units. For new sources,
the CAA requires that MACT limits be no less stringent than the
emissions control achieved in practice by the best-controlled similar
unit. The OSWI EG establishes MACT emission limits for existing OSWI
units. For existing sources, the CAA requires that MACT limits be no
less stringent than the average emissions limitation achieved by the
best-performing 12 percent of units in a source category. The EPA must
determine some measure of the average emissions limitation achieved by
the best-performing 12 percent of units to form the floor regulatory
option.
Under the 2005 OSWI standards, the term ``OSWI unit'' means either
a very small municipal waste combustion (VSMWC) unit or an
institutional waste incineration (IWI) unit. A VSMWC unit is any
municipal waste combustion unit that has the capacity to combust less
than 35 tons per day (TPD) of municipal solid waste (MSW) or refuse-
derived fuel. An IWI unit is any combustion unit that combusts
institutional waste and is a distinct operating unit of the
institutional facility, such as a university or prison, that generated
the waste.
As required by section 129 of the CAA, the OSWI NSPS and EG rules
set emission standards for nine pollutants: cadmium (Cd), carbon
monoxide (CO), dioxins/furans (D/F), hydrochloric acid (HCl), lead
(Pb), mercury (Hg), oxides of nitrogen (NO<INF>X</INF>), particulate
matter (PM), and sulfur dioxide (SO<INF>2</INF>). They also established
opacity standards.
CAA section 129(a)(5) requires the EPA to review and, if
appropriate, revise the requirements for solid waste incineration units
no later than five years following the initial promulgation of any
performance standards and at periodic five year intervals after that.
However, in 2018, the D.C. Circuit found that the EPA had failed to
undertake the periodic review of the OSWI standards and placed the EPA
on a schedule to issue a proposed rulemaking and a final rulemaking.\2\
The EPA published a proposed rule on August 31, 2020, for the OSWI NSPS
and EG rules that addressed the requisite CAA section 129(a)(5)
periodic review (85 FR 54178, hereafter referred to as the ``2020
Proposed Rule''). The EPA subsequently published three actions to
address issues raised in the 2020 Proposed Rule: (1) withdrawal of
certain provisions included in the 2020 Proposed Rule which proposed
modifying the definition of ``municipal waste combustion unit,'' by
removing pyrolysis/combustion units from the definition (88 FR 36524,
June 5, 2023, hereafter referred to as the ``2023 Withdrawal''); (2) a
final rule promulgating certain provisions for OSWI air curtain
incinerators (ACI) to remove the title V permitting requirements for
ACIs that only burn wood waste, clean lumber, yard waste, or a mixture
of those, and are not located at title V major sources or subject to
title V for other reasons (89 FR 27392, April 17, 2024, hereafter
referred to as the ``2024 ACI Rule''); and (3) a supplemental notice of
proposed rulemaking (SNPRM) to add a definition for ``rudimentary
combustion device'' (89 FR 60342, July 25, 2024, hereafter referred to
as the ``2024 SNPRM'').
---------------------------------------------------------------------------
\2\ Order, Sierra Club v. Wheeler, no. 16-2461 (D.D.C. filed
Sept. 14, 2018) (ordering the EPA publish a notice of proposed
rulemaking by August 21, 2020, and promulgate a final rulemaking by
May 31, 2021); Order Sierra Club v. Wheeler, no. 16-2461 (D.D.C.
filed April 22, 2021) (extending the EPA's deadline for a final
rulemaking to October 31, 2021); Order, Sierra Club v. Wheeler, no.
16-2461 (D.D.C. filed Oct. 14, 2021) (extending the EPA's deadline
for a final rulemaking to March 1, 2024); Order, Sierra Club v.
Wheeler, no. 16-2461 (D.D.C. filed Nov. 7, 2023) (extending the
EPA's deadline to promulgated a final rulemaking to June 30, 2025).
---------------------------------------------------------------------------
B. What changes did we propose for the OSWI source category in our
August 31, 2020, proposal and subsequent notices?
The EPA published the 2020 Proposed Rule in the Federal Register to
address the requisite CAA section 129(a)(5) periodic review (85 FR
54178). We proposed that no new developments in practices, processes,
or control technologies existed for any OSWI units and that it was not
necessary to revise the OSWI standards for new and existing units under
CAA section 129(a)(5). In addition, we proposed some changes to the
OSWI standards that were occasioned by the 2016 voluntary remand of the
OSWI standards (and the legal developments related to that request for
a remand). In accordance with the EPA's general authority under CAA
section 129(a), we proposed: (1) revised subcategories and MACT
standards that better reflect actual emissions test data from OSWI
units and the population of OSWI; (2) changes to applicability
provisions for the EG and NSPS including definitional changes; (3)
revisions to regulatory provisions related to emissions during periods
of startup, shutdown, and malfunction (SSM); (4) testing and monitoring
flexibilities so that VSMWC or IWI units with capacities less than or
equal to 10 TPD can demonstrate compliance with the rule; (5)
provisions for electronic reporting of certain notices and reports; (6)
revisions to recordkeeping and reporting provisions consistent with the
revised testing and monitoring; (7) changes to title V permitting
requirements for air curtain incinerators that burn less than 35 TPD
and burn only only wood waste, clean lumber and yard waste; and (8)
other technical edits, clarifications, and
[[Page 27913]]
revisions intended to improve the understanding of the rules and
improve consistency with other CAA section 129 rules. For a more
detailed discussion of these revisions, see section II.B of the
proposal preamble (85 FR 54178; August 31, 2020).
In the 2020 Proposed Rule, the EPA proposed to change the
applicability of the OSWI standards to remove the reference to
pyrolysis/combustion units from the definition of ``municipal waste
combustion unit.'' At that time, we considered that the reference to a
pyrolysis/combustion unit as a municipal waste combustor (MWC) should
not apply to OSWI units because such units are used to combust
uncontained gases and do not involve the combustion of solid waste as
defined in the OSWI rule.
The EPA published an advanced notice of proposed rulemaking on
September 8, 2021 (86 FR 50296), to gather more details on pyrolysis/
combustion units, including how they are used, the inputs and products
of the processes, and emissions from these processes. In response to
significant adverse comment, the EPA subsequently withdrew the proposed
revisions to the definition of ``municipal waste combustion unit'' (88
FR 36524, June 5, 2023). Accordingly, the EPA will not be taking
additional action related to pyrolysis/combustion units in this action.
The EPA published the 2024 ACI Rule promulgating certain provisions
related to the title V permitting requirements for OSWI air curtain
incinerators (ACI) (89 FR 27392, April 17, 2024). Based on available
data, ACIs that combust less than 35 TPD of wood waste, clean lumber,
and yard waste are commonly located at facilities that would not
otherwise require title V operating permits. Further, these types of
ACIs are typically used temporarily at the locations for things like
land clearing or storm cleanup. The EPA received overwhelming support
from states and industry stakeholders to remove the title V permitting
requirement for ACIs that only burn wood waste, clean lumber, yard
waste, or a mixture of these wastes, and received no adverse comments
on these revisions in the 2020 Proposed Rule. These changes were
finalized, and a subsequent technical correction was published November
14, 2024 (89 FR 89928), to address inadvertent errors in the regulatory
text in order to make the rule consistent with the description in the
April 17, 2024, final rule preamble.
Following the EPA's analysis of comments received after the 2020
Proposed Rule, and discussions with the state of Alaska and Tribes, the
EPA published the 2024 SNPRM on July 25, 2024, which proposed to add a
definition for ``rudimentary combustion device'' to address the unique
issues associated with these units. The EPA proposed to define a
rudimentary combustion device as a combustion device with a capacity
less than or equal to 10 TPD that is designed and constructed without
one or more of the following elements: (1) a stack, chimney, or pipe
designed for the purpose of managing air flow and discharging flue
gases from combustion; (2) mechanical draft to provide air flow; (3)
burners designed to manage the combustion process; (4) an ancillary
power supply to operate; or (5) supplemental fuel burners or nozzles.
Because rudimentary combustion devices lack one or more of these
elements, the EPA proposed the emissions information, limits, and
controls developed for the 2020 Proposed Rule would not be appropriate
for them. Most rudimentary combustion devices are not equipped with
stacks from which to sample emissions during a performance test, and a
stack or extension would be needed in order to perform the testing
required by the OSWI standards. Many of these devices are located
within Native American villages and other remote or difficult to access
areas of the country with limited road access to haul waste to a larger
community for burning or landfilling. As a result, local waste disposal
is the only option available, and these communities face significant
challenges and constraints in addressing this issue. Given the numerous
challenges regarding these units, in the 2024 SNPRM the EPA proposed
postponing development of standards for units that meet the definition
of rudimentary combustion devices at this time.
C. What outreach and engagement did we conduct?
In developing this rule, the EPA conducted outreach activities with
states, Tribes, and communities located near OSWI facilities. In
addition to public comments received, we obtained feedback from
interested parties and evaluated and considered the information
received as we developed this action. In June 2020, the EPA conducted
four pre-proposal informational calls for federally recognized Tribes,
including an overview presentation during the June 25, 2020, National
Tribal Air Association call. On August 31, 2020, the EPA sent an email
notification to stakeholders announcing that the action had been
published with a 45-day comment period and an opportunity to request a
public hearing. In September 2020, the EPA held six consultation
meetings with Tribes including meetings with Northway Village, Qagan
Tayagungin, Louden Tribe, and the Mescalaro Apache Tribe to give an
overview of the OSWI proposal and provide instructions on how and when
comments on the rule should be submitted to the docket (see Docket ID
No. EPA-HQ-OAR-2003-0156). The EPA also conducted four informational
calls on the OSWI rule in September 2020 including an overview at the
Small Business Environmental Assistance Program (SBEAP) Annual
Training, Alaska Air Workgroup call, Tribal Environmental Leaders
Summit call, and an update at the National Tribal Air Association
(NTAA) call. Although a public hearing was not requested, the EPA
continued to seek out additional opportunities for interested parties
to be informed about potential requirements of this action. This
outreach has included a presentation to the Small Business
Environmental Assistance Program on June 5, 2023; regular meetings with
the state of Alaska to discuss the operation of incineration units; and
a presentation on this action during the National Association of Clean
Air Agencies (NACAA) Permitting and New Source Review Committee
meeting. In March 2025, the EPA held several informational calls with
AOGA and industry to discuss their comments submitted on the 2020
Proposed Rule.
III. Summary of Final Action
This action provides the EPA's final determination pursuant to the
requisite CAA section 129(a)(5) periodic review for the OSWI standards
and requirements in the NSPS and EG rules (see section III.A of this
preamble). This action also finalizes applicability-related and
definitional changes, changes to OSWI subcategories, and related MACT
floor redeterminations, as well as several changes from the 2020
Proposed Rule and changes from the 2024 SNPRM (see sections III.B
through D of this preamble). In addition, we are finalizing changes to
the SSM provisions (see section III.E of this preamble). Lastly, we are
finalizing revisions to the testing, monitoring, recordkeeping, and
reporting requirements; and miscellaneous other technical and editorial
changes to the regulatory text (see sections III.F.1 through III.F.4 of
this preamble). The effective and compliance dates for these actions
are discussed in section III.G of this preamble.
[[Page 27914]]
A. What are the final rule amendments based on the CAA section
129(a)(5) review?
After considering the public comments received, we are finalizing
our results of the CAA section 129(a)(5) periodic review for the OSWI
standards as proposed (85 FR 54178). We have determined there are no
developments in practices, processes, or control technologies that
warrant revisions to the OSWI standards and requirements. Consistent
with the 2020 Proposed Rule, we are not revising the OSWI standards and
requirements for new or existing sources based on our review under CAA
section 129(a)(5).
For a detailed discussion of our review pursuant to CAA section
129(a)(5), see section II.A of the preamble to the 2020 Proposed Rule.
Comments on the CAA section 129(a)(5) review and our responses can be
found in section IV of this preamble and in the document, Summary of
Public Comments and Responses for the Standards of Performance for New
Stationary Sources and Emission Guidelines for Existing Sources: Other
Solid Waste Incineration Units Review, which is available in the docket
(see Docket ID No. EPA-HQ-OAR-2003-0156) for this rulemaking.
B. What are the final rule changes involving the applicability of OSWI
requirements?
Although not predicated on the CAA section 129(a)(5) review, in
this rule, we are finalizing certain changes to the OSWI standards. The
EPA proposed several changes involving the applicability requirements
for OSWI in the 2020 Proposed Rule and the 2024 SNPRM. The EPA is
finalizing proposed changes to the applicability of the OSWI standards
following our consideration of comments received on the 2020 Proposed
Rule, the 2024 SNPRM, and data provided by the Alaska Oil and Gas
Association (AOGA) for small remote incinerators (SRIs) located in
Alaska. As discussed below in this section, we are finalizing the
proposed removal of the definition of the term ``collected from'' as
used in the definition of ``municipal solid waste''; the addition of a
new definition for certain small units that were included in the 2024
SNPRM as ``rudimentary combustion units''; and associated edits to the
applicability requirements of 40 CFR 60.2885 and 40 CFR 60.2991.
In the 2020 Proposed Rule, the EPA proposed changes to the
applicability of the OSWI standards. At that time, the EPA intended to
resolve inconsistent definitions between OSWI and other CAA section 129
rulemakings and to update aspects of the OSWI rule based on new data
used to develop revised emission limits for OSWI units with capacity
less than or equal to 10 TPD.
We are finalizing the proposed removal of the definition of the
term ``collected from'' as used in the definition of ``municipal solid
waste'' to place the focus on the source and type or nature of the
waste. The term collected from (as defined in the OSWI rule) means the
transfer of material from the site at which the material is generated
to a separate site where the material is burned. We noted that the 2005
OSWI rule finalized a definition of ``municipal solid waste'' (refuse
and refuse-derived fuel ``collected from'' the general public and from
residential, commercial, institutional, and industrial sources) that
was similar to the definition of ``municipal waste'' provided in CAA
section 129(g)(5), but was interpreted for the purposes of VSMWC
applicability under OSWI, to mean that the municipal waste must be
``collected from'' certain types of sites or from multiple sites.
Specifically, the 2005 OSWI rule stated that ``small incinerators''
that are located at commercial businesses (such as stores, restaurants
and apartments) or industrial sites are not VSMWC units because they do
not burn waste which has been ``collected from'' a site that generated
the waste and transferred to a separate site where the waste is burned
(70 FR 74882). The 2020 Proposed Rule reevaluated this interpretation,
noting that other existing CAA section 129 incinerator rules (such as
the municipal waste combustor (MWC) rules) do not necessarily place the
same emphasis on where the waste is collected.
By removing the definition of ``collected from'', such small
incinerators located at commercial businesses or industrial sites would
no longer be subject to this limitation and would qualify as VSMWC
(provided these units burn more than 30-percent MSW) under OSWI. The
CISWI NSPS and EG currently regulate small remote incinerators (SRIs)
at commercial and industrial facilities that combust at least 30-
percent MSW, but they would now qualify as VSMWC under OSWI in the
final rule. These incinerators are primarily owned by oil and gas
companies and burn municipal-type solid waste that is generated by the
oil and gas workers and is not associated with oil and gas activities.
The EPA's decision to regulate these SRI units located at commercial
businesses under the OSWI standards is discussed further in sections
III.C and IV.A of this preamble.
We are finalizing as proposed new subcategories and revised
emission limits for new and existing OSWI units with capacities less
than or equal to 10 TPD. In the 2020 Proposed Rule, the EPA proposed
new emission standards for OSWI units with capacity less than or equal
to 10 TPD, based on analysis of data collected during the development
of the CISWI rules and data subsequently provided by AOGA for SRI units
located in Alaska (see section III.C of this preamble for further
discussion). In response to the 2020 Proposed Rule's new subcategories
and emission standards for new and existing OSWI units with capacities
less than or equal to 10 TPD, the EPA received numerous comments noting
that it would be nearly impossible for most rural Alaskan communities
to comply with the proposed requirements. Units in rural Alaskan
communities are often very basic in design and function. Commenters
stated that the proposed requirements are inapplicable or impractical
for these types of small units (e.g., burn boxes), which do not have
stacks or other incinerator design elements, such as waste feed or flue
gas systems, heat recovery, and bottom ash systems. Commenters stated
that due to these limitations and other challenges, including the
associated costs of compliance, rural communities operating these units
would be unable to meet the proposed requirements and may be forced to
return to less environmentally friendly waste disposal methods, such as
open burning, barrel burning, or loose filling waste which could also
attract wildlife that may present immediate health and safety risks.
These comments are summarized in detail in the 2024 SNPRM (see section
III, 89 FR 60345-60347).
Subsequent discussions with state and tribal agencies in Alaska
demonstrated that most of these units have a capacity of less than or
equal to 10 TPD, are rudimentary in design and function, and are
generally located in remote areas. These units are not equipped with
stacks with which to sample emissions during performance testing,
likely cannot be physically modified to equip the unit with a stack,
and may be difficult to access for testing due to their physical
location.
Based on this new information, the EPA proposed a new definition
for ``rudimentary combustion devices'' and associated edits to 40 CFR
60.2885 and 40 CFR 60.2991. Units that fall under the definition of
rudimentary combustion devices are not considered VSMWC or IWI, and so
are not required to comply with the emission standards for VSMWC or IWI
(see section III.D of
[[Page 27915]]
this preamble for further discussion). As noted in the 2024 SNPRM, the
EPA does not consider the emissions information, limits, and controls
developed for the proposed OSWI rule to be appropriate for these
devices, which lack one or more of these elements, and is therefore not
setting standards for rudimentary combustion devices in this
rulemaking. Further, these rules do not usurp existing local or state
regulations that apply to these units, which will continue to apply as
they currently do.
Comments on the proposed changes to applicability, including
comments received on the 2024 SNPRM, and our responses can be found in
section IV.A of this preamble and in the document, Summary of Public
Comments and Responses for the Standards of Performance for New
Stationary Sources and Emission Guidelines for Existing Sources: Other
Solid Waste Incineration Units Review, which is available in the docket
(see Docket ID No. EPA-HQ-OAR-2003-0156) for this rulemaking.
C. What are the final rule amendments addressing OSWI subcategories and
related MACT floor redeterminations?
The EPA is finalizing, as proposed, the revisions to the OSWI
subcategories for both new and existing units and associated MACT floor
recalculations included in the 2020 Proposed Rule. For the 2005 OSWI
standards, the EPA lacked emissions data from OSWI units, and the
emission limits were based on information for similar sources in the
HMIWI unit source category, as discussed in the preamble to the
proposed rule (85 FR 54183). During the development of the 2020
Proposed Rule, the EPA collected additional information on two new OSWI
units (constructed after the current OSWI standards were issued) with
capacities greater than 10 TPD and emissions information for certain
existing small remote incineration units located in Alaska that
historically have been regarded as SRIs under CISWI, but which we
proposed to treat as OSWI VSMWC units.
The EPA proposed to reconsider the dividing line between the OSWI
and CISWI standards and to treat these existing units as VSMWC based on
data submitted by AOGA showing that most of these units burn more than
30 percent municipal type solid waste generated by staff/personnel at
commercial or industrial facilities (discussed in section III.B of this
preamble). Because the data indicated that SRI units combust more than
30 percent MSW, even though they are located at commercial or
industrial facilities and currently subject to CISWI, we proposed that
they would be subject to the OSWI rule. As discussed in the 2020
Proposed Rule, this approach is more consistent with the EPA's other
CAA section 129 MWC rules and the CAA definition of ``municipal waste''
in CAA section 129(g)(5), which defines the term ``municipal waste'' to
mean refuse ``collected from the general public and from residential,
commercial, institutional, and industrial sources consisting of paper,
wood, yard wastes, food wastes, plastics, leather, rubber and other
combustible materials and non-combustible materials such as metal,
glass and rock.'' We did not read this definition as necessitating
that, to constitute MSW, that the waste must be transferred from one
site and burned at another site. Additionally, the information gathered
for the two new OSWI units (VSMWC with capacities greater than 10 TPD
located in Arizona and Texas) indicated that these units are
continuously fed rotary combustors that use add-on pollution controls
to comply with the OSWI standards.
For incineration units, differences in size typically reflect
differences in operation and equipment complexity. Units with
capacities less than or equal to 10 TPD typically feed waste to the
unit in batches and some units may not even be equipped with stacks.
Units larger than 10 TPD typically feed waste to the unit continuously
or semi-continuously and also typically have stacks or flues that can
be routed to air pollution control devices. Based on the differences in
size, design, and operation of the SRI units and the two new OSWI
units, the EPA proposed to subcategorize IWI and VSMWC units under OSWI
based on size. These subcategories included VSMWC units with a capacity
to combust less than or equal to 10 TPD of MSW or refuse-derived fuel;
IWI units with a capacity to combust less than or equal to 10 TPD of
institutional waste; VSMWC units with a capacity to combust greater
than 10 TPD but less than 35 TPD of MSW or refuse-derived fuel; and IWI
units with a capacity to combust greater than 10 TPD of institutional
waste. The proposed and final subcategories for VSMWC and IWI units are
summarized in table 2 of this preamble.
Table 2--OSWI Categories and New Subcategories
--------------------------------------------------------------------------------------------------------------------------------------------------------
2005 Final rule 2020 Proposed rule 2025 Final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subcategory Capacity Subcategory Capacity Subcategory Capacity
--------------------------------------------------------------------------------------------------------------------------------------------------------
VSMWC.............................. <35 TPD............... Small VSMWC........... <=10 TPD............. VSMWC with capacity <=10 TPD.
<=10 TPD.
IWI................................ No capacity threshold. Large VSMWC........... >10 but <35 TPD...... VSMWC with capacity >10 but <35 TPD.
>10 TPD.
Small IWI............. <=10 TPD............. IWI with capacity <=10 TPD.
<=10 TPD.
Large IWI............. >10 TPD.............. IWI with capacity >10 >10 TPD.
TPD.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The EPA subsequently proposed revised MACT floor emission limits
for existing and new VSMWC and IWI units with capacities less than or
equal to 10 TPD based on the updated inventory, emissions, and waste
data provided by AOGA. We did not propose any revisions to the MACT
floor emission limits for existing and new ``large'' OSWI units
(greater than 10 TPD). Section II.B. of the preamble to the 2020
Proposed Rule provides additional information on the EPA's rationale
for the proposed revisions to subcategorize OSWI units and the proposed
emission limits.
Following review of the comments received on the 2020 Proposed
Rule, we are finalizing the proposed subcategories and related MACT
floor recalculations for new and existing VSMWC and IWI units with
capacities less than or equal to 10 TPD based on the data gathered
during the 2020 Proposed Rule, which includes data collected for SRI
units previously regulated under CISWI, and which better reflects the
actual emissions test data from similar units. The final subcategories
for OSWI units remain
[[Page 27916]]
appropriate based on the differences in the size, design, and operation
of the units with capacity less than or equal to 10 TPD and the two new
OSWI units, that have capacities greater than 10 TPD. In addition,
consistent with the proposal, we are not finalizing any changes to the
2005 OSWI emission limits for VSMWC and IWI units with capacities
greater than 10 TPD (new and existing). Also, we conclude, as proposed,
that revised beyond-the-floor limits are not appropriate for the OSWI
subcategories (see section II.B.1 of the proposal preamble (85 FR
54178).
We have developed revised emission limits for existing OSWI units
with capacities less than or equal to 10 TPD using the average emission
limitation of the best performing 12 percent of such sources and also
considering variability in emissions, consistent with CAA section
129(a)(2). The revised standards better reflect actual emissions test
data from OSWI units and are more representative of and better reflect
the emissions achievable for new and existing units in each category
required under CAA sections 129(a)(2) and (4).
To calculate the MACT floor emission limits for these existing OSWI
sources, we considered the available test run data provided in response
to a 2010 information collection request (ICR) and test data from 2014
submitted in June 2017 by AOGA in their attempt to address concerns
that they had with the 2010 ICR data pertaining to the emissions test
data representativeness and waste variability. In the MACT floor
analysis, we used the run data from the 2010 and 2014 emission tests to
calculate the 99th percentile upper limits (UL) statistical interval
for the best 12 percent of such incineration units for each pollutant
to address the range of operating conditions of the incinerator. The UL
is a common statistical interval used to address variability and was
the same statistical interval used to calculate the CISWI SRI emission
limits (76 FR 15723, March 21, 2011). We also applied a waste
variability factor to account for variability in emissions expected to
result from the varying waste profiles of OSWI units.
We are also finalizing revised MACT floors for new OSWI units with
capacities less than or equal to 10 TPD. Section 129(a)(2) of the CAA
requires that MACT for new sources be no less stringent than the
emissions control achieved in practice by the best controlled similar
unit. Therefore, the approach for new sources was similar to that used
with the existing sources (i.e., UL with a waste variability factor
applied for the pollutants influenced by waste composition), except the
top performing unit's data were used to calculate the MACT floor
emission limit instead of the average of the best performing 12 percent
of units and a 95 percentile UL was used instead of a 99 percentile UL.
We also examined whether it was appropriate to adopt more stringent
``beyond-the-floor'' regulatory options to determine MACT. Unlike the
floor minimum stringency requirements, the EPA must consider various
impacts of the more stringent regulatory options in determining whether
MACT standards are to reflect ``beyond-the-floor'' requirements,
including considering the costs, non-air quality health and
environmental impacts, and energy requirements of such more stringent
control. OSWI units with capacities less than or equal to 10 TPD often
are of very basic, rudimentary design and function. Requiring
additional controls on these units is infeasible or simply would be
cost prohibitive. For OSWI units with capacities greater than 10 TPD,
the 2005 final rule already incorporated beyond-the-floor requirements.
We do not have sufficient information for OSWI units with capacities
greater than 10 TPD that would enable us to revise the beyond the floor
limits. However, based on the information we have from the 2005 rule,
requiring any further controls would likely only provide minimal
emissions reductions with substantial cost investments. Considering
these factors, we concluded that revised beyond-the-floor limits are
unreasonable for the OSWI subcategories.
The final emission limits, including the new limits for VSMWC and
IWI units with capacities less than or equal to 10 TPD and the
unchanged limits for units with capacities greater than 10 TPD, are
summarized in table 3 of this preamble. The limits for the VSMWC and
IWI with capacities less than or equal to 10 TPD are less stringent
than the corresponding limits for VSMWC and IWI with capacities greater
than 10 TPD. However, the VSMWC and IWI with capacities less than or
equal to 10 TPD operate intermittently (average 2,620 hours or 109 days
per year) with a relatively low stack gas flow rate (average 686 dry
standard cubic feet per minute at 7 percent oxygen), and so the actual
emissions of pollutants are relatively low for these units.\3\ For
example, the EPA estimates that a representative VSMWC with capacity
greater than 10 TPD may emit between 0.006 and 0.01 tons of Cd per year
while meeting its limit of 18 [micro]g/dscm,\4\ while the highest-
emitting VSMWC with capacity less than or equal to 10 TPD emitting at
the level of the standard (2,000 [micro]g/dscm) would only emit 0.007
tons of Cd per year.\5\
---------------------------------------------------------------------------
\3\ See Docket Item No. EPA-HQ-OAR-2003-0156-0143.
\4\ See Docket Item No. EPA-HQ-OAR-2003-0156-0011.
\5\ See Docket Item No. EPA-HQ-OAR-2003-0156-0143.
[[Page 27917]]
Table 3--Final Emission Limits for OSWI Units
----------------------------------------------------------------------------------------------------------------
Existing VSMWC and IWI units New VSMWC and IWI units \1\
Concentration \1\ -------------------------------
Pollutant units ---------------------------------
<=10 TPD >10 TPD \2\ <=10 TPD >10 TPD \2\
----------------------------------------------------------------------------------------------------------------
Cd........................... [micro]g/dscm... 2,000 18 400 18
HCl.......................... ppmvd........... 500 15 210 15
Pb........................... [micro]g/dscm... 32,000 226 26,000 226
Hg........................... [micro]g/dscm... 69 74 12 74
SO2.......................... ppmvd........... 130 3.1 38 3.1
NOX.......................... ppmvd........... 210 103 180 103
PM........................... mg/dscm......... 280 30 210 30
DF (TMB) \2\................. ng/dscm......... 4,700 33 3,100 33
DF (TEQ) \3\................. ng/dscm......... 86 (\4\) 40 (\4\)
CO........................... ppmvd........... 220 40 69 40
----------------------------------------------------------------------------------------------------------------
\1\ Limits are based on TPD capacity.
\2\ Limit remains unchanged from 2005 OSWI Rule. For PM, the 2005 OSWI standard was converted from grains per
dscf to mg/dscm.
\2\ TMB = Total mass basis.
\3\ TEQ = Toxic equivalency basis.
\4\ DF TEQ basis was not calculated for the 2005 rule.
Comments on the proposed revisions to the MACT floor recalculations
and OSWI subcategories and our responses can be found in section IV.B
of this preamble. Additional information on the development of the
emission limits may be found in section II.B. of the preamble to the
2020 Proposed Rule and in the memorandum, Emission Limit Calculations
for Existing and New Sources for the Final Other Solid Waste
Incinerator (OSWI) Rulemaking, which is available in the docket (see
Docket EPA-HQ-OAR-2003-0156) for this action.
D. What are the final rule amendments addressing other definitions for
the OSWI category?
In addition to the proposed changes to applicability-related
definitions described in section III.B of this preamble, the EPA
included in its 2020 Proposed Rule definitions for ``waste profile''
and ``small OSWI unit.'' As discussed in section III.C of this
preamble, the EPA is finalizing the proposed subcategories and related
MACT floor recalculations for new and existing VSMWC and IWI units with
capacities less than or equal to 10 TPD. Accordingly, the EPA is
finalizing separate flexibilities to the testing, monitoring,
recordkeeping, and reporting requirements for OSWI units with
capacities less than or equal to 10 TPD that require waste
characterization and waste profile data (see section III.F.1 of this
preamble). For these reasons, we are finalizing the proposed revision
to add a definition for ``waste profile'' as related to compliance with
the VSMWC and IWI with capacity of less than or equal to 10 TPD
standards. The EPA proposed to define waste profile to mean the amount
of each waste category burned as a percentage of total waste burned on
a mass basis. We are not finalizing the proposed definition for ``small
OSWI unit,'' but are retaining text for VSMWC and IWI units with
capacities less than or equal to 10 TPD in keeping with the final
subcategories and MACT floor redeterminations discussed in section
III.C of this preamble.
Following consideration of the comments received and discussions
with state and Tribal authority to gather additional data on the types
of units referenced, the EPA proposed in the 2024 SNPRM to define a
rudimentary combustion device separately from VSMWC or IWI because
rudimentary combustion devices lack key features of commercially
available incineration units and the emissions information, limits, and
controls developed for the OSWI rule are not appropriate for them. The
EPA proposed to define a rudimentary combustion device as a combustion
device with a capacity less than or equal to 10 TPD that is designed
and constructed without one or more of the following elements: (1) a
stack, chimney, or pipe designed for the purpose of managing air flow
and discharging flue gases from combustion; (2) mechanical draft to
provide air flow; (3) burners designed to manage the combustion
process; (4) an ancillary power supply to operate; or (5) supplemental
fuel burners or nozzles. The EPA solicited additional comments and data
to refine the definition of ``rudimentary combustion device'' and to
better understand the number of devices and individuals using these
devices in rural communities. Following review of the comments received
on the 2024 SNPRM, we are finalizing revisions to the applicability
requirements at 40 CFR 60.2885 and 40 CFR 60.2991 and adding a
definition of ``rudimentary combustion device'', with minor revisions
from the 2024 SNPRM proposal. For the reasons described in section IV.A
of this preamble, we are clarifying the proposed requirements and
finalizing the definition of ``rudimentary combustion device'' as a
combustion device with a capacity less than or equal to 10 TPD that is
designed and constructed without one or more of the following elements:
(1) a stack, chimney, or pipe designed for the purpose of discharging
flue gases from combustion; (2) mechanical draft to provide air flow;
(3) burners designed to initiate, and/or assist the combustion process,
including burners designed to burn supplementary fuel; or (4) an
ancillary power supply to operate. Additional information on this
proposed revision can be found in section III of the preamble to the
2024 SNPRM.\6\
---------------------------------------------------------------------------
\6\ 89 FR 63045-47 (July 25, 2024).
---------------------------------------------------------------------------
E. What are the final rule amendments addressing emissions during
periods of SSM?
Currently, the OSWI standards do not apply during SSM periods (see
40 CFR 60.2918, 60.3025). The EPA proposed to eliminate this limitation
or qualification on the applicability of the OSWI standards. The EPA
proposed this change in light of the 2016 remand and certain legal
developments, including a decision by the D.C. Circuit that invalidated
certain regulations related to SSM in the 40 CFR part 63 General
Provisions (Sierra Club v. EPA, 551 F.3d 1019 (2008)). We are
finalizing the proposed amendments to the OSWI standards from the 2020
Proposed Rule to remove and revise provisions related to SSM.
[[Page 27918]]
For the reasons explained in the 2020 Proposed Rule (see section
II.B.3 of the proposal preamble at 85 FR 54178), we determined that
OSWI units can meet the applicable standards at all times, including
during periods of startup and shutdown. In establishing the standards
in this rule, the EPA has taken into account startup and shutdown
periods and, for the reasons explained below, has not established
alternate standards for those periods. As explained in the 2020
Proposed Rule, we have determined that during startup most OSWI units
burn natural gas or clean distillate oil, and waste is not added until
the unit has reached suitable combustion temperatures; and during
shutdown periods, emissions are generally significantly lower than
emissions during normal operations because the materials in the
incinerator will be almost fully combusted before shutdown occurs.
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 interprets 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 by the court in U.S. Sugar Corp. v. EPA, 830 F.3d 579,
606-610 (D.C. Cir. 2016). The court's reasoning in U.S. Sugar applies
equally to CAA section 129 standards given the similarities between the
CAA section 112 and 129 standard setting criteria. Therefore, we are
removing 40 CFR 60.2918 and 40 CFR 60.3025, which provided exemptions
for SSM.
We are also finalizing, as proposed, other changes to the SSM
standards in light of the EPA's experience with the CAA section 129
solid waste incinerator rules. These changes include harmonizing
revisions to other rule provisions that reference SSM, such as:
revising the definition of ``Deviation'' to remove language for periods
of SSM; clarifying that the 12-hour rolling average values must include
periods of continuous emissions monitoring systems (CEMS) data during
startup and shutdown by adding a definition of ``CEMS data during
startup and shutdown'' in 40 CFR 60.2977 and 40 CFR 60.3078; revising
the equations used to calculate the 12-hour rolling average for CO; and
updating requirements related to SSM for recordkeeping and reporting in
40 CFR 60.2949, 60.2957, 60.2958, 60.3046, 60.3052, and 60.3053. These
changes are further described in section III.F.2 of this preamble. We
did not receive comments on the proposed removal and revisions of
provisions related to SSM.
F. What are the final rule amendments addressing testing, monitoring
and reporting requirements?
1. Initial and Continuous Compliance Demonstration
Consistent with the proposal, we are finalizing the substitute
means of compliance demonstration (SMCD) for VSMWC and IWI units with
capacities less than or equal to 10 TPD. We have considered the cost of
testing, and we recognize that testing and monitoring requirements can
impose substantial financial burdens and technical challenges on owners
and operators of these sources. The SMCD provides an alternative to the
general testing and monitoring requirements for VSMWC and IWI units
with capacities less than or equal to 10 TPD. VSMWC and IWI units with
capacities greater than 10 TPD must continue to demonstrate compliance
by individual stack testing.
However, stack testing is unfeasible for some VSMWC and IWI units
with capacities less than or equal to 10 TPD. As we stated in the
proposal and confirmed by information we gathered between the proposal
and this final action, we believe that many of these units are located
in remote areas, such as SRIs located on oil and natural gas platforms
on Alaska's North Slope in the Beaufort Sea and other areas that are
similarly isolated which represent 29 of the 31 OSWI units that are not
rudimentary combustion devices, surrounded by water or wetlands, or
that have limited infrastructure or are difficult to access. Getting
testing crews to those incinerators would be extremely challenging and
costly. Other units could be considered readily accessible, but they
are not equipped with stacks adequate to allow emissions sampling for
performance tests. Such units would need to be modified to be able to
conduct compliance testing. However, costs and logistics would prevent
these types of incinerators from making the necessary changes. In still
other cases, it simply may not be physically possible to modify an
existing incinerator stack to allow compliance testing.
Therefore, we are finalizing, as proposed, an option for using a
``representative'' initial compliance demonstration. Owners and
operators of VSMWC or IWI units with capacities less than or equal to
10 TPD who have not previously submitted testing meeting the
requirements of the final standards would have to submit detailed
information about their units, including: the make, model, and
manufacturer of the unit; the type and capacity of the unit; the unit's
air pollution control devices (if any); the type and quantity of waste
incinerated; and the charge rate. They would then identify a
representative performance test in the EPA's WebFIRE database.
A representative performance test must be conducted on an OSWI unit
that has similar throughput, methods of processing and burning waste,
operating temperatures, types of wastes or supplemental fuels burned,
and waste profile as the OSWI unit using the SMCD. A representative
performance test must be conducted consistent with the requirements in
the OSWI rule; demonstrate compliance with the OSWI standards; and
include the following information in the report: unit design (including
air pollution control devices), charge rate during the test, type of
operation, combustion temperature during the test, types of waste
burned during the test and the relative amount of each waste to the
total waste burned (waste profile), type and amount of supplemental
fuels used during the test, and, if the tested unit has an air
pollution control device, the operating parameter data for the control
device during the test. Not all tests in the WebFIRE database may
qualify. If there is no representative performance test available in
the WebFIRE database, the OSWI unit with capacity less than or equal to
10 TPD cannot use the SMCD and must instead conduct its own initial
performance test.
To use this substitute option for demonstrating initial compliance,
the owner/operator must submit the following information: a notice of
intent to use the SMCD; waste profile information; and a representative
performance test.\7\ Each of these elements is discussed below.
---------------------------------------------------------------------------
\7\ This information must be submitted through the EPA's Central
Data Exchange (CDX) using the Compliance and Emissions Data
Reporting Interface (CEDRI).
---------------------------------------------------------------------------
a. Notice of Intent
We are finalizing provisions that offer VSMWC and IWI units with
capacities less than or equal to 10 TPD two options for initial
performance tests: conducting an individual initial performance test or
using the SMCD described below. New VSMWC and IWI units with capacities
less than or equal to 10 TPD that were constructed after August 31,
2020, or
[[Page 27919]]
modified or reconstructed after December 29, 2025, must either complete
initial performance tests within 60 days after reaching the charge rate
at which they will operate, but no later than 180 days after initial
startup,\8\ or they must submit a notice of intent to use the SMCD by
December 29, 2025, or within 60 days after initial startup, whichever
of these dates is later. The notice of intent should include the
manufacturer, make, model, and type of unit, and documentation showing
that the capacity of the unit is less than or equal to 10 TPD. Owners
and operators of existing VSMWC and IWI units with capacities less than
or equal to 10 TPD (constructed on or before August 31, 2020, and not
modified or reconstructed after December 29, 2025) are not required to
submit a notice of intent to the EPA. However, they are required to
either identify the results of an existing performance test in the
EPA's WebFIRE database that is representative of their type of OSWI
unit, if they intend to use the SMCD, or conduct an initial performance
test; this must happen no later than 3 years after a state plan is
approved or no later than July 1, 2030, whichever date is earlier.
---------------------------------------------------------------------------
\8\ For units that startup between August 31, 2020, and December
29, 2025, the initial performance test must be conducted within 60
days after the OSWI unit reaches the charge rate at which it will
operate, but no later than 180 days after its initial startup, or by
February 25, 2026, whichever date is later.
---------------------------------------------------------------------------
b. Waste Profile Information
As we stated in the proposal, we recognize that the SMCD relies on
the availability of the results of performance tests conducted on
potentially representative sources in the EPA's WebFIRE database.
Because we anticipate that owners and operators using the SMCD will
need time to meet its conditions, we encourage them to submit their
notices of intent to use the substitute means of compliance and collect
data for waste characterization as soon as possible after this rule is
promulgated. For this reason, beginning on December 29, 2025, and until
the owner or operator identifies a representative performance test, but
before March 30, 2027 or 60 days after the OSWI unit reaches the charge
rate at which it will operate or 180 days after initial startup,
whichever is later, each owner or operator of a new VSMWC and IWI unit
with capacity less than or equal to 10 TPD planning to use the SMCD
must collect data on a weekly basis to characterize the unit's
operations and waste profiles, as further discussed in section
III.F.1.c of this preamble. The waste profile information will record
the unit's differing waste streams and waste variability in order to
develop a representative waste profile. The unit's profile can then be
used to identify a representative performance test for the unit's SMCD.
c. Representative Testing
We are finalizing an SMCD alternative allowing owners and operators
of VSMWC and IWI units with capacities less than or equal to 10 TPD to
identify a representative performance test in the WebFIRE database and
submit information about the representative performance test and
documentation of how the performance test is representative for their
unit (e.g., based on the unit type and design, charge rate, operating
temperatures, types of waste burned, and any air pollution control
devices) to the Administrator through the EPA's Central Data Exchange
(CDX) using the Compliance and Emissions Data Reporting Interface
(CEDRI). Owners and operators must maintain a record of the
representative performance test report (acquired from the EPA's WebFIRE
database) and the submitted documentation of how the test is
representative. The EPA encourages owners and operators to find similar
sources by reviewing the notices of intent to use the SMCD and/or
performance tests, available in the EPA's WebFIRE database. The EPA
still anticipates that similar sources will coordinate to develop test
protocols and find cost sharing opportunities by having representative
sources conduct a performance test that can be used by all sources in
that group.
If owners and operators of existing VSMWC and IWI units with
capacities less than or equal to 10 TPD choose to use the SMCD, we are
requiring them to submit SMCD information identifying the
representative performance test through CDX using CEDRI beginning no
later than March 30, 2027 or 60 days after the OSWI unit reaches the
maximum charge rate at which it will operate, but no later than 180
days after initial startup, whichever date is later. This period will
allow the owner or operator time for reviewing notices available on the
EPA's WebFIRE database, finding and coordinating with similar sources,
developing a testing protocol that will work for all sources within a
group, conducting the performance tests, and electronically submitting
the results of the test through CEDRI (see section III.E.3 of this
preamble for a discussion of electronic reporting). The period will
also allow time for the EPA to transfer these results to the EPA's
WebFIRE database and for owners and operators to find a representative
performance test and submit information on how it is representative to
the Administrator.
Given the time needed to identify and coordinate similar source
groups or develop test protocols, and because the compliance date for
new sources is earlier than the compliance date for existing sources
and it is uncertain how many tests will be conducted, owners or
operators of existing sources are encouraged to start collecting
information that would be useful for identifying similar sources and
submit this information as soon as possible. This will greatly increase
the likelihood that a representative test will be available in the
WebFIRE database prior the compliance deadline.\9\ As noted in our
proposal, owners and operators who do not provide their initial waste
characterization data in a timely manner could miss the opportunity to
avail themselves of this option due to the amount of planning, time,
and resources required for similar sources to coordinate and perform
performance tests. Owners and operators who cannot find a
representative test conducted for a unit that is similar to their unit
must conduct their own initial performance tests.
---------------------------------------------------------------------------
\9\ The distinction between a new and existing unit does not in
itself preclude the use of a performance test. If a new unit is
similar in design and operation to an existing unit, the new unit
may use a performance test conducted by an existing unit and vice
versa. However, if a performance test is conducted on an existing
unit, it must, among other things, demonstrate initial compliance
with the emissions limits for new units for a new unit to use it as
a representative performance test.
---------------------------------------------------------------------------
d. Continuous Compliance Demonstration
We are also finalizing, as proposed, an alternative waste
characterization (AWC) option for demonstrating continuous compliance
available to all VSMWC and IWI units with capacities less than or equal
to 10 TPD that are subject to the OSWI rules. We are finalizing this
AWC option in response to comments pointing out the difficulties of
testing these units, which are generally located in areas that are
remote and difficult to access.
In lieu of conducting annual performance tests, this alternative
demonstration of continuous compliance will require recordkeeping. The
recordkeeping requirements include recording the source-specific waste
profiles and incinerator unit operating parameters, including the daily
average charge rate and the 3-hour average combustion chamber
temperature of the unit. As discussed in section IV.C of this preamble,
in response to comments received, we have modified the final rule to
require
[[Page 27920]]
that the facility use its records at the end of each calendar quarter
to demonstrate that the waste combusted is consistent, within +/- 15
percent by weight, with the percentage established for the components
of the waste stream according to the waste profiles established during
the facility's initial performance test or established in the
representative initial performance test for units using the SMCD.\10\
The facility must report any deviations from the quarterly average
waste profile requirements in its deviation report. Additionally, the
records must demonstrate that the unit is operated within the charge
rate and temperature ranges established during the initial performance
test or the representative performance test.
---------------------------------------------------------------------------
\10\ If, for example, the paper component of the waste stream
during initial testing was 20 percent, then burning waste streams
with a paper component between 5 and 35 percent of the total waste
stream would be acceptable quarterly operation and, assuming all
other requirements are met, additional testing would not be required
for the source.
---------------------------------------------------------------------------
As described in the proposal, we are finalizing a requirement that
if the facility anticipates combusting a waste stream with a different
profile, the owner/operator must conduct a performance test of the unit
with a waste stream representative of the new waste profile, or
alternatively, must identify a representative performance test report
in the WebFIRE database and submit the information required by the
SMCD, before combusting the modified waste stream.\11\ Similarly, if
the facility anticipates exceeding or operating outside of the
established operating parameter ranges, the owner/operator must conduct
a performance test of the unit while it is operating at the new
parameter limits, or find a representative performance test with those
operating parameter limits in the WebFIRE database and submit the
information required by the SMCD, to confirm that the unit continues to
meet the OSWI emission standards under the new operating parameter
limits. Failure to comply with the retesting requirement is a deviation
from the OSWI standards.
---------------------------------------------------------------------------
\11\ To use a representative test, the owner or operator of a
unit must show that the representative test is of a unit having a
similar throughput, method of processing and burning waste, charge
rate, operating temperatures, waste management plan, estimated waste
variability, and waste profile as its unit.
---------------------------------------------------------------------------
We are finalizing, as proposed in the 2020 Proposed Rule, revisions
to monitoring to make the OSWI standards more consistent with the
monitoring requirements in other CAA section 129 rules. For example,
the only air pollution control device for which the 2005 final OSWI
standards provide operating requirements is wet scrubbers. We are
finalizing revisions to 40 CFR 60.2916 and table 2 to subpart EEEE and
40 CFR 60.3023 and table 3 to subpart FFFF to include operating limits
and operating parameter monitoring requirements for additional controls
that may be employed for OSWI units, including dry scrubbers,
electrostatic precipitators, and fabric filters. Additionally, we are
finalizing a clarification to 40 CFR 60.2917 and 40 CFR 60.3024 that
OSWI units that use an alternate method for air pollution control
beyond a wet scrubber, dry scrubber, electrostatic precipitator, or
fabric filter, including other methods such as material balance, may
petition the EPA for specific operating parameter limits in these
cases. The final requirements add flexibility for facilities by
expanding the control options available. In addition, we are finalizing
as proposed revisions to the requirements in 40 CFR 60.2916, 40 CFR
60.2928, 40 CFR 60.3023, and 40 CFR 60.3023 for owners and operators of
OSWI units using control options to require that the minimum operating
parameters (e.g., combustion operating chamber temperature, pressure
drop, liquid flow rate) established for initial compliance are
calculated based on the lowest 1-hour average as measured during the
most recent performance test (or representative performance test)
demonstrating compliance. The current OSWI standards required that
these parameters be calculated using the average as measured during the
most recent performance test. Similarly, we are revising the continuous
compliance requirements in 40 CFR 60.2932(c) and 40 CFR 60.3023(c) to
specify the averaging times for continuous compliances for operating
parameters for the extended control options (generally, 3-hour rolling
averages).
Moreover, as we proposed, we are removing the requirement for CO
and oxygen (O<INF>2</INF>) CEMS for VSMWC and IWI units with capacities
less than or equal to 10 TPD that use the AWC option in lieu of
complying with the annual performance testing requirements. We are
making this change for the same reasons that we are finalizing an
alternative to the annual performance test. In addition to the cost of
maintaining CEMS, calibrating a CEMS generally requires an annual stack
test to verify the operation of the CEMS. Providing an alternative to
conducting annual performance tests while continuing to require CEMS,
which need annual stack tests, would not achieve the stated goals and
benefits of providing an alternative to annual performance tests for
showing continuous compliance.
We are finalizing, as proposed, an option included in the 2020
Proposed Rule that allows OSWI units to use CO CEMS data in lieu of
initial and annual testing for CO, provided the CEMS has been
previously certified and is meeting the ongoing quality assurance/
quality control requirements. Currently, facilities are required under
40 CFR 60.2927 and 40 CFR 60.3030 to conduct initial and annual
performance testing to determine compliance with all emission
limitations, including CO, and to also continuously monitor CO
emissions using CEMS under 40 CFR 60.2939 and 40 CFR 60.3038.
Facilities that opt to use CO CEMS data to demonstrate continuous
compliance must use a 12-hour rolling average of the 1-hour arithmetic
average CEMS data to determine compliance with the CO emission
limitations. However, the initial performance evaluation (CEMS
certification) must be completed prior to collecting CEMS data for the
initial compliance demonstration. Under the final rule, such units
could also use CO CEMS data in lieu of conducting an annual performance
test for CO. This change provides flexibility for sources and reduces
the cost burden associated with testing, while assuring compliance
based on continuously measured emissions data.
As discussed in section IV.C of this preamble, for OSWI units that
choose to conduct annual testing, we are revising the compliance
timeline for the annual performance test in response to comments that
weather and geographic constraints may prevent facilities from meeting
the timeline on a 12-month basis. The final rule requires annual
performance tests to be conducted within 14 months following the
initial performance test and, subsequently, within 14 months from the
prior years' tests.
For a more detailed discussion of these amendments addressing
testing and monitoring requirements for VSMWC and IWI units see section
II.B.4 of the proposal preamble (85 FR 54178). Section IV.C of this
preamble provides a summary of the significant comments on the proposal
and our responses to those comments. A full compilation of comments and
responses can be found in the document, Summary of Public Comments and
Responses for the Standards of Performance for New Stationary Sources
and Emission Guidelines for Existing Sources: Other Solid Waste
Incineration Units Review, which is available in the docket (see
[[Page 27921]]
Docket EPA-HQ-OAR-2003-0156) for this rulemaking.
2. Recordkeeping and Reporting
For units using the SMCD to demonstrate initial compliance, we are
finalizing, as proposed, a requirement that owners and operators
maintain the following records: the notice of intent to use the SMCD,
along with documentation of the unit's design, operation, and capacity;
initial waste characterization and operating data; and documentation of
how the selected substitute test is representative of the unit.
We are also finalizing recordkeeping requirements to be used with
the AWC option. Owners and operators must maintain records on: start
and end times of the unit's operation; the amount or weight of each
waste type (e.g., pounds of solid waste, food waste, wood, or yard
waste); the percentage of each type of waste burned; the 3-hour average
temperature and charge rate; and operating records for units using air
pollution controls such as a wet scrubber, dry scrubber, electrostatic
precipitator, or fabric filters. Unit owners and operators must also
keep records of periods when the waste profile does not meet the
requirements as tested. As stated in the proposal, these recordkeeping
requirements will help ensure that VSMWC and IWI units with capacities
less than or equal to 10 TPD choosing the AWC option can demonstrate
compliance with the emission and operating limits of the OSWI
standards. The recordkeeping will also help to demonstrate that the
percentage of waste components burned by VSMWC and IWI units with
capacities less than or equal to 10 TPD is within +/-15 percent of the
percentages established for each waste category incinerated at a unit
according to the profiles established during the initial performance
test or representative performance test. We are also finalizing, as
proposed, a reporting requirement that owners and operators include in
annual reports a statement that there were no deviations from the waste
characterization requirements and that the unit has been operated
within the operating parameter limits. As we stated in the proposal,
these recordkeeping and reporting requirements are intended to help
ensure that there is adequate information available with which to
determine compliance with the standards; to ascertain the severity of
any failure to meet a standard; and to further assure compliance with
the standards at all times.
Consistent with the proposal, we are also clarifying the timeline
for owners and operators who choose the SMCD to submit their annual
compliance reports. They must submit their annual compliance reports no
later than 12 months after they submit the representative initial
performance test and description of how the test is representative for
the OSWI unit.
We are finalizing, as proposed, revisions to the recordkeeping and
reporting requirements for deviations included in the 2020 Proposed
Rule to clarify that a deviation includes any ``failure to meet an
applicable standard'' and to clarify what information must be recorded
and reported. These changes include the following:
<bullet> Revising the definition of ``deviation'' to remove
language for periods of SSM, as discussed in section III.E of this
preamble.
<bullet> Revising 40 CFR 60.2932(c) and 40 CFR 60.3033(c) to
clarify the alarm time that constitutes a deviation from the operating
limit for OSWI units with fabric filters and bag leak detection
systems.
<bullet> Revising 40 CFR 60.2942(f) and 40 CFR 60.3041(f) to
clarify that, for OSWI units using CEMS, failure to collect required
data is a deviation from the monitoring requirements.
<bullet> Revising 40 CFR 60.2949 and 40 CFR 60.3046 to specify that
facilities must retain a record identifying the calendar dates, times,
and durations of malfunctions and a description of the failure and the
corrective action taken.
<bullet> Revising 40 CFR 60.2956(e) and 40 CFR 60.3051(e) to
clarify that for OSWI units with CEMS, the annual report must include a
statement that there were no periods during which the CEMS were
inoperative, inactive, malfunctioning, or out of control.
<bullet> Removing and reserving deviation reporting requirements
(previously 40 CFR 60.2956(g); 40 CFR 60.3051(g)) previously included
as part of the annual report to remove redundant reporting; these
requirements are included in the deviation report submitted on a
semiannual basis (40 CFR 60.2958; 40 CFR 60.3053).
<bullet> Modifying the annual reporting requirements in 40 CFR
60.2956 and 40 CFR 60.3051 to require facilities to provide a statement
that there was no deviation identified from the waste characterization
(i.e., each quarter, the waste types burned are within 15 percent
variation of the profiles established during the initial performance
test) and the unit has been operated within the charge rate and
temperature ranges established when no deviations have occurred during
the reporting period.
<bullet> For deviation reporting, revising the title of 40 CFR
60.2957 and 40 CFR 60.3052 to ``What other reports must I submit if I
have a deviation?'' and reorganizing 40 CFR 60.2957(a) and 40 CFR
60.3052(a) to be consistent with the definition of ``deviation'' and to
better reflect the types of deviations which must be reported.
<bullet> Modifying the requirements of 40 CFR 60.2958 and 40 CFR
60.3053 to clarify the contents of the deviation report, including
identifying the calendar dates, times, and durations of any deviations
and a description of any corrective actions taken, and adding new
requirements to report deviations from the waste characterization and
operating parameter limits established for VSMWC and IWI units with
capacities less than or equal to 10 TPD.
As discussed in section IV.C.2 of this preamble, we are making one
minor change to the proposed reporting requirements for qualified OSWI
unit operators at 40 CFR 60.2956(j) and 40 CFR 60.3051(j) to clarify
that facilities must report ``the start date, start time, and duration
in hours for each period of operation when all qualified OSWI unit
operators were unavailable for more than 12 hours but less than 2
weeks''. The proposed language referenced ``each period when qualified
OSWI unit operators were unavailable . . .'' and unintentionally
included periods of off-season, maintenance, or periods of shutdown.
The final rule clarifies the text to ``each period of operation'' to
exclude off-season, maintenance, and shutdown periods.
Lastly, we are finalizing, as proposed, additional changes to the
recordkeeping and reporting requirements in 40 CFR 60.2949(b) and 40
CFR 60.2956(d) and (f) and 40 CFR 60.3046(b) and 40 CFR 60.3051(d) and
(f) from the 2020 Proposed Rule that include consistency edits based on
the revisions to allow for use of CO CEMS data in lieu of annual
testing for CO (for OSWI units that have capacities greater than 10
TPD) (discussed in section III.F.1 of this preamble) and the revisions
to the monitoring requirements to ensure consistency with other CAA
section 129 rules such as CISWI (e.g., adding operating parameters for
controls other than a wet scrubber that may be employed for OSWI units
and clarifying the frequency of the data recording or averaging for
each required operating parameter, discussed in section III.F.1 of this
preamble).
For a more detailed discussion of these amendments to recordkeeping
and reporting requirements, see section
[[Page 27922]]
II.B.5 of the proposal preamble (85 FR 54178; August 31, 2020). Section
IV.B.2 of this preamble provides a summary of key comments we received
on these amendments and our responses.
3. Electronic Reporting
To increase the ease and efficiency of data submittal and data
accessibility, we are finalizing, as proposed, a requirement that
owners or operators of OSWI units submit required performance test
reports, performance evaluation reports, deviation reports, and annual
compliance reports through the EPA's Central Data Exchange (CDX) using
the Compliance and Emissions Data Reporting Interface (CEDRI), as
included in the 2020 Proposed Rule. The final rule requires that
performance test results be submitted in the format generated through
the use of the EPA's Electronic Reporting Tool (ERT) or an electronic
file consistent with the extensible markup language (XML) schema on the
ERT website.\12\ Similarly, performance evaluation results of CEMS that
include a relative accuracy test audit must be submitted in the format
generated through the use of the ERT or an electronic file consistent
with the XML schema on the ERT website.
---------------------------------------------------------------------------
\12\ <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>.
---------------------------------------------------------------------------
For deviation reports and annual compliance reports, the final rule
requires owners and operators to use the appropriate spreadsheet
template to submit information to CEDRI, beginning June 30, 2026, or
once the reporting forms have been made available in CEDRI for at least
1 year, whichever date is later. The final version of the template for
these reports will be located on the CEDRI website.\13\ If the
reporting template specific to this subpart is not available in CEDRI
at the time that the report is due, facilities must submit the report
to the Administrator at the appropriate address listed in 40 CFR 60.4.
Once the form has been available in CEDRI for at least 1 year,
facilities must submit all subsequent reports via CEDRI. Furthermore,
we are finalizing, as proposed, provisions that allow facility
operators to seek extensions for submitting electronic reports for
circumstances beyond the control of the facility, i.e., for a possible
outage in the CDX or CEDRI (see 40 CFR 60.2961(d) and 40 CFR
60.3056(d)) or, for a force majeure event, see 40 CFR 60.2961(e) and 40
CFR 60.3056(e) in the time just prior to a report's due date, as well
as provisions outlining the process to assert such a claim.
---------------------------------------------------------------------------
\13\ <a href="https://www.epa.gov/electronic-reporting-air-emissions/cedri">https://www.epa.gov/electronic-reporting-air-emissions/cedri</a>.
---------------------------------------------------------------------------
For a more detailed discussion of these final amendments, see
section II.B.6 of the preamble to the 2020 Proposed Rule (85 FR 54178),
as well as section III.B of this preamble on compliance with the
Paperwork Reduction Act (PRA). For a more thorough discussion of
electronic reporting, see the memorandum, Electronic Reporting
Requirements for New Source Performance Standards (NSPS) and National
Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, which
is available in the docket (see Docket EPA-HQ-OAR-2003-0156) for this
rulemaking.
4. Technical Edits, Clarifications, and Additional Revisions
We are finalizing several of the revisions that we proposed for
technical corrections, harmonizing changes, clarifications, and
improvements to the OSWI standards in the 2020 Proposed Rule, with the
exception of certain proposed changes related to testing or compliance
requirements for VSMWC and IWI units with capacities less than or equal
to 10 TPD that we are finalizing with revisions (see sections III.F.1
and III.G of this preamble). These revisions include:
<bullet> Including operating limits and operating parameter
monitoring requirements for additional controls that may be employed
for OSWI units, including dry scrubbers, electrostatic precipitators,
and fabric filters, and revisions to clarify that OSWI units that use
an alternate method for air pollution control may petition the EPA for
specific operating parameter limits.
<bullet> Revising the requirements for owners and operators of OSWI
units using control options to require that the minimum operating
parameters (e.g., combustion operating chamber temperature, pressure
drop, liquid flow rate, etc.) established for initial compliance are
calculated based on the lowest 1-hr average as measured during the most
recent performance test (or representative performance test)
demonstrating compliance, and revising the continuous compliance
requirements to specify the averaging times for continuous compliances
for operating parameters for the extended control options (which is
generally based on 3-hour rolling averages).
<bullet> Clarifying that for continuous monitoring, the 12-hour
rolling average values must include CEMS data during startup and
shutdown.
<bullet> Adding a requirement that the incinerator operator
training course under 40 CFR 60.2905(c) and 40 CFR 60.3014(c) must
include coverage of good combustion practices as well as waste
characterization procedures, and related actions for prevention and
correction of malfunctions.
<bullet> Adding a provision to 40 CFR 60.2911 and 40 CFR 60.3020 to
clarify that batch units must always have a qualified operator
accessible times during the operation of the unit.
<bullet> Updating 40 CFR 60.2890 and 40 CFR 60.2998 to clarify the
principal components of the subparts include definitions and table.
<bullet> For existing units, adding new section 40 CFR 60.3003 to
clarify that certain substitute means of compliance demonstration
requirements must be completed prior to the compliance date.
<bullet> Modifying 40 CFR 60.2910 to 40 CFR 60.3019 to clarify that
site-specific documentation must include procedures for establishing
initial and continuous compliance.
<bullet> Updating requirements for initial and annual performance
tests such that they must be conducted according to the methods and
meet the revised emissions limitations specified in tables 1 through 1b
to subpart EEEE and tables 2 and 2a to subpart FFFF, as applicable.
<bullet> Updating 40 CFR 60.2922(e), 40 CFR 60.2940(c), 40 CFR
60.3027(e), and 40 CFR 60.3039(c) to add references to ASME/ANSI PTC
19.10-198 Part 10 (2010), ``Flue and Exhaust Gas Analyses'' (previously
approved as an alternative method to EPA Method 3B in the 2005 OSWI
rule).
<bullet> Adding an additional test method, ASTM D7520-16,
``Standard Test Method for Determining the Opacity of a Plume in the
Outdoor Ambient Atmosphere,'' as an acceptable alternative to EPA
Method 9 for opacity. This test method was identified as an acceptable
alternative to EPA Method 9 when specific provisions are followed.
<bullet> Revising 40 CFR 60.2932(d) and 40 CFR 60.3033(d) to
specify that VSMWC and IWI units with capacities less than or equal to
10 TPD using control devices must continuously monitor operating
parameters and specifying the averaging values to demonstrate
continuous compliance.
<bullet> Revising 40 CFR 60.2939 and 40 CFR 60.3038 (requirements
for installation and calibration of CEMS) such that they apply only to
OSWI units with a capacity greater than 10 TPD.
<bullet> Clarifying the installation and calibration requirements
for operating parameter equipment in 40 CFR 60.2944 and 40 CFR 60.3043,
including adding new requirements for bag leak detection systems.
<bullet> Revising 40 CFR 60.2949(b) and 40 CFR 60.3046(b) to
incorporate
[[Page 27923]]
recordkeeping for data from OSWI units that use an alternate method for
air pollution control beyond a wet scrubber, dry scrubber,
electrostatic precipitator, fabric filter, or other method such as
material balance.
<bullet> Clarifying that for CO CEMS, records of annual performance
evaluations must be maintained (40 CFR 60.2949(g) and 40 CFR
60.3046(g)).
<bullet> Adding a recordkeeping requirement for notifications
submitted for excluded units, such as temporary-use incinerators.
<bullet> Revising 40 CFR 60.2954 to clarify that a copy of the
waste management plan must be submitted following the initial
performance test, for consistency with 40 CFR 60.3049(c).
<bullet> Clarifying that for facilities with a title V permit, the
permit may address the submittal timeline of the annual report (40 CFR
60.2955, 40 CFR 60.3050).
<bullet> Minor clarifications to the content of the annual reports
and deviation reports, including what information must be submitted if
a performance test is conducted during the annual period and what
information may be excluded if the reports are submitted via CEDRI (40
CFR 60.2956, 40 CFR 60.3051).
<bullet> Other minor grammatical or technical edits (e.g.,
corrections to typographical errors or cross-references within existing
provisions, or to clarify existing provisions).
We are also including several additional minor clarifying edits in
the final rule based on comments received during the public comment
period, such as adjusting the testing requirements for seasonal weather
issues. The comments and our responses can be found in section IV.B.1
of this preamble and in the Summary of Public Comments and Responses
for the Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Other Solid Waste
Incineration Units Review, available in the docket for this rulemaking.
G. What are the effective and compliance dates of the standards?
In the 2020 Proposed Rule, we established that OSWI units with
capacities less than or equal to 10 TPD that commenced construction
after August 31, 2020 are new units and those that commenced
construction prior to August 31, 2020 are considered existing
incineration units. We are finalizing the effective and compliance
dates for OSWI units to distinguish between new and existing OSWI units
and to require any incinerator already subject to a current OSWI
standard to continue to comply with that standard until the effective
date of the revised OSWI standards. Table 4 of this preamble provides
the applicable compliance dates for new and existing OSWI units.
The effective date of this final action is August 29, 2025. We are
finalizing the compliance dates for the amended rule as proposed. The
compliance dates depend on whether the OSWI unit is a VSMWC or IWI unit
with capacity less than or equal to 10 TPD, or a VSMWC or IWI unit with
a capacity greater than 10 TPD, and whether the OSWI unit is a new or
existing unit.
However, we are are revising the dates by which a source is
considered a new source to be consistent with the construct of CAA
sections 111 and 129. A new VSMWC or IWI unit is a unit that commenced
construction after August 31, 2020, or commenced modification or
reconstruction on or after December 29, 2025. Sources that commenced
construction after December 9, 2004, or commenced reconstruction or
modification on or after June 16, 2006, which are currently new sources
under the 2005 OSWI rule, will become existing sources. However, these
sources must continue to comply with the requirements of 40 CFR part
60, subpart EEEE, including the emission limits in table 1 to the
subpart, until the unit is subject to 40 CFR part 60, subpart FFFF
through an approved state plan or Federal plan. The 2005 OSWI rule
emission limits for new and existing sources were identical, so the
stringency of the limits and ability of the unit to comply with the
limits is not changing for sources which were new sources under the
2005 OSWI rule and will becoming existing sources under the this final
rule.
Similarly, as discussed in sections III.C and IV.A of this
preamble, SRIs which are currently regulated under the CISWI rules will
become subject to regulation under the OSWI rule in this final action.
We believe that all or most of these units will be VSMWCs with
capacities less than or equal to 10 TPD. If any SRIs meet the
definition of a new unit, then these new units must demonstrate
compliance with the final rule by no later than December 29, 2025, or
by the date the unit first begins operation, whichever is later. If any
SRIs do not meet the definition of a new unit, then these units must
demonstrate compliance by July 1, 2030 or 3 years after the effective
date of the state plan approval, whichever is earlier. However, SRIs
that do not meet the definition of a new unit, and which are currently
regulated under the CISWI rules must continue to demonstrate compliance
with subpart CCCC or DDDD of this part, or subpart IIIa of part 62,
until the unit becomes subject to the requirements of an approved state
plan or federal plan that implements subpart FFFF of this part
(Emission Guidelines and Compliance Times for Other Solid Waste
Incineration Units).
Table 4--Compliance Schedule for New and Existing Units
----------------------------------------------------------------------------------------------------------------
For. . . Complete this action By this date
----------------------------------------------------------------------------------------------------------------
New units as defined in 40 CFR Initial Performance 60 days after unit reaches the charge rate at
60.2886. Test. which it will operate, but no later than 180
days after its initial startup.
Existing units as defined in 40 CFR Initial Performance No later than 180 days after final compliance
60.2992. Test. date.
New units as defined in 40 CFR Initial Performance 60 days after unit reaches the charge rate at
60.2015. Test. which it will operate, but no later than 180
days after its initial startup.
Existing units as defined in 40 CFR Initial Performance No later than 180 days after final compliance
60.2550. Test. date.
New units subject to requirements in Annual performance test No later than 14 calendar months following the
40 CFR 60.2932(a). initial performance test.
Existing units subject to Annual performance test No later than 14 calendar months following the
requirements in 40 CFR 60.3033(a). initial performance test.
----------------------------------------------------------------------------------------------------------------
[[Page 27924]]
This action eliminates the SSM provisions at 40 CFR 60.2918 and 40
CFR 60.3025 and adds electronic reporting. Eliminating the SSM
provisions will provide more data on emission limits and operating
limits. As noted at proposal, the finalized electronic reporting
provisions will reduce burden on regulated facilities, delegated air
agencies, and the EPA. Accordingly, we are finalizing the removal of
SSM provisions and the addition of electronic reporting for all OSWI
units. As stated in section III.F.3 of this preamble, for deviation
reports and annual compliance reports, the final rule requires owners
and operators to use the appropriate spreadsheet template to submit
information to CEDRI beginning June 30, 2026, or once the reporting
forms have been made available in CEDRI for at least 1 year, whichever
date is later. The final rule requires owners and operators to submit
performance test reports and CEMS performance evaluation reports to
CEDRI beginning on December 29, 2025.
1. OSWI Units With Capacities Less Than or Equal to 10 TPD
For VSMWC and IWI units with capacities less than or equal to 10
TPD, we are finalizing revised MACT standards and revised compliance,
monitoring, and testing requirements. For new sources, CAA section
129(f)(1) requires that performance standards and other requirements
shall be effective 6 months after the promulgation of the final rule.
For these purposes, a new VSMWC or IWI unit with capacity less than or
equal to 10 TPD is a unit that commenced construction after August 31,
2020, or commenced modification or reconstruction on or after December
29, 2025. We are finalizing, as proposed, that these new units must
demonstrate compliance with the final rule by no later than December
29, 2025, or by the date the unit first begins operation, whichever is
later.
For existing sources, CAA section 129(f)(2) provides that the
performance standards and other requirements shall be effective not
later than 3 years after the state plan is approved or July 1, 2030,
whichever is earlier. For these purposes, an existing VSMWC or IWI unit
with capacity less than or equal to 10 TPD is one for which
construction commenced on or before August 31, 2020.
For existing VSMWC and IWI units with capacities less than or equal
to 10 TPD, we are finalizing a compliance date of July 1, 2030, or 3
years after the effective date of the state plan approval, whichever is
earlier.
OSWI units with a capacity less than 10 TPD that commenced
construction after December 9, 2004, or commenced reconstruction or
modification on or after June 16, 2006, and that are subject to the
2005 OSWI standard must continue to comply with the 2005 OSWI standard
until the unit is subject to 40 CFR part 60, subpart FFFF through an
approved state plan or Federal plan.
2. OSWI Units With Capacities Greater Than 10 TPD
Under the final rule, OSWI units with a capacity greater than 10
TPD continue, with limited changes, to be subject to the requirements
of the OSWI standards that were promulgated in 2005--either the NSPS or
a plan promulgated pursuant to the EG. With certain exceptions
(discussed below), these sources will continue to follow the emission
and operating limits, including compliance, monitoring, and testing
provisions, associated with the 2005 OSWI standards. However, because
the definition of a new source is being revised, the compliance dates
are changing in the final rule. Emissions and operating limits apply to
new OSWI units with a capacity greater than 10 TPD when they begin to
operate, although there are some pre-construction requirements (see 40
CFR 60.2881). For existing OSWI units with a capacity greater than 10
TPD (that is, OSWI units that commenced construction on or before
August 31, 2020, or commenced reconstruction or modification before
December 29, 2025), CAA section 129(f)(2) provides that performance
standards and other requirements shall be effective as expeditiously as
practicable after approval of a state plan or promulgation of a Federal
plan, but no later than 5 years after they are promulgated. Therefore,
compliance for existing sources must be demonstrated by July 1, 2030,
or 3 years after the effective date of the state plan approval,
whichever is earlier. However, incineration units with a capacity
greater than 10 TPD that commenced construction after December 9, 2004,
or commenced reconstruction or modification on or after June 16, 2006,
and that are subject to the 2005 OSWI standard must continue to comply
with the 2005 standard until the unit is subject to 40 CFR part 60,
subpart FFFF through an approved state plan or Federal plan.
IV. Public Comments and Responses
Additional comments and our specific responses can be found in the
comment summary and response document titled Summary of Public Comments
and Responses for the Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Other Solid Waste
Incineration Units Review, which is available in the docket (see Docket
EPA-HQ-OAR-2003-0156) for this rulemaking. Key comments and responses
are discussed below.
A. What key comments did we receive on the applicability of OSWI
requirements, and what are our responses?
Comment: The EPA received several comments on the proposed
revisions to add a definition of ``rudimentary combustion unit''. One
commenter did not support the proposed addition of a definition,
expressing concerns that prematurely changing the definition puts the
EPA on track to develop regulations without appropriate data. The
commenter requested that EPA conduct an advanced notice of proposed
rulemaking to ask for additional data and work with and provide
resources to Tribes to collect this data.
Other commenters supported the proposed changes, but at least one
commenter recommended that the definition be simplified to provide ease
of compliance. One commenter stated that the definition should include
a ``non-exhaustive'' list of what units meet the definition of a
rudimentary combustion device, such as cyclonic burn barrels, 55-gallon
burn barrels, and locally obtained or manufactured burn receptables
such as dumpsters.
The commenter also provided input on the individual criteria that
EPA proposed as part of the definition. Specifically, commenters noted
that the wording ``managing air flow and discharging flue gases from
combustion'' is confusing. The commenters stated that in any combustion
device, a stack, chimney or pipe is used to remove the post-combustion
flue gases or to direct the exhaust gas to the atmosphere, and that the
air flow (combustion air) is handled, controlled, and metered at the
burden. Commenters therefore recommended that the text ``managing air
flow'' be removed.
Commenters also questioned the meaning of the criterion ``burners
designed to manage the combustion process''. Commenters stated that
EPA's intent is unclear and that if the criterion is meant to include
any devices that have burners or a specific type of burner (e.g.,
burner with modulating or staging controls) then the language should be
updated to ``designed to initiate and/or maintain or assist the
combustion process'' or to more clearly explain the type of burner.
Commenters also
[[Page 27925]]
questioned the meaning of ``supplemental fuel burners or nozzles'' as
included in the proposed definition. Commenters stated that if the
intent is to not include devices with a specific type of burner and
``supplemental fuel burners or nozzles'' or to exclude devices equipped
with secondary combustion, this should be more plainly stated.
One commenter added that the proposed definition's inclusion of a
capacity limit of ``less than or equal to 10 TPD that is designed and
constructed without one or more of the following elements'' may
inadvertently discourage businesses or villages from acquiring small
modern packaged incinerators that are cleaner burning but that are
equipped with all five elements. The commenter noted that rudimentary
combustion devices will almost exclusively be hand-fed in portable
(hand-carried) batches, and that 10 TPD of hand-held or delivered
batches would be equivalent to 500 individual batches, daily.\14\ The
commenter stated that this amount exceeds the realistic expectations of
the population statistics of the average village communities using such
devices. The commenter suggested that the rationale of a specific
number for capacity or throughput deserves additional consideration,
especially in consideration of the recordkeeping requirements that
would be required for compliance with weight throughput limitations
(which would be excessive for remote areas and ineffective for most
batch units). The commenter questioned what recordkeeping or reporting
would be required to verify compliance, especially provided that these
activities generally fall below permitting thresholds. The commenter
suggested that the EPA may want to consider setting a volume limit
threshold for these devices (e.g., ``smaller than a dump truck''), or
consider adding the qualifier ``uncompacted, loose'' to the type of
trash that may be burned in such devices. Another commenter requested
that EPA consider the potential unintended consequences of any future
regulation of such devices. Specifically, the commenter stated that the
EPA must not force communities with few resources to purchase
commercially available combustion devices.
---------------------------------------------------------------------------
\14\ Per 40 CFR 60.2977 (Subpart EEEE) and 40 CFR 60.3078
(Subpart FFFF), a batch OSWI unit means an OSWI unit that is
designed such that neither waste charging nor ash removal can occur
during combustion, and a continuous OSWI unit means an OSWI unit
that is designed to allow waste charging and ash removal during
combustion.
---------------------------------------------------------------------------
Other commenters criticized the proposed definition as overly broad
and lacking in protective provisions, by not adequately narrowing the
circumstances, locations, or devices that would be eligible. Commenters
supported including restrictions to ensure that the use of such units
is limited to those areas that truly have no better options, including
very clear descriptions and specifics about the types of devices that
are included in the definition of ``rudimentary combustion device'' and
the criteria that must be met for a geographic area to qualify, so that
only those with the logistical challenges described in the proposal
will be eligible for the exemption. Other commenters expressed that the
proposed rule did not define the circumstances or restrictions under
which rudimentary combustion devices may be used and recommended that
the EPA add a clarification to the definition to avoid use of the
devices where access to municipal solid waste disposal is readily
available or where installation of such devices could result in the
circumvention of the OSWI standards. Commenters also objected to the
proposed definition as it would apply in their jurisdiction, which
prohibits open burning; the commenters warned the definition is
confusing and could lead to an increase in air pollution.
Several commenters requested that the EPA provide more clarity on
what geographic areas would be qualified to be exempt from the OSWI
regulations. A commenter noted that Alaska is geographically diverse,
with areas of limited or no road access, and that the EPA should
clarify whether units in the following circumstances are exempt: (1)
devices located in rural areas not accessible by the Federal Aid
Highway System, including what distance from the road area is necessary
for exemption; (2) devices transported and utilized by oil spill
prevention and response teams in remote areas for response cleanup; (3)
devices located in municipal areas at businesses or other commercial
institutions that may have refuse service provided they are only used
for on-site generated waste; and (4) devices located at industrial
facilities along the Federal Aid Highway system that are days away from
waste disposal facilities, including what distance from an organized
landfill or from an improved road system qualifies for exemption. One
commenter added the rule should ensure that use of a rudimentary
combustion device would not be allowed when it conflicts with more
stringent state or local rules and regulations. Other commenters
generally opposed the broad applicability of the definition of
rudimentary combustion unit throughout the U.S., recommending that the
EPA adjust the definition to pertain specifically to Alaska, and take
time to develop standards for the rest of the country.
One commenter also requested that the EPA consider providing clear
rules related to the use of rudimentary combustion devices during
emergency remote spill responses. The commenter explained that the
waste from such spills is effectively managed through incineration in
small batch cyclonic burn barrels or other devices. The commenter
requested that any rules on such usage be easy to interpret such that
they do not require EPA agency interpretation or concurrence prior to
use (including any limitations on the type of device that is a
``rudimentary combustion device'' or any limitations on geographic
siting requirements). The commenter stated that if EPA concurrence
remains necessary during an emergency spill, the authority should be
granted to EPA Federal On-Scene Coordinators regardless of the disaster
classification of the response.
Response: In the final rule, we are adopting a definition of
``rudimentary combustion device'' to be a combustion device with a
capacity less than or equal to 10 TPD that is designed and constructed
without one or more of the following elements: (1) a stack, chimney, or
pipe designed for the purpose of discharging flue gases from
combustion; (2) mechanical draft to provide air flow; (3) burners
designed to initiate and/or assist the combustion process, including
burners designed to burn supplementary fuel; or (4) an ancillary power
supply to operate.
For the final rule, we have revised the applicability of the final
OSWI standards as proposed in the 2024 SNPRM to address issues and
concerns raised for small units that are rudimentary combustion
devices. The EPA is finalizing its decision to add a definition for
``rudimentary combustion device'' to distinguish these types of
primitive devices from those addressed in today's rule. The EPA agrees
with commenters regarding certain clarifications to the criteria
included in the proposed definition, specifically, removal of text
related to the use of a stack for ``managing air flow'' and the
clarification of text describing the type of burners included in the
criterion. The EPA is removing the phrase ``managing air flow'' to
reduce confusion regarding the stack function. We are also clarifying
the criterion regarding burners to manage the combustion process. We
are adopting language similar to what commenters suggested to indicate
that we mean burners that
[[Page 27926]]
initiate and/or assist with combustion. In light of this clarification,
we have also lumped supplementary fuel burners in with other burners
that mangage the combustion process, as the purpose of supplementary
fuel is to initate combustion or to aid in better combustion.
We disagree with commenters who requested a specific list of unit
types that are considered rudimentary combustion devices, but rather,
acknowledge that a number of combustion unit types may be considered
``rudimentary'' if they have a capacity of less than 10 TPD and were
designed or constructed without one of more of the defined criterion.
As described in the 2024 SNPRM, the EPA identified rudimentary
combustion devices as primarily located within the state of Alaska, and
consulted with state and Tribal agencies in the state of Alaska in
assessing the types of combustion devices referenced. We determined
that these rudimentary devices are often primitive in nature, most
often not commercially constructed or engineered, and have capacities
less than 10 TPD. Although we solicited comment on the matter, we did
not receive any comments on the 2024 SNPRM that provided additional
information or data on the typical capacity or volume thresholds for
these units, and as such, are maintaining the proposed capacity
threshold of 10 TPD; this threshold remains appropriate as we
anticipate that all rudimentary combustion devices that fail to include
the design elements included in the definition, by their nature and
construction, would have capacities less than 10 TPD. We emphasize that
the final rule does not set standards for these rudimentary combustion
devices because they lack key features of commercially available
incineration units and the emissions information, limits, and controls
developed for the OSWI rule are not appropriate for them. The EPA is
therefore not setting emission standards for these units in this rule.
Although we solicited comment on the location of units, number of
units in rural communities, and emissions information from these units
in the 2024 SNPRM, we did not receive any additional information in
response to the 2024 SNPRM. The Agency intends to consider requirements
for these units in a future effort and would seek additional
information regarding these units and the impacts of any regulations at
that time. Because we received no information in response to our 2024
SNPRM solicition, the EPA is also not setting requirements or
restrictions regarding the geographic location or circumstantial
restrictions on the use of rudimentary combustion devices under the
OSWI standards; the definition of rudimentary combustion device in the
final OSWI rules applies to the entire United States. The final rules
do not usurp existing local or state regulations that may apply to
these units, which will continue to apply.
Comment: We received one comment contending that the proposal fails
to set CAA section 129 standards for previously excluded units and
therefore contravenes the CAA and violates the EPA's obligations under
a consent decree and pursuant to the voluntary remand. The commenter
stated that the proposed regulations expressly exempt or exclude a wide
variety of other waste combustion units, including: (1) solid waste-
burning cement kilns; (2) various waste-burning boilers and process
heaters; (3) residential incinerators; (4) agricultural waste
incinerators; (5) wood waste incinerators; (6) construction and
demolition waste incinerators; (7) crematories; (8) contaminated soil
treatment facilities; (9) rural IWIs; (10) incinerators and ACIs in
isolated areas of Alaska; (11) incinerators located on remote islands;
(12) temporary use incinerators used in disaster or emergency recovery
efforts; (13) units that combust contraband or prohibited goods; (14)
units burning national security documents; (15) co-fired combustors;
(16) institutional boilers and process heaters; and (17) pathological
waste incineration units. The commenter added that all of the
categories identified combust solid waste and none of them fall within
the narrow exemption of CAA section 129(g).
The commenter generally contends that, under CAA section 129, the
EPA must set standards for all solid waste incineration units, without
exception. The commenter further contends that, under CAA section 129,
the OSWI rule must set standards for all ``other'' incinerators, that
is, all incinerators not already subject to regulation under the EPA's
MWC rules, medical waste incinerator rules, or CISWI rules.
The commenter refers to a ``Partial Consent Decree'' entered in
Sierra Club v. Jackson, No. 01-1537 (PLF) (D.D.C.), under which the EPA
was to propose, by November 30, 2004, a rule establishing standards for
OSWI units and to promulgate, by November 30, 2005, a final rule
establishing such standards. The commenter contends that the EPA's
failure to set standards for various excluded types of combustion units
violates its obligations under that Partial Consent Decree.
The commenter also asserts that the EPA sought and obtained, in
2016, a ``voluntary remand'' of the OSWI standards from the court
(Sierra Club v. EPA, No. 06-1066 (D.C. Cir.)). The commenter states
that the EPA sought the voluntary remand to bring the OSWI standards
into compliance with certain decisions issued by the D.C. Circuit. The
commenter contends that the EPA's failure to set standards for the
excluded types of combustion units identified by the commenter (i.e.,
solid waste-burning cement kilns; various waste-burning boilers and
process heaters; residential incinerators; agricultural waste
incinerators; pathological waste incineration units, etc.) violates its
obligations pursuant to the voluntary remand.
The commenter further claims that the EPA's failure to set
standards for currently unregulated incinerators fails to satisfy CAA
section 129(a)(5). The commenter cited Louisiana Environmental Action
Network v. EPA, 955 F.3d 1088 (D.C. Cir. 2020) (LEAN), and maintained
that the EPA is required, in the course of a CAA section 129(a)(5)
rulemaking, to bring its OSWI standards into compliance with the CAA
and that the EPA's failure to set standards for all OSWI units,
including the excluded incinerators, in the course of its CAA section
129(a)(5) rulemaking, violates that section.
The commenter further cited NRDC v. EPA, 489 F.3d 1250 (D.C. Cir.
2007), in which, the commenter said, the D.C. Circuit made clear that
institutional waste incinerators that recover energy are combusting
solid waste and must be regulated as incinerators under CAA section
129. The commenter added that the NRDC ruling holds that any unit that
combusts waste is an incinerator, whether it recovers energy or not.
The commenter stated that EPA sought and obtained a voluntary remand
allegedly to address the aspects of its rule that are inconsistent with
NRDC. The commenter added that EPA's failure to change its definition
of institutional waste incinerator to include units that recover energy
is flatly unlawful and displays contempt for the Clean Air Act and the
courts and bad faith in implementation of the unopposed remand.
Response: As the commenter recognizes, we proposed the definition
of ``other solid waste incineration unit'' on the 2004 proposal for the
OSWI standards to cover very small municipal waste combution units and
institutional waste incineration units but proposed to exclude certain
types of other units (see 69 FR 71472, December 9, 2004). In response
to the 2004 proposal for the
[[Page 27927]]
OSWI standards, the EPA received comments concerning the proposal to
exclude various units from the OSWI standards, and the EPA addressed
comments on both covered and excluded units at that time (70 FR 74870,
74874-74881; December 16, 2005). The EPA was challenged on the 2005
OSWI rule (Sierra Club v. EPA, No. 06-1066, (D.C. Cir.)), which
eventually led to the 2016 voluntary remand of the 2005 OSWI rule.
The EPA disagrees with the assertion that the EPA failed to satsify
its obligations under the Partial Consent Decree entered in Sierra Club
v. Jackson, No. 01-1537 (PLF) (D.D.C.). Under the Partial Consent
Decree, the EPA was required to issue a final rulemaking establishing
standards for OSWI units under CAA section 129(a)(1)(E) on or before
November 30, 2005. The Partial Consent Decree contained no requirmenets
regarding the content of the regulation. The EPA satisfied this
obligation by signing the final rulemaking titled, ``Standards of
Performance for New Stationary Sources and Emission Guidelines for
Existing Sources: Other Solid Waste Incineration Units'' on November
30, 2005. 79 FR 74870.
The EPA disagrees that NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007),
requires the EPA to set emissions standards for all OSWI units,
``without exception.'' Rather, NRDC focused on whether the EPA could
determine that certain facilities that were combusting solid waste
could be regulated under CAA section 112, rather than CAA section 129.
The NRDC decision held that the statutory definition of ``solid waste
incineration unit'' is clear and unambiguous and does not permit the
EPA to exclude commercial and industrial units combusting solid waste
from regulation under CAA section 129. However, the NRDC decision does
not address whether the EPA is required to establish emissions
standards for all ``other categories'' of solid waste incineration
units, as opposed to commercial or industrial incinerators, which are
categories Congress clearly required to be regulated. EPA is continuing
to assess the the NRDC decision, which vacated the EPA's definition of
``commercial or industrial solid waste incineration unit'' because it
excluded some units combusting solid waste for the purpose of energy
recovery, but has not yet proposed to take action following remand on
whether the language in section 129(a)(1)(E) requires requires
regulation of ``every [ ] possible type of incinceration unit burning
any type of solid waste.'' See 70 FR at 74875.
We further disagree with the commenter's contention that the EPA is
required, in the course of a periodic review of the OSWI standards
under CAA section 129(a)(5), to set standards for all solid waste
incinerators that are not already regulated under the rules for
municipal waste incinerators; hospital, medical or infectious waste
incinerators; or commercial or industrial waste incinerators. The LEAN
(955 F.3d 1088 (D.C. Cir. 2020)) decision considered standards set
under CAA section 112(d)(6). CAA section 112(d)(6) applies to
``emission standards promulgated under [section 112].'' CAA section 129
applies to a specific category of sources: non-hazardous solid waste
incinerators. In CAA section 129, Congress itself designated the source
categories to be regulated. CAA section 112, on the other hand,
delegates to the Administrator the authority to identify source
categories to regulate and to set emission standards for them, CAA
sections 112(c) through (d). By contrast, in CAA section 129, Congress
specifies sources that the EPA must regulate:
<bullet> ``[S]olid waste incineration units with capacity greater
than 250 [TPD] combusting municipal waste.'' (Italics added.)
<bullet> ``[S]olid waste incineration units with capacity equal to
or less than 250 [TPD] combusting municipal waste and units combusting
hospital waste, medical waste and infectious waste.'' (Italics added.)
<bullet> ``[S]olid waste incineration units combusting commercial
or industrial waste.'' (Italics added.)
However, Congress left ``the promulgation of standards under
section 7411 of this title and this section applicable to other
categories of solid waste incineration units'' (CAA section
112(a)(1)(e)) up to the Administrator's discretion.
CAA section 112(d)(6), the section of the CAA considered in LEAN,
requires a periodic review (every 8 years) of standards promulgated
under CAA section 112. LEAN did not discuss nor make any decisions
concerning the scope or nature of the EPA's periodic review under CAA
section 129(a)(5). The discussion in LEAN focused on the precise
language in CAA section 112(d)(6), which differs from the language of
CAA section 129(a)(5). Specifically, CAA section 112(d)(6) requires
that the EPA periodically ``review, and revise as necessary'' CAA
section 112 emission standards. CAA section 129(a)(5) requires that the
EPA ``review, and in accordance with this section and section [111] of
this title, revise'' the CAA section 129 standards and requirements.
The language within CAA section 129(a)(5) does not otherwise cross-
reference CAA section 112. Further, the ``as necessary'' language in
CAA section 112(d)(6) (which is not found in CAA section 129(a)(5)) was
key to the decision in LEAN. The decision notes, for example, that the
``only question'' was ``whether the EPA lawfully may complete a section
112(d)(6) review and `revise' an existing underinclusive emission
standard `as necessary' without supplying the missing controls.'' 955
F.3d at 1096.
The commenter claims that the language of CAA section 129(a)(5) is
``closely analogous'' to CAA section 112(d)(6), and therefore imposes
the same obligation the LEAN court found. The EPA disagrees. The two
key features of the statutory language the LEAN court pointed to in CAA
section 112(d) are not at issue here. The court first noted that the
``standards'' referred to in CAA section 112(d)(6) must include limits
for each HAP the category emits, and an ``emission standard'' under
that provision ``includes as many limits as needed to control all the
emitted air toxics of a particular source category.'' LEAN at 1097. In
contrast, CAA section 129 requires the EPA to establish emissions
standards only for certain, specified pollutants. Even if ``emission
standard'' as used in CAA section 129(a)(5) refers to all limits, the
EPA has established those limits for the specified CAA section 129
pollutants.
The commenter also claims that the EPA's failure to propose, here,
to eliminate the various excluded units in 40 CFR 60.2887 and 40 CFR
60.2993 and as identified by the commenter (i.e., solid waste-burning
cement kilns; various waste-burning boilers and process heaters;
residential incinerators; agricultural waste incinerators; pathological
waste incineration units, etc.) from the OSWI standards and expand the
applicability or coverage of the standards fails to satisfy the terms
of the voluntary remand granted by the D.C. Circuit in 2016. The EPA
sought and obtained a voluntary remand of the 2005 OSWI rule ``to allow
the EPA to consider what potential revisions, if any to the final rule
may be appropriate in light of relevant decisions including Sierra Club
v. EPA, 479 F.3d 875 (D.C. Cir. 2007), NRDC v. EPA, 489 F.3d 1250 (D.C.
Cir. 2007), and Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008).''
\15\ As explained in the 2020 proposal and above, this final action
addresses certain issues involved in the 2016 voluntary remand of the
OSWI standards
[[Page 27928]]
including changes to the SSM provisions and revised subcategories and
MACT standards that better reflect actual emissions test data from OSWI
units and the population of OSWI. The EPA is continuing to evaluate
other aspects of the remand not addressed in this final action.
---------------------------------------------------------------------------
\15\ Motion for Voluntary Remand, Sierra Club v. EPA, no. 06-
1066 (D.C. Cir. filed Jan. 29, 2016).
---------------------------------------------------------------------------
For the final rule, we have revised the applicability of the final
OSWI standards to address issues and concerns raised for units that are
rudimentary combustion devices. As discussed in section III.B and above
in this section IV.A of this preamble, the EPA is finalizing adding a
definition for ``rudimentary combustion device'' to address certain
combustion devices that lack key elements typical of incineration
units. Because the EPA believes that rudimentary combustion units lack
key elements of other OSWI incineration units, the emissions
information, limits, and controls developed for the OSWI rule are not
appropriate for them. Any limits that the EPA may set for rudimentary
combustion units in the future would be based on information and data
that are appropriate for those units.
Comment: One commenter requested that the EPA clarify the
applicability of the CISWI standards and the OSWI standards, asserting
that as proposed, the same units that meet the definition of a ``small
OSWI unit'' in the OSWI standards also meet the definition of a
``commercial and industrial solid waste incineration unit'' under the
CISWI standard. The commenters stated that this potential confusion is
not entirely eliminated by 40 CFR 60.2020(j) and 60.2555(j) of the
CISWI rules that state that units subject to 40 CFR part 60, subparts
EEEE or FFFF are exempt from the CISWI standards or by 40 CFR
60.2887(d) and 60.2993(d) in the OSWI rules that state units subject to
40 CFR part 60, subparts CCCC and DDDD are exempt from the OSWI
standards. The commenter specifically urged the inclusion of a new
paragraph in 40 CFR 60.2887 and 40 CFR 60.2993 of the OSWI rules that
states: ``Incinerators in Alaska that meet the definition of small OSWI
unit under subparts EEEE and FFFF of this part are not subject to
subparts CCCC or DDDD.''
Response: We agree with commenters that clarification regarding the
applicability of CISWI to certain units located in the State of Alaska
that are now subject to OSWI is warranted. However, the commenter's
proposed language to add an exclusion for units subject to 40 CFR part
60, subparts EEEE and FFFF from CISWI is inappropriate for OSWI.
Instead, we are finalizing revisions to the CISWI NSPS and EG that
clarify the applicability of the standards to small remote incinerators
that may now be subject to the OSWI standards, specifically the
standards for VSMWC. In 2024, the EPA finalized development of a
Federal plan implementing the CISWI standards in states that do not
have an approved state plan (89 FR 100092, December 11, 2024). The
final rule included revisions to exclude small remote incinerators in
the state of Alaska from the Federal plan, which reflected prohibitions
on the implementation of CISWI standards to units in the State of
Alaska that were implemented by Congress.\16\ To address the concerns
raised by commenters and to align the CISWI NSPS and EG with the CISWI
Federal plan, we are finalizing a similar amendment to the CISWI NSPS
and EG requirements at 40 CFR 60.2020 and 40 CFR 60.2555 to clarify
that small remote incineration units located in the State of Alaska are
not subject to the CISWI standards as specified in the Consolidated
Appropriations Act of 2024, H.R. 4366, section 432. However, because
existing units would not be subject to the control requirements in the
OSWI standards until they become subject to a state plan or Federal
plan that implements 40 CFR part 60, subpart FFFF, we have included
language within the exclusion to clarify that such units remain subject
to 40 CFR part 60, subparts CCCC or DDDD until the unit becomes subject
to a state plan or Federal plan that implements 40 CFR part 60, subpart
FFFF. The changes are consistent with final revisions to 40 CFR
60.2886(a)(5) and 40 CFR 60.2992(a)(3) to clarify the applicability
dates for OSWI units, as discussed in section IV.D of this preamble.
---------------------------------------------------------------------------
\16\ As specified in the Consolidated Appropriations Act of
2024, H.R. 4366, section 432, the EPA is precluded from ``expending
funds to implement or enforce certain EPA regulations for commercial
and industrial solid waste incineration units with respect to units
in the state of Alaska that are defined as small remote incinerator
until a subsequent regulation is issued.'' Consolidated
Appropriations Act, 2024. Public Law 118-42 (2024, March 8). <a href="https://www.congress.gov/bill/118th-congress/house-bill/4366/text">https://www.congress.gov/bill/118th-congress/house-bill/4366/text</a>. See also
89 FR 100097, December 11, 2024.
---------------------------------------------------------------------------
B. What key comments did we receive on the OSWI subcategories and
related MACT floor redeterminations?
Comment: One commenter contended that EPA has no authority to
create subcategories for Section 129 standards, and therefore, cannot
create subcategories in OSWI for units with capacities greater than 10
TPD and units with capacities less than 10 TPD. The commenter asserted
that while Section 112 allows EPA to ``distinguish among classes,
types, and sizes of sources within a category or subcategory in
establishing such standards,'' Section 129 does not have similar
language. The commenter added that Section 129 shows that Congress
considered which subcategories of incinerator it wanted, and that
Congress created them itself. The commenter stated that by creating
additional subcategories, EPA not only exceeds its statutory authority
but defies Congress's plainly expressed intent that the only
subcategories of incinerator would be those Congress expressly
enumerated in Section 129(a)(1). The commenter added that EPA's failure
to identify any statutory authority for its subcategories or to explain
why it believes it has such authority is unreasonable and arbitrary.
Response: CAA section 129(a)(2) states that ``The Administrator may
distinguish among classes, types (including mass-burn, refuse-derived
fuel, modular and other types of units), and sizes of units within a
category in establishing such standards.'' We interpret this language
as allowing us to develop subcategories for source categories being
regulated. Further, the EPA has cited this statutory authority for
other CAA section 129 subparts. The 1999 proposed CISWI rules clearly
state ``Categories may be divided into subcategories when differences
(such as design, fuel, or waste type, etc.) between given types of
units lead to corresponding differences in the technical feasibility of
applying emission control techniques'' (64 FR 67097, November 30, 1999)
and the 1995 HMIWI standards state, ``Section 129 states that the
Administrator may distinguish among classes, types, and sizes of units
within a category in establishing the standards and guidelines. In
other words, EPA may subcategorize the MWI source category in
establishing standards and guidelines'' (65 FR 10669-70, February 27,
1995). Therefore, we are establishing subcategories for OSWI (IWI and
VSMWC) as proposed based on size--including units that have capacities
greater than 10 TPD and units that have capacities less than or equal
to 10 TPD. Our decision to finalize subcategories for IWI and VSMWC
OSWI is further discussed in section III.C and this section of this
preamble.
Comment: One commenter contended that the EPA does not have
sufficient data on smaller units of less than or equal to 10 TPD to
establish emission limits and other requirements. Consequently, the
commenters stated that it is likely that requirements for larger units
will be unnecessarily placed on smaller units. Another commenter
explained that comparisons of emission
[[Page 27929]]
limits shown in the proposed rule to the emissions from the smaller
units under than 3 TPD are well below the emissions for larger
incinerators for a number of pollutants. The commenter specifically
compared the particulate matter and cadmium emissions limits for new
small OSWI units to the emission limits for SRIs under table 8 of the
CISWI rule, noting that the emissions limits for new small OSWI units
for these pollutants are below the corresponding CISWI limits, and
other limits for these units, including hydrogen chloride and
NO<INF>X</INF>, are very close to the SRI limits in the CISWI rule.
Commenters added that the proposed rule subjects incinerators with
capacity less than 3 ton per day to the same requirements even if the
emission profiles do not seem to justify the requirements to perform
enhanced control measures (such as wet scrubbers and baghouses). These
commenters included additional concerns related to the requirements to
install pollution controls such as wet scrubbers for SRIs in Alaska,
which they countered would only burden small operations and small
businesses. The commenters requested that EPA exempt small Alaska
incinerators with an operational capacity of less than or equal to 3
TPD from the final rules. One commenter suggested that EPA create a
third subcategory of units that have capacities less than or equal to 3
TPD and these units should be excluded if they incinerate greater than
30 percent MSW and are not regulated under the CISWI rule. Another
commenter stated that if EPA is going to regulate units with capacities
less than or equal to 3 TPD, it must collect additional information
from the small incinerator manufacturers and establish MACT floor
emission limits that are achievable.
Other commenters supported the regulation of small remote
incineration units under the OSWI standard, acknowledging that the
emission limits for small OSWI units developed in the 2020 Proposed
Rule were developed specifically based on test data from the Alaskan
SRI units, and in many cases, these units are unable to comply with the
emission limits for existing units under CISWI. These commenters
generally supported the creation of a subcategory for smaller OSWI
units but requested additional modifications and clarifications to the
subcategory. One commenter requested that EPA reconsider defining the
subcategory for small OSWI units based on the ``capacity'' of units
less than 10 tons of solid waste per day. The commenter pointed to the
prior subcategory for SRI units promulgated under CISWI, which is for
incineration units ``that combust 3 tons or less of solid waste per
day''. The commenter stated that it is unlikely that any SRI (as
included in the proposed emission limits) has the physical capacity to
burn 10 TPD, or that even any facility operating an SRI has the
capacity to generate 10 TPD of waste for incineration. The commenter
pointed to at least one SRI unit located at the ConocoPhillips Kuparuk
facility that has a manufacturer-listed capacity of over 10 TPD,
however, the commenter asserted that it does not reflect the actual or
practical capacity to combust solid waste because the manufacturer-
listed capacity includes the weight of the incinerated material, the
weight of the fuel used for combustion, the weight of air combusted,
and the weight of any moisture in the unit. The commenter added that,
in that case, the manufacturer-listed ``capacity'' is not strictly
limited to the capacity to incinerate solid waste and is greater than
its capacity for waste. The commenter added that it is ``pragmatically
impossible'' for the Kuparak unit to combust 10 tons of solid waste per
day, and that this capacity could not be reached even if the
incinerator usage was maximized to two consecutive 12-hour shifts; the
commenter provided that on average, the unit burns about 1.25 TPD and
has never exceeded 3 TPD despite the manufacturer's listed capacity.
The commenter requested that EPA clarify that the 10 ton per day
capacity language used to differentiate the small OSWI subcategory
reflects a practical or operational ``capacity'' to incinerate waste
and not a manufacturer listed capacity that may reflect non-waste fuel,
air, and moisture. The commenter asked EPA to change the size threshold
to reflect the amount of solid waste the unit combusts. The commenter
added that defining the subcategory on the amount of solid waste
combusted, as was done in the CISWI rule, is a better approach.
Response: Regarding the comments that EPA should set the capacity
for small OSWI units considering the capacity of SRI units currently
regulated under CISWI, we disagree. As we described in the proposal,
the EPA has sufficient data from several small remote incinerators from
testing conducted in both 2010 and 2014 to calculate emission limits
using the same statistical intervals used to calculate the CISWI SRI
emission limits (see 85 FR 54185).\17\ We collected test data from 29
units of this size and proposed calculated emissions limits at the
level of the MACT floor which we have determined are representative for
VSMWC and IWI units with capacities less than or equal to 10 TPD in the
OSWI source category.\18\ The emission limits applicable to these units
already consider their size, since they are based on test data and
design information gathered from units of similar size. For these
reasons, we disagree with the request that the EPA categorically exempt
or create a separate subcategory for small Alaska incinerators with an
operational capacity of less than or equal to 3 TPD under the OSWI
rules.
---------------------------------------------------------------------------
\17\ See Docket Item No. EPA-HQ-OAR-2003-0156-0138 and the
memorandum entitled Small Remote Incinerator (SRI) Emissions Data
From CISWI in the docket for this action for more discussion on data
collected from small remote incinerators.
\18\ For more information about emission limit calculations, see
Emission Limit Calculations for Existing and New Sources for the
Final Other Solid Waste Incinerator (OSWI) Rulemkaing, available in
the docket for this action (Docket ID No. EPA-HQ-OAR-2003-0156).
---------------------------------------------------------------------------
Regarding the comment asking that the EPA clarify that the 10 ton
per day ``capacity'' language reflects a practical or operational
``capacity'' to incinerate solid waste, not a manufacturer listed
capacity, we generally disagree with the comment and believe the rules
are clear as written. When determining a unit's capacity in the context
of the OSWI rules, the owner or operator must use the ``design
capacity'' of the unit calculated using the equations in the
regulations. (See 40 CFR 60.2975) The ``capacity'' of continuous and
batch \19\ VSMWC units is defined in the rules--this contrasts with
emissions-based thresholds e.g., for prevention of significant
deterioration (PSD) applicability which considers enforceable physical
or operational constraints. While the OSWI rules sometimes refer to the
``maximum design waste burning capacity'' (see, e.g., 40 CFR 60.2953
and table 4), this phrase is also intended to describe the design
``capacity'' of OSWI units, with respect to the maximum design amount
of municipal solid waste or refused-derived fuel that may be charged
(not including air or moisture content or non-waste fuels). We believe
the design capacity is the most appropriate basis for subcategorization
under OSWI. Any other basis, such as operational load,
[[Page 27930]]
would likely be variable depending on operating conditions and could
therefore result in confusion about which standards are applicable to
the unit at which time. For this reason, the commenter's suggestion
that the subcategories be based on practical capacity to incinerate
waste is not feasible. Using design capacity, e.g., is consistent with
the requirements in 40 CFR, part 60, subpart AAAA, 40 CFR 60.1460(d)
and (e), which cover small municipal waste combustion units. We
recognize that in two situations, for exempting small municipal waste
combustion units that combust less than 11 TPD and for certain co-fired
combustors with a fuel limitation, 40 CFR part 60, subpart AAAA allows
federally enforceable permitting limits. We created the OSWI
subcategories for VSMWC and IWI units with capacities less than or
equal to 10 TPD due to differences in operation (e.g., batch versus
continuous/semi-continuous feed), equipment complexity and whether
emissions that are routed to a stack or flue could be routed to air
pollution control devices for these units. Additional discussion on the
final subcategories are in section III.C. of this preamble and in the
preamble to the proposed rule (85 FR 54183). An OSWI unit with a
capacity greater than 10 TPD may not comply with emission limits and
compliance requirements for units with capacities less than or equal to
10 TPD, and consequently, the final rule does not provide for
consideration of operational restrictions on the ``capacity'' of OSWI
units to avoid compliance requirements designed for such units. As
such, commenters are also incorrect that the rule subjects OSWI units
with capacities less than or equal to 10 TPD to the same requirements
for enhanced control measures (i.e., wet scrubbers and baghouses) to
meet emissions limits as those required for large units. In our
analysis of the MACT floor for VSMWC and IWI units with capacities less
than or equal to 10 TPD, we used data obtained from operating units
with capacities less than or equal to 10 TPD and have assumed that
additional units in these subcategories, should they exist, would be
similar in design, uncontrolled, and burn similar MSW-type waste as
those units reflected in the SRI dataset. Based on the data, we believe
that any VSMWC and IWI units with capacities less than or equal to 10
TPD would not require additional controls to meet the proposed
standards that are being finalized. We add that for the final rule we
have also revised the applicability of the final OSWI standards to
address issues and concerns raised for certain units with capacities
less than or equal to 10 TPD that may be considered rudimentary
combustion devices, as explained in sections III.B and IV.A of this
preamble.
---------------------------------------------------------------------------
\19\ Per 40 CFR 60.2977 (Subpart EEEE) and 40 CFR 60.3078
(Subpart FFFF), a batch OSWI unit means an OSWI unit that is
designed such that neither waste charging nor ash removal can occur
during combustion, and a continuous OSWI unit means an OSWI unit
that is designed to allow waste charging and ash removal during
combustion.
---------------------------------------------------------------------------
Comment: A commenter stated that EPA's decision to subcategorize
OSWI units greatly weakens the standards for the newly created small
OSWI subcategory, contravenes CAA section 129's floor provisions, and
is arbitrary. The commenter stated that some of or all these units--
certainly the best performing ones, those with the lowest emissions--
have already been meeting the EPA's existing standards consistently for
years. The commenter added that the average emission level achieved by
these units therefore cannot possibly be worse than the existing CISWI
standards. The commenter concluded that the floors cannot be worse than
the existing standards.
Response: We explained in the preamble to the proposed rule that
the prior floors were not based on OSWI units but on HMIWI units (85 FR
54183) and the SRI emissions test data used to calculate the emission
limits for the VSMWC and IWI with capacities less than or equal to 10
TPD subcategories are more representative of and better reflect the
emissions achievable for new and existing units in each category
required under CAA sections 129(a)(2) and (4). The standards are based
on the level of the MACT floor calculated using the SRI emission data
but are not identical to the CISWI standards because updated data and
procedures were used in the OSWI calculation.\20\ While the EPA does
not update MACT floors to be less stringent than existing limits for
the same subcategory based on the 5-year review process, the emission
limits for the VSMWC and IWI with capacities less than or equal to 10
TPD represent newly established subcategories. It is not appropriate to
compare the stringency of standards between rules or subcategories.
This means that neither the current CISWI standards nor the OSWI
standards for units with capacities greater than 10 TPD are appropriate
points of comparison for the new MACT floors.
---------------------------------------------------------------------------
\20\ For more information on the SRI data, see Document ID No.
EPA-HQ-OAR-2003-0156-0138. For more information about the MACT floor
calculation, see the memorandum Emission Limit Calculations for
Existing and New Sources for the Final Other Solid Waste Incinerator
(OSWI) Rulemaking available in the docket for this action (Docket ID
No. EPA-HQ-OAR-2003-0156).
---------------------------------------------------------------------------
C. What key comments did we receive on other amendments, and what are
our responses?
1. Testing and Compliance
Comment: We received one comment related to the proposed 12-month
deadline for annual compliance tests. The commenters stated the
proposed 12-month deadline at 40 CFR 60.2933 and 40 CFR 60.3034 creates
potential compliance problems over time for SRI operators in Alaska.
The commenters explained that testing on SRI units is more difficult
than on typical units, and the window for testing SRI units is
constrained by weather and may be impracticable during the long North
Slope winter season. The commenters stated the proposed 12-month window
creates issues of compliance date ``creep'' when operators seeking to
submit data reasonably in advance of the EPA deadlines (e.g., one week
early to ensure timely delivery), inadvertently and progressively push
the testing deadline earlier and earlier into the calendar year,
potentially into problematic testing periods for SRI units. The
commenters requested that the EPA set the annual compliance testing
deadline at 14 months, to allow operators flexibility to keep testing
in optimal weather windows over time. The commenters added that this is
consistent with the EPA practice for other rules and referenced 40 CFR
60.4415(a).
Response: We agree with the commenters' assertions that, for some
OSWI units, seasonal weather issues may not allow testing within exact
12-month intervals. To address this concern, the final rule requires
that annual performance tests be conducted no later than 14 months
following the initial performance test and subsequent annual
performance tests must be conducted within 14 months following the
previous performance test.
Comment: We received two comments supporting the proposed
alternative means to demonstrate compliance for VSMWC and IWI units
with capacities less than or equal to 10 TPD, but the commenters
contested that the proposed parameters (plus or minus 15 percent and on
a weekly basis) are too narrowly constrained. The commenters explained
that MSW mass generated by camp operations has the potential of being
highly variable by the nature of its span of contents including paper,
wood, yard wastes, food wastes, plastics, leather, rubber, and other
combustible materials. The commenters stated that managing mass may be
technically difficult for batch incinerators, as finite chamber volume
limits mass manipulation. The
[[Page 27931]]
commenters further stated that managing mass also could be affected by
short-duration projects that could cause food waste and other
combustible materials to flux at sites using continuous, intermittent,
or batch incinerators or where the incinerator is operated infrequently
(e.g., an incinerator operated only bi-weekly). The commenters provided
two examples of occasions when the weight ratio of incinerated waste
can be temporarily skewed. One example the commenters provided is
during facility ``turnaround'' periods when all meals are eaten on
disposable trays that have a very low weight-to-volume ratio, which can
temporarily skew the weight ratio of incineration units. The commenters
explained that some operators typically burn wooden pallets at the
bottom of their incinerators to facilitate the most efficient operation
of the unit, and that during turnaround where there is a high volume of
disposal trays, the weight of the pallets overshadows the light-weight
disposable trays, likely skewing the solid waste composition outside
the plus or minus 15 percent composition by weight requirement on a
weekly basis. Commenters also provided a second example: an occasion
when the weight ratio can be temporarily skewed during carcass
incineration, which is required on occasion by state permits to dispose
of an animal carcass to prevent health and safety concerns. The
commenters explained that disposal of a caribou carcass that can
average 350 to 400 pounds can also skew the weight ratio in the short
term. The commenters suggested setting the plus or minus 15 percent
weight requirement on a calendar-quarterly, rather than weekly, basis.
The commenters pointed to CISWI as an example where tracking and
averaging waste streams is accounted for on a calendar-quarter basis
and requested that the EPA continue this approach. Although the
commenters generally preferred this suggested approach, the commenters
also suggested an alternative of setting the weekly obligation at plus
or minus 30 percent rather than plus or minus 15 percent. The
commenters also suggested the rule should include language that
prevents units that are operated only seasonally from triggering the
deviation and testing upon restarting after a period of being down.
One commenter requested that the previously submitted data for SRI
units in Alaska can and should be used to demonstrate initial
compliance or used as representative testing results for inclusion in
the WebFIRE database.
Response: We are finalizing, as proposed, an option for using a
``representative'' initial compliance demonstration. We disagree with
the commenters that 15 percent variability is insufficient or too
narrowly constrained. The waste profile variability for a VSMWC or IWI
unit with capacity less than or equal to 10 TPD will be based on the
waste profile used in the unit's initial compliance test, or, for
owners and operators who use the SMCD demonstrating initial compliance,
the waste profile used in the chosen representative test. VSMWC and IWI
units with capacities less than or equal to 10 TPD that have highly
variable waste streams will account for that variability in their
initial compliance tests or, if the owner or operator is using the SMCD
demonstrating initial compliance, by choosing a representative test
with a similarly variable waste stream. Based on information currently
available, the EPA anticipates that allowing greater than 15 percent
variability in a waste stream after a unit's initial compliance
demonstration would not provide a sufficient means of demonstrating
compliance on a continuous basis because it would not be representative
of the conditions established during the compliance test. As such, it
would not be possible to provide assurance that the unit continuously
complies with the emission standards. Provided the facility has
conducted or selected a representative performance test, the facility
should be able to demonstrate compliance by assuring that the wastes
combusted do not exceed 15 percent variability.
However, we also acknowledge that some OSWI units may be needed to
dispose of unexpected and unplanned animal carcasses in remote areas.
In such cases, the carcasses would skew the waste profile. To address
this concern, we have revised the final rule to allow the percentage of
waste burned for each waste category to be calculated on a quarterly
average instead of weekly average.
We encourage owners and operators who elect to use the SMCD to
identify their waste variability and waste characterization data as
soon as possible so that representative waste profiles are tested in a
timely manner. Owners and operators of VSMWC or IWI units with
capacities less than or equal to 10 TPD who have not previously
submitted testing data meeting the requirements of the rule in the
development of the final standards will have to submit detailed
information about their units and identify a representative performance
test in the EPA's WebFIRE database. As noted in the preamble to the
proposed rule (85 FR 54190), the representative performance tests must
have been conducted according to the requirements in the OSWI rule,
demonstrate compliance with the OSWI standards, and include the
following information in the report: unit design (including air
pollution control devices), charge rate during the test, type of
operation, combustion temperature during the test, types of waste
burned during the test and the relative amount of each waste to the
total waste burned, type and amount of supplemental fuels used during
the test, and, if the tested unit has an air pollution control device,
the operating parameter data for the control device during the test. We
understand that the units the commenters are referring to have
conducted prior tests. However, if a test in question does not include
all of the information needed to meet the requirements for the
representative performance test in the rule, that test cannot be used
as a representative performance tests for other OSWI units and will not
be made available in WebFIRE. However, the owners or operators of these
units can contact the Administrator under the General Provisions (see
40 CFR 60.8), to determine whether the prior tests conducted on the
unit are acceptable to demonstrate compliance with requirements of the
OSWI rule.
2. Recordkeeping and Reporting
Comment: Commenters stated that the requirements at 40 CFR
60.2956(j) and 40 CFR 60.3051(j) to report the start date, start time,
and duration in hours for each period when all qualified OSWI unit
operators were unavailable for more than 12 hours, but less than 2
weeks, appear to contemplate that an OSWI unit is under continuous
operation. The commenters further stated that is not the case for many
SRI units and stated that some SRI units are operated only seasonally,
while other units may be shut down for days or weeks at a time for
maintenance or other reasons. The commenters added that during those
non-operational times, there may not be a qualified OSWI unit operator
available onsite. To avoid unnecessary reporting, the commenters
request that the reporting requirement be modified to require reporting
for each period ``of operation'' when all qualified OSWI unit operators
were unavailable.
Response: We agree with commenters that the reporting requirements
for qualified OSWI unit operators were intended to apply for periods of
active operation, and it was not our intent to require additional
reporting for non-
[[Page 27932]]
operational periods. We are revising the proposed requirements at 40
CFR 60.2956(j) and 40 CFR 60.3051(j) to clarify that facilities must
report the start date, start time, and duration in hours for each
period of operation when all qualified OSWI unit operators were
unavailable for more than 12 hours but less than 2 weeks.
D. What key comments did we receive on effective and compliance dates?
Comment: Commenters requested EPA clarify the applicability
timeline for existing SRI units at 40 CFR 60.2886(a)(5). The commenters
stated that the language as written appears to treat all existing SRI
units (those constructed prior to August 31, 2020) as new units,
subject to the OSWI NSPS, until a state or Federal plan is implemented
for existing units, in which case these SRI units become existing units
again. Specifically, commenters stated that the effective and
compliance dates of the proposed NSPS and EG are unclear and present a
conflict related to the definition of new units. The commenters stated
that the proposed OSWI rule at 40 CFR 60.2886(a)(3) establishes that
small OSWI units that commenced construction after August 31, 2020 are
new units, but at section 60.2886(a)(5), says that small OSWI units
that ``commenced construction . . . prior to August 31, 2020 . . . are
considered new incineration units.'' The commenters stated that this
conflicting language could be interpreted as treating certain VSMWC and
IWI units with capacities less than or equal to 10 TPD that are
currently in operation as new units because they were constructed prior
to August 31, 2020. The commenters noted that the proposed language is
inconsistent with the proposed transition provision in 40 CFR part 60,
subpart EEEE, which recognizes that under the existing rules, OSWIs
that commenced construction on or before December 9, 2004 are
considered existing OSWIs (see proposed 40 CFR 60.2992(b)). The
commenters indicated that the intent, based on the preamble for the
proposed rule, is that a unit that is currently subject to the new
source OSWI standard or other incinerator standard, continue to comply
with that standard until it becomes subject to an approved state or
Federal plan under 40 CFR part 60, subpart FFFF. However, the commenter
stated that as drafted, this provision would force a unit that is
currently classified as an existing OSWI to comply with the new source
standard during this transition period. The commenter stated that
clarification is required if this is not the intended meaning. Further,
commenters are uncertain what the purpose of this provision is, or how
treating existing units (temporarily or otherwise) as new units is
consistent with section 129 of the CAA. The commenters noted that this
provision seems to put unnecessary risk on existing units of having to
meet the NSPS for small OSWI units including the proposed emission
limitations at table 1 of 40 CFR part 60, subpart EEEE, in the event a
state or Federal implementation plan is not forthcoming. The commenters
urged that only units constructed or modified after August 31, 2020,
can be expected to comply with the limits in 40 CFR part 60, subpart
EEEE, which were developed using the best controlled unit, whereas the
40 CFR part 60, subpart FFFF standards were developed using the top 12
percent criterion. The commenter urged that existing SRI units should
instead be subject only to the requirements of subpart FFFF. The
commenter recommended that the EPA use language in 40 CFR 60.2886 and
40 CFR 60.2992 that does not refer to small OSWI units constructed
prior to 2020 as ``new units'' and adopt a new section 60.2886(c) to
read as follows: ``(c) Any incineration unit that is a small OSWI unit
under 40 CFR 60.2977 and was constructed prior to August 31, 2020, but
was required to comply with standards in subpart EEEE of this part
prior to [the effective date of these rules] must continue to comply
with the applicable standards in subpart EEEE of this part until the
unit becomes subject to the requirements of an approved state plan or
Federal plan that implements subpart FFFF of this part (Emission
Guidelines and Compliance Times for Other Solid Waste Incineration
Units).''
Another commenter stated that the reconstruction date of June 16,
2006, in 40 CFR 60.2977 and 40 CFR 60.3078 is not appropriate for SRI
units which have not previously been subject to the OSWI rule.
Commenters further stated that the definition of reconstruction should
be modified for small OSWI units to the date of the proposed rule,
August 31, 2020.
Response: In response to comment, the EPA is clarifying the
regulatory text with regards to the dates used to define new and
existing sources. A new VSMWC or IWI unit is a unit that commenced
construction after August 31, 2020, or commenced modification or
reconstruction on or after December 29, 2025. Sources that commenced
construction after December 9, 2004, or commenced reconstruction or
modification on or after June 16, 2006, which are currently new sources
under the 2005 OSWI rule, will become existing sources. However, these
sources must continue to comply with the requirements of 40 CFR part
60, subpart EEEE, including the emission limits in table 1 to the
subpart, until the unit is subject to 40 CFR part 60, subpart FFFF
through an approved state plan or Federal plan.
Similarly, SRIs which are currently regulated under the CISWI rules
will become subject to regulation under the OSWI rule in this final
action. If any SRIs meet the definition of a new OSWI unit, then these
new units must demonstrate compliance with the final rule by no later
than December 29, 2025, or by the date the unit first begins operation,
whichever is later. SRIs that do not meet the definition of a new OSWI
unit and are currently regulated under the CISWI rules must continue to
demonstrate compliance with subpart CCCC or DDDD of this part, or
subpart IIIa of part 62, until the unit becomes subject to the
requirements of an approved state plan or federal plan that implements
subpart FFFF of this part (Emission Guidelines and Compliance Times for
Other Solid Waste Incineration Units).
We are also revising the definitions of ``Modification or modified
unit'' and ``reconstruction'' in 40 CFR 60.2977 and 40 CFR 60.3078 to
clarify, in conjunction with the amended 40 CFR 60.2886(a)(4), that
OSWI units that modify or reconstruct 180 days after publication of the
final rule would become subject to 40 CFR part 60, subpart EEEE (New
Source Performance Standards for Other Solid Waste Incineration Units).
V. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected facilities?
The EPA estimates there are approximately 60 OSWI units at 56
facilities that will be affected by the final amendments. These OSWI
units include 2 VSMWC units with capacity greater than 10 TPD at 2
facilities, 29 small VSMWC units with capacities less than or equal to
10 TPD at 25 facilities, and 29 ACI units at 29 facilities. The number
of affected units has decreased from the 2020 Proposed Rule. Notably,
we are finalizing a definition of ``rudimentary combustion device''
that applies to a number of combustion units that were previously
included in the OSWI inventory. We estimate that the OSWI database
developed for the 2020 Proposed Rule includes 9 VSMWC units and 105 IWI
units with capacities less than or equal to 10 TPD that meet one of the
four criteria for rudimentary combustion devices as described in
[[Page 27933]]
section III.D of this preamble. Based on our understanding that these
units lack key features of other OSWI units, we have determined that
the final OSWI standards are not appropriate for rudimentary combustion
devices, and so they are not subject to the final OSWI standards. The
basis of our estimate is provided in the memorandum, Inventory of Other
Solid Waste Incineration (OSWI) Units for Final OSWI Rulemaking, which
is available in the docket (see Docket EPA-HQ-OAR-2003-0156) to this
rulemaking. We have not received any input on, and for various reasons
do not anticipate, the construction of any new sources over the next 3
years. For example, facilities that might use an OSWI unit would be
smaller in nature or institutional (e.g., schools). Use of incinerators
has been consistently decreasing and the cost of compliance with the
NSPS (testing, monitoring, and potentially some control) are likely
considered too high to construct new OSWI units. As a result, such
facilities would likely use other disposal methods, such as shipping to
a CISWI unit or landfilling. While this is generally the case, one
exception is remote units in Alaska at oil and gas companies (e.g., the
SRIs). However, because most of those units were installed relatively
recently and the estimated equipment life of an OSWI unit is 20 years,
the EPA considers it unlikely that they will be replaced in the near
future.
B. What are the air quality impacts?
EPA expects emissions to decrease relative to the primary baseline
in which the 2005 standards have been remanded and no Federal or state
plans exist. There are no estimated emissions reductions based on the
final OSWI standards relative to an alternative baseline that assumes
the 2005 standards are in effect. However, we note that 29 VSMWC units
with capacities less than or equal to 10 TPD, which were previously
regulated as SRIs by CISWI, will now be regulated under OSWI. Because
these units combust municipal-type solid waste, even though they are
located at commercial or industrial facilities, we determined they are
more appropriately regulated under the OSWI rule (see sections III.C
and IV.B of this preamble). Based on the OSWI emissions limits
established for these units (which reflects more recent and accurate
test data for these units), we estimate that removing these units from
CISWI will result in forgone emissions reductions of 11.3 tons per year
(tpy) of total CAA section 129 pollutants, with the majority being PM
(8.56 tpy) and CO (2.6 tpy), as a result of the units now being
regulated under OSWI instead of CISWI. However, we note that many of
these units, including SRIs located in the State of Alaska, were not
currently meeting the CISWI standards and the implementation of the
CISWI standards was prohibited for units in the State of Alaska by
Congress (see section IV.A of this preamble). We anticipate that these
units will be able to meet the standards in this final OSWI rule, which
includes initial and continuous compliance requirements that reduce
compliance costs, and could result in improved compliance relative to a
baseline where these units are subject to CISWI. These emissions
impacts are documented in the memorandum, Costs and Impacts for Other
Solid Waste Incinerators, which is available in the docket (see Docket
EPA-HQ-OAR-2003-0156) for this action.
C. What are the cost and economic impacts?
We anticipate that the final rule will ultimately result in a de
minimis increase in burden for the affected sources. As EPA discusses
in the EIA, we assume the remaining OSWI facilities have not complied
with the 2005 rule and likely would not comply in the future with the
2005 requirements in the absence of this final action. To determine
whether the final requirements would add to or reduce costs from what
OSWI facilities already incur under the existing rule, we compared the
costs for the final rule requirements with the costs incurred in a no-
standards baseline, which reflects remand of the 2005 standards and the
current lack of Federal and state plans. EPA also assessed costs
relative to a baseline that includes costs incurred by affected units
under the current OSWI and CISWI standards.
EPA notes that there is uncertainty regarding the appropriate
baseline for this action given litigation history surrounding the 2005
standards and absence of state and Federal implementation plans. As
discussed in the proposed rule (85 FR 54196), the EPA has limited
information on the number of OSWI units that are currently complying
with the existing OSWI standards, in part because the OSWI Federal plan
has not been finalized, and states have neither developed state plans
nor incorporated Federal plan requirements into state rules.
Additionally, we have limited information from existing facilities that
would definitively demonstrate their compliance. In the absence of a
Federal plan and EPA-approved state plans in most states, EPA's primary
baseline measures the effects of this rule relative to no standards.
For the alternative baseline, EPA assumed (consistent with the
proposed rule) that 10 percent of the population of facilities
operating OSWI units are in compliance with the existing rule.
Therefore, to develop baseline costs for facilities with units
currently subject to the 2005 OSWI rules, we assumed that 10 percent
have complied and continue to comply with testing, monitoring, and
recordkeeping and reporting requirements. We included the initial cost
of testing, parametric monitoring systems, and CO and O<INF>2</INF>
CEMS because the current OSWI rule requires these systems, and
estimated annual compliance costs comprised of annual testing,
parametric monitoring, CO and O<INF>2</INF> CEMS monitoring, and
associated recordkeeping and reporting. We have retained these
assumptions for the alternative baseline in the final rule.
We estimated the alternative baseline total capital investment for
the 10 percent of facilities assumed to be in compliance with the
current OSWI rule to be $6.30 million (2024$). We estimated the
alternative baseline annual costs for the 10 percent of facilities
assumed to be in compliance with the current OSWI rules to be $2.78
million (2024$).\21\
---------------------------------------------------------------------------
\21\ See Table 4 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action, for more information on this cost
calculation.
---------------------------------------------------------------------------
The alternative baseline total capital investment for units
currently subject to the CISWI standards to comply is estimated to be
$29.2 million (2024$), and the annual compliance costs (for monitoring,
recordkeeping, and reporting) are estimated to be $11.0 million
(2024$).\22\
---------------------------------------------------------------------------
\22\ See Table 5 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action, for more information on this cost
calculation.
---------------------------------------------------------------------------
The total alternative baseline costs for compliance for affected
units in the current OSWI and CISWI rules taken together includes $35.5
million (2024$) in total capital investment and total annual costs of
$13.8 million (2024$). Combined, this represents a present value of
$150 million (2024$) and an equivalent annualized value of $13 million
(2024$) at a 3 percent discount rate and a present value of $130
million (2024$) and an equivalent annualized
[[Page 27934]]
value of $13 million (2024$) at a 7 percent discount rate.\23\
---------------------------------------------------------------------------
\23\ See Table 8 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action.
---------------------------------------------------------------------------
The facilities affected by the final rule include two VSMWC units
with capacity greater than 10 TPD and 29 VSMWC units with capacities
less than or equal to 10 TPD at 25 facilities. The final rule does not
substantively change the compliance requirements for the VSMWC with
capacity greater than 10 TPD and ACI facilities. Although costs are
incurred by the 29 VSMWC units with capacities less than or equal to 10
TPD at 25 facilities, under a baseline that assumes the Congressional
rider barring CISWI impementation does not continue, these costs are
offset because these units would no longer be regulated under CISWI.
However, under a baseline that assumes the Congressional rider will
continue in perpetuity, these are new costs to the VSMWCs. The costs
that would be incurred under the final rule for all units are for
initial compliance, continuous compliance, and recordkeeping and
reporting. The final rule revises the applicability of the 2005 rule to
exclude units that meet the definition of a rudimentary combustion
device, as discussed in section III.B of this preamble. The final rule
also allows for owners and operators of VSMWC and IWI units with
capacities less than or equal to 10 TPD (including units that were
previously regulated under CISWI as SRIs) to reduce their initial and
compliance costs using alternatives to initial and annual testing; the
final rule costs for these units reflect the recordkeeping and
reporting required to comply with waste characterization requirements
(as discussed in section III.F.1 of this preamble). Further, the rule
allows for electronic reporting. Benefits to industry of electronic
reporting include reduced costs for creation and transmittal of
reports.
Under the alternative baseline, the total initial cost of
compliance (for recordkeeping and reporting) for the final OSWI
standards is estimated to be $158,000 (2024$) and the annual compliance
costs are estimated to be $798,000 ($393,000 for testing and $405,000
recordkeeping and reporting) (2024$).\24\ Combined, this represents a
present value of $8.9 million (2024$) and an equivalent annualized
value of $720,000 (2024$) at a 3 percent discount rate and a present
value of $7.2 million (2024$) and an equivalent annualized value of
$730,000 (2024$) at a 7 percent discount rate.\25\
---------------------------------------------------------------------------
\24\ See Table 6 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action, for more information on this cost
calculation.
\25\ See Table 8 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action.
---------------------------------------------------------------------------
The total resulting cost impacts of the final rule in comparison to
the alternative baseline is a one-time benefit of $35.3 million (2024$)
in total capital investment and a reduction in total annual costs of
$13.0 million (2024$).\26\ Combined, this represents a present value of
$140 million (2024$) and an equivalent annualized value of $12 million
(2024$) at a 3 percent discount rate and a present value of $120
million (2024$) and an equivalent annualized value of $13 million
(2024$) at a 7 percent discount rate.\27\ The cost savings reflects a
reduction in the number of facilities with applicable requirements
under the OSWI standards, based on the changes to the applicability in
this final rule (see section III.B of this preamble for additional
information), and the regulation of 29 units under the OSWI rule
instead of regulation under the CISWI rule as SRI units.
---------------------------------------------------------------------------
\26\ See Table 7 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action, for more information on this cost
calculation.
\27\ See Table 8 of the Economic Impact Analysis for the Final
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units, which is available in the docket (see Docket EPA-HQ-OAR-2003-
0156) for this action.
---------------------------------------------------------------------------
The cost calculations are detailed in the memorandum, Costs and
Impacts of the Final Other Solid Waste Incineration (OSWI) Units
Rulemaking, which is available in the docket (see Docket EPA-HQ-OAR-
2003-0156) for this action.
The EPA provides an analysis of the compliance costs in present
value and equivalent annual value form in the memorandum, Economic
Impact Analysis for the Final Standards of Performance for New
Stationary Sources and Emission Guidelines for Existing Sources: Other
Solid Waste Incineration Units, which is available in the docket (see
Docket EPA-HQ-OAR-2003-0156) for this action.
Relative to the alternative baseline, the final rule is burden
reducing relative to the 2005 rule because it revises the applicability
of the requirements of the 2005 rule to limit the OSWI standards that
apply to units that meet the definition of a rudimentary combustion
device, and allows for certain owners and operators of VSMWC and IWI
units with capacities less than or equal to 10 TPD to reduce their
initial and compliance costs using alternatives to initial and annual
testing (i.e., the substitute means of compliance demonstration and
alternative waste characterization options that are described in
section III.F.1 of this preamble).
However, as noted previously, there is uncertainty regarding the
appropriate baseline for this action because the 2005 rule has yet to
be fully implemented. As measured against EPA's primary baseline, some
affected OSWI owner/operators may need to perform initial compliance
actions and incur compliance costs on an ongoing basis. The EPA expects
minimal economic impacts under the final rule because of the relatively
small number of affected existing units and because the EPA does not
anticipate affected new sources in the next 3 years. As a result, this
action will incur de minimis regulatory costs. As discussed in the
economic impact analysis associated with the 2005 rule, OSWI owner/
operators may also substitute landfilling services for incineration
rather than perform compliance actions associated with this rule (see
Docket Item No. EPA-HQ-OAR-2003-0156-0101). However, the rate at which
owner/operators of OSWI units substitute the use of landfilling
services rather than incur the costs of OSWI compliance is highly
uncertain. More information and details of this analysis is provided in
the memorandum, Economic Impact Analysis for the Proposed Standards of
Performance for New Stationary Sources and Emission Guidelines for
Existing Sources: Other Solid Waste Incineration Units, which is
available in the docket (see Docket EPA-HQ-OAR-2003-0156) for this
action.
D. What are the benefits?
The final emission limits are unchanged relative to the 2005
standards for units with capacities greater than 10 TPD. The limits for
the subcategories of VSMWC and IWI with capacities less than or equal
to 10 TPD are less stringent than the corresponding limits for VSMWC
and IWI with capacities greater than 10 TPD. However, the VSMWC and IWI
with capacities less than or equal to 10 TPD operate intermittently
with a relatively low stack gas flow rate, and so the actual emissions
of pollutants are relatively low for these units. For
[[Page 27935]]
example, the EPA estimates that a representative VSMWC with capacity
greater than 10 TPD may emit between 0.006 and 0.01 tons of Cd per year
while meeting its limit of 18 [micro]g/dscm, while the highest-emitting
VSMWC with capacity less than or equal to 10 TPD emitting at the level
of the standard (2,000 [micro]g/dscm) would only emit 0.007 tons of Cd
per year.
There are no changes relative to the 2005 standards to the
requirements for the 29 ACI units and the 2 VSMWC with capacities
greater than 10 TPD. Therefore, there are no emission reductions for
them. The 29 units brought over from CISWI and now classified as VSMWC
with capacities less than or equal to 10 TPD are assumed to be able to
meet the emission limits in the final rulemaking for units less than or
equal to 10 TPD capacity based on the test information provided and
input provided by AOGA in their comments. Therefore, there are no
emission reductions for these units.
Because the emission limits for the IWI and VSMWC with capacities
less than or equal to 10 TPD are less stringent than the CISWI limits,
movement of the units will result in forgone emissions reductions,
i.e., emissions reductions that would have occurred had the units
stayed in CISWI and the CISWI emissions limits were implemented for
them. Table 5 shows the forgone emissions reductions. The detailed
emissions reductions calculations are documented in the memorandum
Final Reconsideration Baseline Emissions and Emissions Reductions
Estimates for Existing CISWI Units which is in the CISWI docket.
Table 5--Estimated Forgone Emissions Reductions From Moving 29 Units
From CISWI to OSWI *
------------------------------------------------------------------------
Total forgone
emissions
Pollutant reductions
(tons/year)
------------------------------------------------------------------------
Cadmium (Cd)............................................ 0.018
Carbon monoxide (CO).................................... 2.6
Hydrogen chloride (HCl)................................. 0
Lead (Pb)............................................... 0.116
Mercury (Hg)............................................ 0.00028
Nitrogen oxides (NOX)................................... 0
Particulate matter (PM)................................. 8.56
Sulfur dioxide (SO2).................................... 0
Dioxins/furans (PCDD/PCDF).............................. 0
---------------
Total................................................. 11.3
------------------------------------------------------------------------
* These forgone emissions reductions are relative to a baseline in which
the Congressional rider pertaining to CISWI does not continue.
Although the EPA does not anticipate quantifiable reductions in
emissions as a result of the final rule, this action includes
improvements to the 2005 OSWI rule. Specifically, the final amendments
revise the OSWI standards such that they apply at all times, which we
expect will minimize emissions during periods of SSM and protect public
health and the environment. Additionally, the final 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 EPA has developed CEDRI, which is
located on EPA's Central Data Exchange (CDX), an application used by
EPA programs and various stakeholders to manage environmental data
transmitted to EPA. Reports are stored in the CDX and made available to
report certifiers, preparers, and authorized EPA, regional, state,
local, and Tribal reviewers immediately upon submission. Following a
processing period, copies of the reports are also subsequently sent to
EPA's WebFIRE where the reports are available for public access.
Increasing the availability of facility emissions and reporting data
allows for accountability of emitters to the public, and the
information collected through improved electronic reporting will aid
local, state, and national policymakers as they evaluate and consider
future policy decisions. Benefits to industry of electronic reporting
include the the value of having more standardized data to present to
the public to demonstrate appropriate environmental stewardship, and to
better evaluate emission levels and identify opportunities to reduce
emissions. Additionally, as discussed in section V.B of this preamble,
we expect that certain units that previously were not meeting standards
under CISWI will be able to meet the standards in this final OSWI rule;
which could result in improved compliance and subsequent emissions
reductions. In addition, relative to EPA's primary baseline, the
standards in this final rule represent emissions reductions that the
agency has not quantified or monetized.
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 Orders 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made during Executive Order 12866 review have been documented in the
docket. The EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis, Economic Impact
Analysis for the Final Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Other Solid Waste
Incineration Units is available in the docket. The economic impacts of
this rulemaking are also discussed in section V.D of this preamble.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is considered an Executive Order 14192 deregulatory de
minimis action. Details on the estimated cost impacts are presented in
the memorandum titled, Economic Impact Analysis for the Final Standards
of Performance for New Stationary Sources and Emission Guidelines for
Existing Sourc
[…truncated; see source link]Indexed from Federal Register on June 30, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.