[Federal Register Volume 72, Number 53 (Tuesday, March 20, 2007)]
[Rules and Regulations]
[Pages 13016-13023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5022]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2005-0117; FRL-8289-6]
RIN 2060-AO18


Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Large Municipal Waste Combustors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of reconsideration of final rule.

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SUMMARY: On May 10, 2006, EPA published a final rule entitled, 
``Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Large Municipal Waste Combustors.'' 
Following that final action, the Administrator received a petition for 
reconsideration. In response to the petition, EPA is announcing its 
reconsideration of three aspects of the rule: operator stand-in 
provisions, data requirements for continuous monitors, and the status 
of operating parameters during the 2 weeks prior to mercury and dioxin/
furan testing.

DATES: Comments. Comments must be received on or before April 19, 2007. 
Because of the need to resolve the issues raised in this action in a 
timely manner, EPA will not grant requests for extensions beyond this 
date. If, however, a public hearing is held, the comment period will 
remain open until May 4, 2007.
    Public Hearing. If anyone contacts EPA by March 27, 2007 requesting 
to speak at a public hearing, EPA will hold a public hearing on April 
4, 2007. If you are interested in attending the public hearing, contact 
Pamela Garrett at (919) 541-7966 to verify that a hearing will be held.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2005-0117, by one of the following methods.
    Web site: http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    E-mail: Send your comments via electronic mail to <a href="/cdn-cgi/l/email-protection#9ffeb2fef1fbb2edb2fbf0fcf4faebdffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="ccade1ada2a8e1bee1a8a3afa7a9b88ca9bcade2aba3ba">[email protected]</span></a>, Attention Docket ID No. EPA-HQ-OAR-2005-0117.
    Facsimile: Fax your comments to (202) 566-1741, Attention Docket ID 
No. EPA-HQ-OAR-2005-0117.
    Mail: Send your comments to: EPA Docket Center (EPA/DC), EPA, 
Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention Docket ID No. EPA-HQ-OAR-2005-0117.
    Hand Delivery: Deliver your comments to: EPA Docket Center (EPA/
DC), EPA West Building, Room B108, 1301 Constitution Ave., NW., 
Washington, DC, 20460, Attention Docket ID No. EPA-HQ-OAR-2005-0117. 
Such deliveries are accepted only during the Docket's normal hours of 
operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays), and special arrangements should be made for deliveries 
of boxed information.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0117. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Public Hearing. If a public hearing is requested, it will be held 
at EPA's Campus located at 109 T.W. Alexander

[[Page 13017]]

Drive in Research Triangle Park, NC, or an alternate site nearby. If no 
one contacts Pamela Garrett by March 27, 2007 requesting to speak at a 
public hearing, we will not hold a hearing. The public hearing will 
provide interested parties the opportunity to present data, views, or 
arguments concerning the reconsideration. The record for this action 
will remain open for 30 days after the date of the hearing to 
accommodate submittal of rebuttal and supplementary information.
    Docket. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy. Publicly available docket 
materials are available either electronically at http://www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, 
EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This 
Docket facility and the Public Reading Room are open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The Docket 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Walt Stevenson, Energy Strategies 
Group, Sector Policies and Programs Division (D243-01), U.S. EPA, 
Research Triangle Park, North Carolina 27711, (919) 541-5264, e-mail 
<a href="/cdn-cgi/l/email-protection#483b3c2d3e2d263b2726663f29243c082d3829662f273e"><span class="__cf_email__" data-cfemail="8af9feeffcefe4f9e5e4a4fdebe6fecaeffaeba4ede5fc">[email protected]</span></a>. For questions about the public hearing, contact 
Pamela Garrett (919) 541-7966.

SUPPLEMENTARY INFORMATION:
    Organization of This Document. The following outline is provided to 
aid in locating information in this preamble.

I. General Information
    A. Does this notice of reconsideration apply to me?
    B. How do I obtain a copy of this document and other related 
information?
II. Background Information
III. Actions We Are Taking
IV. Discussion of Issues for Reconsideration
    A. Operator Stand-in Provisions
    B. Data Requirements for Continuous Monitors
    C. Status of Operating Parameters During the 2 Weeks Prior to 
Mercury and Dioxin/Furan Testing
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act

I. General Information

A. Does this notice of reconsideration apply to me?

1. Regulated Entities
    Categories and entities potentially affected by this 
reconsideration notice are municipal waste combustion units with a 
design combustion capacity of greater than 250 tons per day (tpd). The 
New Source Performance Standards (NSPS) and emission guidelines for 
municipal waste combustors affect the following categories of sources:

------------------------------------------------------------------------
                                      NAICS     Examples of potentially
             Category                  code        regulated entities
------------------------------------------------------------------------
Industry, Federal government, and     562213,  Solid waste combustors or
 State/local/tribal governments.        92411   incinerators at waste-to-
                                                energy facilities that
                                                generate electricity or
                                                steam from the
                                                combustion of garbage
                                                (typically municipal
                                                solid waste); and solid
                                                waste combustors or
                                                incinerators at
                                                facilities that combust
                                                garbage (typically
                                                municipal solid waste)
                                                and do not recover
                                                energy from the waste
                                                combustion.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that are regulated by the final 
large municipal waste combustors (MWC) rules. You should consult the 
applicability provisions of the NSPS and emission guidelines to 
determine if you are subject to the rule.

B. How do I obtain a copy of this document and other related 
information?

    Docket. The docket number for this action and the final large MWC 
NSPS (40 CFR part 60, subpart Eb) and emission guidelines (40 CFR part 
60, subpart Cb) is Docket ID No. EPA-HQ-OAR-2005-0117.
    Worldwide Web (WWW). In addition to being available in the docket, 
electronic copies of the final rule and this notice of reconsideration 
are available on the WWW through the Technology Transfer Network Web 
site (TTN Web). Following signature, EPA posted a copy of this notice 
on the TTN's policy and guidance page for newly proposed or promulgated 
rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and 
technology exchange in various areas of air pollution control.

II. Background Information

    Section 129 of the Clean Air Act (CAA), entitled ``Solid Waste 
Combustion,'' requires EPA to develop and adopt NSPS for new units and 
emission guidelines for existing units for solid waste incineration 
units pursuant to CAA sections 111 and 129. Section 129(a)(5) of the 
CAA requires EPA to conduct a 5-year review of the NSPS and emissions 
guidelines and, in accordance with sections 129 and 111, revise the 
NSPS and emission guidelines. EPA undertook and completed that review. 
On December 19, 2005 (70 FR 75348), EPA proposed amendments to the NSPS 
and emission guidelines to reflect the revisions EPA believes are 
appropriate. EPA carefully considered comments received on the proposal 
and promulgated the amendments on May 10, 2006 (71 FR 27323).
    Following the promulgation of the final amendments to the large MWC 
rule, EPA received a petition for reconsideration from Earthjustice. 
The purpose of today's notice is to initiate a process for responding 
to issues raised in the petition.

III. Actions We Are Taking

    We are granting reconsideration of, and requesting comment on, 
three of the four issues raised in the petition for reconsideration: 
(1) The provisions to allow provisionally-certified control room 
operators to perform the duties of a certified chief facility operator 
or certified shift operator; (2) the data availability requirements for 
continuous emissions monitoring systems (CEMS); and (3) the status of 
operating parameters during the 2 weeks prior to mercury and dioxin/
furan testing. EPA is not proposing any rule changes as a result of 
this reconsideration.

[[Page 13018]]

    We are seeking public comment only on the three issues specifically 
identified in this notice. We will not respond to any comments 
addressing other aspects of the large MWC rule or any related 
rulemakings.
    Our final decision on reconsideration of the issue raised by the 
petitioner for which we are not granting reconsideration will be issued 
no later than the date by which we take final action on the issues 
discussed in this action.

IV. Discussion of Issues for Reconsideration

    This section of the preamble contains EPA's basis for our proposed 
response to the issues identified in the petition for reconsideration.

A. Operator Stand-in Provisions

    Earthjustice, in their petition of July 7, 2006, states ``EPA must 
reconsider its decision to allow untrained employees to perform the 
duties of a certified chief facility operator or certified shift 
operator.'' Below, EPA presents its rationale for the training and 
certification requirements contained in the final rule for large MWC 
units. This presentation includes a review of (1) requirements under 
CAA section 129(d); (2) requirements under section 12(d) of the 
National Technology Transfer and Advancement Act (NTTAA); (3) training 
and certification requirements adopted for large MWC units in 1995 
under 40 CFR part 60, subpart Eb; (4) implementation guidance issued in 
1998; (5) revisions proposed for large MWC units in December 2005; (6) 
public comments received on the proposed operator certification 
requirements; and (7) operator ``stand-in'' requirements contained in 
the final May 2006 rule.
    Under CAA section 129(d), EPA ``shall develop and promote a model 
State program for the training and certification of solid waste 
incineration unit operators * * *. It shall be unlawful to operate any 
unit in the category unless each person with control over processes 
affecting emissions from such unit has satisfactorily completed a 
training program meeting the requirements established by the 
Administrator under this section.'' Additionally, under section 12(d) 
of the NTTAA, EPA is directed to incorporate readily available 
voluntary consensus standards into its regulations unless to do so 
would be inconsistent with applicable law or otherwise impractical.
    In the 1995 rule for MWC units, EPA addressed both the training 
requirements and certification requirements. The rule addresses the 
training requirements in two ways. First, to promote and assist State 
air pollution control offices, EPA developed and distributed an MWC 
training program. The 1995 rule required all control room operators, 
shift supervisors, and chief facility operators to complete the 
training. Second, the 1995 rule required MWC owners and operators to 
develop a site-specific operating manual that included: (1) A summary 
of the 1995 MWC rule; (2) description of the basic combustion theory 
applicable to the MWC; (3) procedures for receiving, handling, and 
feeding municipal solid waste to the MWC; (4) procedures for start-up, 
shutdown, and malfunction at the MWC; (5) procedures for maintaining 
proper combustion air supply to the MWC; (6) procedures for operating 
within the requirements of the 1995 MWC rule; (7) procedures for 
responding to periodic upset or off-specification conditions; (8) 
procedures for minimizing particulate matter carryover; (9) procedures 
for ash handling; (10) procedures for monitoring emissions from the 
MWC; and (11) a review of reporting and recordkeeping requirements. The 
1995 rule required the manual to be used to train a wide range of 
individuals at the MWC. Not only did the 1995 rule require training of 
the control room operators, shift supervisors, and chief facility 
operator, but it also required training of the crane/load handlers, ash 
handlers, maintenance personnel, as well as any other person at the MWC 
with responsibilities affecting the operation of MWC. The 1995 MWC rule 
required initial training of these individuals and an annual review of 
the manual. The 1995 rule required that a copy of the manual be kept in 
a location readily accessible by these personnel. These requirements 
ensure that individuals working at an MWC are well trained and know how 
the plant is to be operated.
    Relative to CAA certification requirements, EPA considered 
development of a certification program. However, as a first step, 
consistent with NTTAA requirements, EPA conducted a review to see if 
such standards or techniques were already developed and available. EPA 
identified the availability of the national MWC operator certification 
program that had been developed and implemented by the American Society 
of Mechanical Engineers (ASME). The ASME program satisfied EPA's needs. 
The program was titled ``Standards for the Qualification and 
Certification of Resource Recovery Facility Operators (QRO)-1989.'' The 
ASME/QRO certification is MWC plant-specific and ASME certifies only 
the supervisory positions of chief facility operator and shift 
supervisor. As the first step toward certification, the individual must 
obtain an ASME provisional certification. Next, the individual must 
``document 6 months of satisfactory employment at the level of chief 
facility operator or shift supervisor in that resource recovery 
facility.'' After completing the 6-month employment, the individual may 
apply for MWC site-specific certification testing. A control room 
operator can also obtain ASME provisional certification, but cannot 
take the ASME test for full certification until the control room 
operator elevates to the level of chief facility operator or shift 
supervisor.
    The 1995 MWC rule requires that during all periods of MWC 
operations, one of the following people must be on site: A fully-
certified chief facility operator, a provisionally-certified chief 
facility operator scheduled to take the ASME/QRO full certification 
test, a fully-certified shift supervisor, or a provisionally-certified 
shift supervisor scheduled to take the ASME/QRO full certification. If 
these individuals must leave the MWC plant during their operating 
shift, a provisionally-certified control room operator may stand in. 
Shortly after adopting the MWC rule in 1995, questions arose about the 
control room operator ``stand-in'' provisions. The basic question was: 
could a provisionally-certified control room operator stand in for 
longer than a partial operating shift? For example, if the chief 
facility operator was out of the State at a meeting, and the shift 
supervisor became sick and was out for a number of days, what should be 
done? Should the MWC plant stop operations until a certified individual 
returns, while hundreds of tons of municipal solid waste were being 
received daily? Should the waste be diverted to some other location?
    To address these issues, an enforcement guidance memorandum was 
issued by EPA on May 14, 1998 (``John Seitz memo''). The guidance 
memorandum addresses what to do for periods up to 12 hours, up to 2 
weeks, and greater than 2 weeks. Such periods could occur during 
vacations, training, administrative activities, or sickness. If both 
the certified chief facility operator and shift supervisor would be 
away from the MWC for more than 2 weeks, the guidance memorandum 
requires the MWC owner or operator to notify EPA of what actions were 
being taken to address the absence of certified personnel and to submit 
supplemental

[[Page 13019]]

monthly reports until the certified personnel returned or were 
replaced. Such extended period could occur if a certified individual 
was transferred to another MWC, the certified individual discontinued 
employment at the MWC, or the certified individual was dismissed. The 
1998 guidance memo has been used for the past 9 years for 
implementation of the operator stand-in provisions.
    On December 19, 2005, EPA proposed revisions to the 1995 MWC rule. 
One of the proposed revisions was to incorporate the provisions of the 
1998 guidance memorandum into the MWC rule. These same provisions had 
already been incorporated into the small MWC rules (subparts AAAA and 
BBBB, 40 CFR part 60) on December 6, 2000. EPA received a number of 
comments on the 2005 proposal, including one comment on the proposed 
control room operator stand-in provisions. The commenter supported the 
proposal, but noted that the stand-in/certification provisions should 
be expanded to address a recent issue being faced by the MWC industry: 
The turnover of certified chief facility operators and certified shift 
supervisors has increased due to the growing employment opportunities 
in the power generation and industrial boiler industries. The commenter 
noted that it was not uncommon to lose one or more certified 
individuals from an MWC plant in the same year. The commenter also 
noted that when an employee (the control room operator in most cases) 
was promoted to the shift supervisor position (or chief facility 
operator position), the employee would have to act in that capacity for 
6 months before the employee could apply for ASME/QRO testing. Since 
this activity would take more than 2 weeks, under the 1998 guidance 
memo the owner or operator of the MWC would be required to notify EPA 
of this activity and provide monthly reports.
    EPA carefully considered the comment, noting that the request 
limited the focus of the exemption to provisionally-certified control 
room operators. EPA considered CAA requirements, NTTAA requirements, 
training requirements in the rule, ASME/QRO requirements, and the 1998 
guidance memo. Under the May 10, 2006 rule, all control room operators 
will have already completed the EPA training course, will have 
completed initial training and annual review of a site-specific MWC 
operating manual, and under this exemption will already have achieved 
provisional certification by the ASME/QRO program. In its evaluation, 
EPA concluded this limited exemption did not undermine the MWC 
regulation, did not allow untrained individuals to operate the MWC, and 
would, in fact, improve the efficiency of the regulation by reducing 
unnecessary reporting and paperwork requirements. The final rule 
adopted on May 10, 2006, added text at 40 CFR 60.54b(c)(3) that says: 
``A provisionally certified operator who is newly promoted or recently 
transferred to a shift supervisor position or a chief facility operator 
position at the municipal waste combustion unit may perform the duties 
of the certified chief facility operator or certified shift supervisor 
without notice to, or approval by, the Administrator for up to 6 months 
before taking the ASME QRO certification exam.''
    For the reasons discussed above, EPA continues to believe that this 
provision is appropriate and, therefore, is not proposing to change it. 
The EPA is, however, soliciting comment on the appropriateness of the 
provision from interested parties and will make a final decision on the 
issue after fully considering any such comments.

B. Data Requirements for Continuous Monitors

    The second issue addressed by this notice of reconsideration is the 
data availability requirements for CEMS. Earthjustice in their petition 
states ``EPA must reconsider its CEMS data availability requirements.'' 
Earthjustice suggests the final CEMS data requirements are inadequate. 
In particular, Earthjustice took exception to the elimination of a 
``requirement that operators obtain CEMS data for 75 percent of the 
operating hours per day before the data is counted toward the CEMS data 
availability requirements.'' In this section, EPA presents its 
rationale for the CEMS data availability requirements contained in the 
final rule. This includes a review of (1) The progression of CEMS data 
requirements from 1979 thru 1995, (2) proposed 2005 CEMS data 
requirements for large MWC units, (3) public comments on proposed 
requirements, and (4) final 2006 data requirements.
    In development of NSPS under CAA section 111, EPA has constantly 
pushed for increased CEMS application and improvements. Relative to 
boiler standards, the first NSPS to use CEMS as a continuous compliance 
test method was the 1979 NSPS for electric utility boilers (40 CFR part 
60, subpart Da). This was followed with identical CEMS requirements 
under the subpart Db, 40 CFR part 60, NSPS (1987) for industrial 
boilers and the subpart Dc, 40 CFR part 60, NSPS (1990) for commercial 
boilers. This was followed with revised, but similar, CEMS requirements 
under the subpart Ea, 40 CFR part 60, NSPS (1991) and the subpart Eb, 
40 CFR part 60, NSPS (1995) for large MWC units. CEMS technology has 
continued to improve, and EPA has continued to increase requirements.
    CEMS data availability requirements, and the format of those 
requirements, have been refined and revised over time. The CEMS data 
requirements under the 1979 subpart Da NSPS for electric utility 
boilers includes a minimum CEMS data generation rate of 75 percent of 
the operating hours per day for 22 days in each 30 day period. This 
minimum data collection requirement equates to 55 percent CEMS data 
availability (0.75 x (22/30) = 0.55). This same requirement was 
incorporated into the 1987 subpart Db for industrial boilers and the 
1990 subpart Dc for commercial boilers. EPA reformatted these 
requirements slightly, and in the 1991 subpart Ea NSPS for MWC units, 
included a minimum data requirement of 75 percent of the operating 
hours per day for 75 percent of the operating days per month. This 
minimum data collection requirement equates to 56 percent data 
availability (0.75 x 0.75 = 0.56).
    Under section 129 of the CAA amendments of 1990, EPA was required 
to upgrade the subpart Ea requirements to be based on the use of 
maximum available control technology (MACT). An upgraded subpart Eb was 
adopted in 1995. The upgrade to subpart Eb included increased CEMS data 
requirements. Under the 1995 subpart Eb, the minimum data availability 
requirement was 75 percent of the operating hours per day for 90 
percent of the operating days per calendar quarter. This minimum data 
requirement equates to a minimum of 68 percent data availability (0.75 
x 0.90 = 0.68).
    Acting in accordance with the requirements of CAA section 
129(a)(5), EPA initiated a review of the 1995 subpart Eb rule for large 
MWC units, which included a review of CEMS data availability 
requirements. As described in the December 19, 2005 proposal, EPA 
obtained calendar year 2003 CEMS data from a large MWC plant. The data 
included CEMS information on six parameters (sulfur dioxide, oxygen, 
nitrogen oxides, carbon monoxide, hydrogen chloride, opacity, and flue 
gas temperature at the inlet to the particulate matter control device), 
for each of the three MWC units at the plant, and for all four quarters 
of operation in 2003. Overall, this data base contained 72 calendar 
quarters of CEMS data (6 x 3 x 4 = 72). For all quarters and all 
parameters, the CEMS data availability level was more than 99

[[Page 13020]]

percent. This information had been formatted differently than EPA's 
1995 rule. The data statistics presented were in hours of valid CEMS 
data generated per quarter divided by the hours of MWC operation per 
quarter. It did not consider a 75 percent daily data requirement. 
Because of the differences of data formats, EPA made conservative 
assumptions and proposed to increase the minimum data requirement to 75 
percent of the operating hours per day for 95 percent of the operating 
days per calendar quarter. This proposed requirement equates to a 
minimum data requirement of 72 percent CEMS data availability (0.75 x 
0.95 = 0.72).
    On December 19, 2005, EPA proposed these more stringent 
requirements for subpart Eb. EPA received a number of comments on the 
proposal including comments on the CEMS data availability requirements. 
The most relevant comment regarding CEMS data availability was that the 
CEMS data availability analysis used by EPA had not been adjusted to 
include the proposed 75 percent daily data requirement. The commenter 
suggested this adjustment would have reduced the 99 percent data 
availability level shown by the analysis. Rather than adjust the 
analysis, EPA elected to revise the format of the CEMS data 
availability requirements to match the analysis. This would also 
eliminate the need for the conservative assumptions made in adjusting 
from one format to the other. CEMS data availability would be based 
simply on actual hours of MWC operation.
    The percent of operation format is becoming common for reporting 
CEMS data availability generally. Under EPA's acid rain control 
program, more than 1,000 electric utility boilers report information on 
CEMS data generation to EPA. The hourly data submitted is compiled by 
EPA as the ratio (percent) of hours of CEMS data generation relative to 
hours of boiler operation per calendar quarter. The 75 percent daily 
data requirement is not used. EPA recently upgraded the subpart Da NSPS 
for new electric utility boilers and in that action revised the CEMS 
data requirements to be based on the percent of boiler operating hours. 
The 75 percent daily data requirement was dropped from subpart Da. The 
percent of operation format is a superior metric for CEMS performance. 
It does not credit data as being available for a full 24-hour day 
unless it is available for a full 24 hours. Data is credited on an 
hour-by-hour basis. Under the earlier 75 percent daily data format, a 
day was counted as a full day if more than 75 percent (18 hours) of 
data were generated.
    In the May 10, 2006, large MWC rule, EPA revised the CEMS data 
availability requirements to be based on the hours of MWC operation. 
Also, in consideration of public comments on the potential need for 
back-up CEMS, EPA revised the data requirement to 90 percent on a 
calendar quarter basis and 95 percent on a calendar year basis. The 
final requirement equates to a minimum data requirement of 90 percent 
CEMS data availability on a calendar quarter basis and 95 percent on an 
annual basis.
    The final rule adopted on May 10, 2006, contains revised text at 40 
CFR 60.58b(e)(7) to read as follows: ``At a minimum, valid continuous 
monitoring system hourly averages shall be obtained* * * for 90 percent 
of the operating hours per calendar quarter and for 95 percent of the 
operating hours per calendar year that the affected facility is 
combusting municipal waste.''
    In summary, EPA has continued to upgrade CEMS data requirements. 
The final requirements are superior to the proposed requirements and 
earlier requirements. As shown in Table 1 of this preamble, on a 
calendar quarter basis, the proposed requirements would have required a 
minimum of 1,539 hours of CEMS data generation (71 percent) per 
calendar quarter as opposed to the final requirements with a minimum of 
1,944 hours of CEMS data generation (90 percent) per calendar quarter.

 Table 1.--Minimum CEMS Data Requirements Under 40 CFR Part 60, Subpart
                                   Eba
------------------------------------------------------------------------
                                                       2005       2006
  Data required (per calendar quarter)   1995 Rule   Proposal    Final
------------------------------------------------------------------------
Hours..................................  1,458 \b\  1,539 \c\  1,944 \d\
Percent................................         68         71         90
------------------------------------------------------------------------
\(a)\ Table based on the assumption that an MWC operated for 24 hours
  per day for a 90 day calendar quarter: (24 x 90 = 2,160 hours of MWC
  operation).
\(b)\ CEMS data for 75 percent of the operating hours per day for 90
  percent of the days per quarter: (0.75 x 24)(0.90 x 90) = 1,458 hours
  of data.
\(c)\ CEMS data for 75 percent of the operating hours per day for 95
  percent of the days per quarter: (0.75 x 24)(0.95 x 90) = 1,539 hours
  of data.
\(d)\ CEMS data for 90 percent of the MWC operating hours per quarter:
  (0.90)(90 x 24) = 1,944 hours of data.

    For the reasons discussed above, EPA believes that the data 
availability requirements contained in the final rule, including the 
elimination of the requirement to obtain data for 75 percent of the 
operating hours per day, is the preferred approach. The EPA is, 
therefore, not proposing to change the requirement. The EPA is, 
however, soliciting comment on the issue from interested parties and 
will make a final decision on the issue after fully considering any 
such comments.

C. Status of Operating Parameters During the 2 Weeks Prior to Mercury 
and Dioxin/Furan Testing

    The third issue addressed by this notice of reconsideration is the 
operating parameter testing for activated carbon injection (ACI) rate. 
Earthjustice in their petition says ``EPA must reconsider its operating 
parameter requirements * * *. EPA's rule now allows MWC to avoid 
meeting mass carbon feed rate limits for dioxin/furan testing, as well 
as mercury testing, and increases to more than 4 weeks per year the 
total amount of time that MWC can avoid meeting mass carbon feed rate 
limits.'' Below, EPA presents its rationale for the mass carbon feed 
rate alternatives in the final rule. This presentation includes a 
review of the following: (1) The requirements in the 1994 proposed and 
1995 final large MWC rules, (2) requirements in the 2005 proposed 
amendments to the large MWC rule, (3) public comments received on 
proposed amendments, and (4) requirements in the final 2006 large MWC 
rule.
    First, it is useful to briefly review MWC control systems. MWC 
units use either spray dryer/fabric filter (SD/FF) scrubbing systems or 
spray dryer/electrostatic precipitator (SD/ESP) scrubbing systems as 
the basic

[[Page 13021]]

component of their MACT control system. Other technologies are used to 
supplement this primary control system. ACI is one technology used to 
supplement dioxin/furan control and mercury control. Of the 167 large 
MWC units, 120 MWC units use ACI for supplemental control. The 
supplemental use of ACI reduces mercury emissions by about 90 percent 
from the level achieved by the scrubbing system alone and reduces 
dioxin/furan emissions by about 75 percent from the level achieved by 
the scrubbing system alone.
    In 1995, dioxin/furan emissions at MWC units were stack tested. 
CEMS to measure dioxin/furan were unavailable. To supplement the annual 
dioxin/furan test, various operating parameters are measured 
continuously. The rule requires the continuous monitoring of the 
following site-specific operating parameters: (1) MWC load level (steam 
generation rate), (2) flue gas temperatures at the inlet to the 
particulate matter control device, and (3) ACI injection rate (mass 
carbon feed rate). The allowable rate for these parameters is 
established during the dioxin/furan stack test and is site-specific for 
each MWC unit. Relative to mercury testing, the 1995 rule requires 
measurement of ACI mass flow rate during both the dioxin/furan stack 
test and the mercury stack test, with the more restrictive of the two 
flow rates applied. For all three operating parameters, the site-
specific limits are applied on a continuous basis until the next annual 
stack test when new parameters are established.
    The site-specific parameters discussed above adequately addressed 
operating parameters for the initial MACT compliance test (December 
2000). Owners and operators of the MWC units would have had adequate 
time following control device retrofits for pre-testing and adjusting 
the control system before the initial MACT compliance test. However, 
there remained the question of what should be done for subsequent 
compliance tests.
    The 1995 MWC rule answered that question by providing the following 
at 40 CFR 60.53b(b): ``During the annual dioxin/furan performance test 
and 2 weeks preceding* * * the municipal waste combustor load limit may 
be waived in accordance with permission granted by the Administrator * 
* * for the purpose of evaluating system performance, testing new 
technology or control technologies, diagnostic testing, or related 
activities for the purpose of improving facility performance* * *.'' An 
identical 2-week waiver is provided in 40 CFR 60.53b(c) for 
establishing the site-specific operating parameter for flue gas 
temperature at the inlet to the particulate matter control device 
during dioxin/furan testing. Optimizing ACI rate was not addressed.
    In the 2005 proposal, 40 CFR 60.53b(b) and (c) were proposed to be 
revised to allow waiver of municipal waste combustor load limit and 
flue gas temperature at the inlet to the particulate matter control 
device during either dioxin/furan testing or mercury testing. 
Previously, optimization testing for these two parameters was allowed 
during only dioxin/furan testing. Additionally, companion text was 
added in 40 CFR 60.58b(m) to allow optimization testing for ACI 
injection rate before mercury testing. The 2005 proposal also required 
the testing waiver be a written document. The proposal did not propose 
to add optimization testing for ACI injection rate before dioxin/furan 
testing.
    One comment received on the 2005 proposal indicated EPA should 
revise the rule to make it clear that all three operating parameters 
are waived for up to 2 weeks prior to testing for either dioxin/furan 
or mercury. This would assure consistency, since all three parameters 
affect both dioxin/furan emissions and mercury emissions. The text in 
the final 2006 rule allows a 2-week waiver for optimization of the 
three operating parameters, whether testing for dioxin/furan or 
mercury.
    The optimization tests are expected to be relatively short. In most 
cases, the optimization testing for dioxin/furan and mercury will be 
conducted during the same test period. This is an economic reality: the 
duration of the test program significantly affects the cost of testing. 
To illustrate this, EPA randomly selected and compiled dioxin/furan and 
mercury testing dates that occurred at 27 MWC units during their 
initial compliance tests. EPA noted the date the testing was started 
and the date it was completed, and calculated the duration from start 
to finish (including time that existed between dioxin/furan and mercury 
tests). The most common test duration for dioxin/furan and mercury 
testing for the 27 MWC units was 2 days. The average test duration was 
3.6 days. All test programs took less than 8 days. Clearly, 
optimization testing for dioxin/furan and mercury is expected to be 
coordinated and completed in 2 weeks or less. The only exception 
envisioned is for an exceptionally well operated MWC plant that under 
40 CFR 60.58(g)(5)(iii) is not required to conduct dioxin/furan tests 
on all units each year. In such cases, it is possible that only mercury 
emissions will be optimized and tested. This should occur in limited 
circumstances because the operating parameters optimized for mercury 
control would be of little utility if the previous parameters 
determined from dioxin/furan testing were more stringent and were 
controlling. In any case, a test period of up to 2 weeks is judged to 
be adequate for dioxin/furan and mercury optimization testing, with the 
period allowed by the Administrator determined on a case-by-case basis.
    In summary, the procedure for establishing operating parameters has 
been refined for consistency over time. The application for a waiver 
prior to testing must now be made in writing to the Administrator. The 
testing duration schedule, as determined by the Administrator, is 
expected to be 2 weeks or less.
    For the reasons discussed above, EPA believes that the provision 
for optimization testing for ACI injection before dioxin/furan testing 
contained in the final rule is appropriate and, therefore, is not 
proposing to change it. The EPA is, however, soliciting comment on the 
issue from interested parties and will make a final decision on the 
issue after fully considering any such comments.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This notice of reconsideration does not impose any new information 
collection burden. The Office of Management and Budget previously 
approved the information collection requirements contained in the NSPS 
and emission guidelines for large MWC units under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., at the time the NSPS 
and emission guidelines were promulgated on December 19, 1995 and 
subsequent recertifications. The information collection request has 
been assigned OMB Control Number 2060-0210 (EPA ICR No. 1506.10).
    This action results in no changes to the information collection 
requirements of the NSPS or emission guidelines and will have no impact 
on the information collection estimate of project cost and hour burden 
made and approved by

[[Page 13022]]

OMB. Therefore, the information collection requests have not been 
revised.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of the large MWC rules on 
small entities, small entity is defined as follows: (1) A small 
business in the regulated industry that has gross annual revenues of 
less than $6 million; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; or (3) a small organization that 
is any not-for-profit enterprise that is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of this notice of 
reconsideration on small entities, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities. This notice of reconsideration will not impose any 
requirements on any entities because it does not impose any additional 
regulatory requirements. We continue to be interested in the potential 
impacts of this action on small entities and welcome comments on issues 
related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if EPA 
publishes with the final rule an explanation why that alternative was 
not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including Tribal 
governments, EPA must have developed, under section 203 of the UMRA, a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA's regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this notice of reconsideration contains no 
Federal mandates (under the regulatory provisions of Title II of the 
UMRA) for State, local, or tribal governments or the private sector. 
This notice of reconsideration imposes no enforceable duty on any 
State, local or tribal governments or the private sector. Thus, this 
notice of reconsideration is not subject to the requirements of 
sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications.'' ``Policies that have 
Federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among various levels of 
government.''
    This notice of reconsideration does not have federalism 
implications. It will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
This notice of reconsideration will not impose direct compliance costs 
on State or local governments, and will not preempt State law. Thus, 
Executive Order 13132 does not apply to this notice of reconsideration.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This notice of 
reconsideration does not have tribal implications, as specified in 
Executive Order 13175. It will not have substantial direct effects on 
Tribal governments, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this notice of reconsideration.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a

[[Page 13023]]

disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern health or safety risks, such that the 
analysis required under section 5-501 of the Executive Order has the 
potential to influence the regulation. This notice of reconsideration 
is not subject to Executive Order 13045 because the large MWC final 
rule is based on technology performance. Also, this notice of 
reconsideration is not ``economically significant.''

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

    This notice of reconsideration is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) 
because it is not a significant regulatory action under Executive Order 
12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA 
to use voluntary consensus standards in its regulatory activities 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, 
business practices) that are developed or adopted by one or more 
voluntary consensus bodies. The NTTAA directs EPA to provide Congress, 
through OMB, with explanations when EPA does not use available and 
applicable voluntary consensus standards.
    EPA is not proposing to make any changes to the regulatory 
requirements in the large MWC final rule in this action, including 
requirements that involve technical standards. As a result, the NTTAA 
discussion set forth in the May 10, 2006, final rule remains valid. The 
requirements of NTTAA, therefore, do not apply to this action.

List of Subjects in 40 CFR Part 60

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

    Dated: March 14, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-5022 Filed 3-19-07; 8:45 am]
BILLING CODE 6560-50-P


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