Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 46639 

1These ACI subject to the OSWI EG at 40 CFR 

part 60, subpart FFFF are those ACI that do not fit 

the definition of an ‘‘OSWI’’ as they burn certain 

types of wastes. See 40 CFR 60.2994(b) and 40 CFR 

60.3078. 

2The court ordered deadline to promulgate the 

final OSWI review is May 31, 2021. Sierra Club v. 

Wheeler, 330 F. Supp. 3d 407. (D.D.C. 2018). 

3The Texas OSWI plan submitted by TCEQ does 

not cover sources located in Indian country. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[EPA–R06–OAR–2021–0517; FRL–8798–01– 

R6] 

Approval and Promulgation of State 

Air Quality Plans for Designated 

Facilities and Pollutants; Texas; 

Control of Emissions From Existing 

Other Solid Waste Incineration Units 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to the Federal Clean 

Air Act (CAA or the Act), the 

Environmental Protection Agency (EPA) 

is proposing to approve the CAA section 

111(d)/129 state plan submitted by the 

State of Texas for sources subject to the 

Other Solid Waste Incineration Units 

(OSWI) Emission Guidelines (EG). The 

Texas OSWI plan was submitted to 

fulfill state obligations under CAA 

section 111(d)/129 to implement and 

enforce the requirements under the 

OSWI EG. The EPA is proposing to 

approve the state plan in part and 

amend the agency regulations in 

accordance with the requirements of the 

CAA. 

DATES: Written comments must be 

received on or before September 20, 

2021. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2021–0517, at https://

www.regulations.gov or via email to 

ruan-lei.karolina@epa.gov. Follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact Karolina Ruan Lei, (214) 665– 

7346, ruan-lei.karolina@epa.gov. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov. While all 

documents in the docket are listed in 

the index, some information may not be 

publicly available due to docket file size 

restrictions or content (e.g., CBI). 

FOR FURTHER INFORMATION CONTACT: 

Karolina Ruan Lei, EPA Region 6 Office, 

Air and Radiation Division—State 

Planning and Implementation Branch, 

(214) 665–7346, ruan-lei.karolina@

epa.gov. Out of an abundance of caution 

for members of the public and our staff, 

the EPA Region 6 office will be closed 

to the public to reduce the risk of 

transmitting COVID–19. We encourage 

the public to submit comments via 

https://www.regulations.gov, as there 

will be a delay in processing mail and 

no courier or hand deliveries will be 

accepted. Please call or email the 

contact listed above if you need 

alternative access to material indexed 

but not provided in the docket. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the EPA. 

I. Background 

Sections 111(d) and 129 of the CAA 

require states to submit plans to control 

certain pollutants (designated 

pollutants) at existing solid waste 

combustor facilities (designated 

facilities) whenever standards of 

performance have been established 

under CAA section 111(b) for new 

sources of the same type, and the EPA 

has established emission guidelines for 

such existing sources. CAA section 129 

directs the EPA to establish standards of 

performance for new sources (NSPS) 

and emissions guidelines (EG) for 

existing sources for each category of 

solid waste incinerator specified in CAA 

section 129. Under CAA section 129, 

NSPS and EG must contain numerical 

emissions limitations for particulate 

matter, opacity (as appropriate), sulfur 

dioxide, hydrogen chloride, oxides of 

nitrogen, carbon monoxide, lead, 

cadmium, mercury, and dioxins and 

dibenzofurans. While NSPS are directly 

applicable to new sources (affected 

facilities), EG for existing sources 

(designated facilities) are intended for 

states to use to develop a state plan to 

submit to the EPA. Once approved by 

the EPA, the state plan becomes 

federally enforceable. If a state does not 

submit an approvable state plan to the 

EPA, the EPA is responsible for 

developing, implementing, and 

enforcing a federal plan. 

The regulations at 40 CFR part 60, 

subpart B, contain general provisions 

applicable to the adoption and submittal 

of state plans for controlling designated 

pollutants from designated facilities. 

Additionally, 40 CFR part 62, subpart A, 

provides the procedural framework by 

which the EPA will approve or 

disapprove such plans submitted by a 

state. When designated facilities are 

located in a state, the state must then 

develop and submit a plan for the 

control of the designated pollutant(s). 

EPA promulgated the OSWI NSPS 

and EG on December 16, 2005, codified 

at 40 CFR part 60, subparts EEEE and 

FFFF, respectively (70 FR 74870, as 

amended at 71 FR 67806, November 24, 

2006). Thus, states were required to 

submit plans for incinerators subject to 

the OSWI EG pursuant to sections 

111(d) and 129 of the Act and 40 CFR 

part 60, subpart B. OSWI means very 

small municipal waste combustion unit 

or an institutional waste incineration 

unit (IWI) as defined under 40 CFR 

60.3078. The designated facilities to 

which the current OSWI EG apply are 

OSWI and certain air curtain 

incinerators (ACI) 1 that commenced 

construction on or before December 9, 

2004, and were not modified or 

reconstructed on or after June 16, 2006, 

as specified in 40 CFR 60.2991 and 

60.2992, with limited exceptions as 

provided under 40 CFR 60.2993. The 

EPA proposed revisions to the OSWI EG 

and NSPS on August 31, 2020 (85 FR 

54178). When the EPA finalizes the 

revisions to the OSWI EG,2 each state 

(and air quality control jurisdiction) will 

need to submit a negative declaration or 

plan, as applicable, for those sources 

subject to the requirements of the final 

revised OSWI EG. 

In order to fulfill obligations under 

CAA sections 111(d) and 129, the Texas 

Commission on Environmental Quality 

(TCEQ) submitted a state plan for the 

control of emissions from sources 

subject to the OSWI EG for the State of 

Texas on May 18, 2009.3 The Texas 

OSWI plan implements and enforces the 

applicable provisions under the OSWI 

EG at 40 CFR part 60, subpart FFFF, and 

additionally meets the relevant 

requirements of the CAA section 111(d) 


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46640 Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Proposed Rules 

4The May 18, 2009, Texas submittal also includes 

the CAA section 111(d)/129 plans addressing 

requirements for incinerators subject to the Small 

Municipal Waste Combustion units (SMWC) 

Emission Guidelines at 40 CFR part 60, subpart 

BBBB, and the Commercial and Industrial Solid 

Waste Incineration units (CISWI) Emission 

Guidelines at 40 CFR part 60, subpart DDDD. We 

are only addressing the Texas OSWI plan portion 

in this rulemaking. 

implementing regulations at 40 CFR part 

60, subpart B. It was subsequently 

discovered that 30 TAC § 113.2313(3)(B) 

is inconsistent with the delegation of 

authority provisions of Title 40 CFR 

60.2990(6) and 60.3020(c)(2). As 

discussed in more detail in the next 

section, on June 11, 2021, TCEQ 

submitted a commitment letter to the 

EPA to address a discrepancy in the 

Texas OSWI plan. A copy of the Texas 

submittal and the commitment letter is 

included in the docket for this 

rulemaking (Docket No. EPA–R06– 

OAR–2021–0517).4

II. Evaluation 

The EPA has evaluated the Texas 

OSWI plan to determine whether the 

plan meets applicable requirements 

from the OSWI EG at 40 CFR part 60, 

subpart FFFF, and the CAA section 

111(d) implementing regulations at 40 

CFR part 60, subpart B. The EPA’s 

detailed rationale and discussion on the 

Texas OSWI plan can be found in the 

Technical Support Document (TSD), 

located in the docket for this 

rulemaking. 

Section 60.2983 of the OSWI EG 

addresses what must be included in 

state plan submittals. These 

requirements include: 

(1) Inventory of affected incineration 

units, including those that have ceased 

operation but have not been dismantled. 

(2) Inventory of emissions from 

affected incineration units in the State. 

(3) Compliance schedules for each 

affected incineration unit. 

(4) For each affected incineration unit, 

emission limitations, operator training 

and qualification requirements, a waste 

management plan, and operating 

parameter requirements that are at least 

as protective as the emission guidelines 

contained in this subpart. 

(5) Stack testing, recordkeeping, and 

reporting requirements. 

(6) Transcript of the public hearing on 

the State plan. 

(7) Provision for State progress reports 

to EPA. 

(8) Identification of enforceable State 

mechanisms that the State selected for 

implementing the emission guidelines 

of this subpart. 

(9) Demonstration of the state’s legal 

authority to carry out the sections 

111(d) and 129 in the state plan. 

Section 60.2983 of the OSWI EG also 

requires the state plan to demonstrate 

that it is at least as protective as the 

OSWI EG if it deviates from the format 

and content of the EG in 40 CFR part 60, 

subpart FFFF. The state plan must also 

follow the requirements of 40 CFR part 

60, subpart B. The TSD goes into detail 

as to how the Texas OSWI plan meets 

these requirements. In evaluating the 

state’s OSWI plan, the EPA considered 

the commitment letter submitted by the 

State. The letter addressed the 

component of the state plan that is 

inconsistent with the withheld authority 

provisions of the OSWI EG, specifically, 

the review of qualified operator 

accessibility status reports under 30 

TAC § 113.2313(3)(B), which 

corresponds to 40 CFR 60.3020(c)(2). In 

order to address the discrepancy, the 

TCEQ committed to forward any 

notification, report, or request it 

receives pursuant to 30 TAC 

§ 113.2313(3) to the EPA without taking 

any other action, including approving or 

disapproving any request. 

III. Proposed Action 

The EPA is proposing to partially 

approve the Texas OSWI plan submitted 

by TCEQ and amend 40 CFR part 62 in 

accordance with the requirements under 

sections 111(d) and 129 of the CAA. The 

EPA is proposing to find that the Texas 

OSWI plan, with the exception of 30 

TAC § 113.2313(3), is at least as 

protective as the Federal requirements 

provided under the OSWI EG, codified 

at 40 CFR part 60, subpart FFFF. Once 

approved by the EPA, the Texas OSWI 

plan will become federally enforceable. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a CAA section 

111(d)/129 submission that complies 

with the provisions of the Act and 

applicable Federal regulations. 42 

U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR 

part 60, subparts B and FFFF; and 40 

CFR part 62, subpart A. Thus, in 

reviewing CAA section 111(d)/129 state 

plan submissions, EPA’s role is to 

approve state choices, provided that 

they meet the criteria of the Act and 

implementing regulations. Accordingly, 

this action merely proposes to approve 

state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

This rule also does not have Tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian Tribes, 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 by Executive Order 13175 

(65 FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 62 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Waste treatment and 

disposal. 

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

Dated: August 13, 2021. 

David Gray, 

Acting Regional Administrator, Region 6. 

[FR Doc. 2021–17763 Filed 8–18–21; 8:45 am] 

BILLING CODE 6560–50–P 


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