[Federal Register Volume 66, Number 222 (Friday, November 16, 2001)]
[Rules and Regulations]
[Pages 57824-57828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28084]



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Part III





Environmental Protection Agency





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40 CFR Part 60



Standards of Performance for Large Municipal Waste Combustors; Final 
Rule and Proposed Rule

  Federal Register / Vol. 66 , No. 222 / Friday, November 16, 2001 / 
Rules and Regulations  

[[Page 57824]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[AD-FRL-7100-8]
RIN 2060-AJ52


Standards of Performance for Large Municipal Waste Combustors for 
Which Construction Is Commenced After September 20, 1994 or for Which 
Modification or Reconstruction Is Commenced After June 19, 1996 and 
Emission Guidelines and Compliance Times for Large Municipal Waste 
Combustors That Are Constructed on or Before September 20, 1994

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendment.

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SUMMARY: We are amending the standards of performance for large 
municipal waste combustors (MWC) by extending the time during which 
such units will be excused from compliance with the emission limits for 
carbon monoxide due to certain types of malfunctions. Since the 
compliance and performance testing provisions in the emissions 
guidelines for large MWC reference the compliance and performance 
testing provisions in the standards of performance, this amendment to 
the standards has the effect of amending both the standards and the 
guidelines.

DATES: This direct final rule will be effective on January 15, 2002 
without further notice, unless significant adverse comments are 
received by December 17, 2001.
    If significant material adverse comments are received by December 
17, 2001, this direct final rule will be withdrawn and the comments 
addressed in a subsequent final rule based on the proposed rule. If no 
significant material adverse comments are received, no further action 
will be taken on the proposal and this direct final rule will become 
effective on January 15, 2002.

ADDRESSES: By U.S. Postal Service, send comments (in duplicate if 
possible) to: Air and Radiation Docket and Information Center (6102), 
Attention Docket Number A-90-45, U.S. EPA, 1200 Pennsylvania Avenue, 
NW, Washington, DC 20460. In person or by courier, deliver comments (in 
duplicate if possible) to: Air and Radiation Docket and Information 
Center (6102), Attention Docket Number A-90-45, U.S. EPA, 40l M Street, 
SW, Washington, DC 20460. The EPA requests that a separate copy of each 
public comment be sent to the contact person listed below.

FOR FURTHER INFORMATION CONTACT: Mr. Fred Porter, Combustion Group, 
Emission Standards Division (MD-13), U.S. EPA, Research Triangle Park, 
North Carolina 27711, (919) 541-5251, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: Comments. We are publishing this direct 
final rule without prior proposal because we view this as a 
noncontroversial amendment and do not anticipate adverse comments. 
However, in the Proposed Rules section of this Federal Register, we are 
publishing a separate document that will serve as the proposal in the 
event that adverse comments are filed.
    If we receive any significant adverse comments, we will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this direct final rule. Any 
parties interested in commenting must do so at this time.
    Docket. The docket is an organized and complete file of information 
compiled by EPA in developing this direct final rule. The docket is a 
dynamic file because material is added throughout the rulemaking 
process. The docketing system is intended to allow members of the 
public and industries involved to readily identify and locate documents 
so that they can effectively participate in the rulemaking process. 
Along with the proposed and promulgated standards and their preambles, 
the docket contains the record in the case of judicial review. The 
docket number for this rulemaking is A-90-45.
    World Wide Web (WWW). In addition to being available in the docket, 
electronic copies of this action will be posted on the Technology 
Transfer Network's (TTN) policy and guidance information page: http://www.epa.gov/ttn/caaa. The TTN provides information and technology 
exchange in various areas of air pollution control. If more information 
regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.
    Regulated Entities. The regulated categories and entities that 
potentially will be affected by this amendment include the following:

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                 Category                  NAICS codes   SIC codes                Regulated entities
----------------------------------------------------------------------------------------------------------------
Industry, Federal government, and State/        562213         4953  Solid waste combustors or incinerators at
 local/tribal governments.                       92411         9511   waste-to-energy facilities that generate
                                                                      electricity or steam from the combusion of
                                                                      garbage (typically municipal waste); and
                                                                      solid waste combustors or incinerators at
                                                                      facilities that combust garbage (typically
                                                                      municipal waste) and do not recover energy
                                                                      from the waste.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that we are now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility, company, business, organization, etc., is regulated by 
this action, you should carefully examine the applicability criteria in 
Secs. 60.50b and 60.32b of 40 CFR part 60, subparts Cb and Eb. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the action taken by this direct final rule is 
available only on the filing of a petition for review in the U.S. Court 
of Appeals for the District of Columbia Circuit by January 15, 2002. 
Under section 307(b)(2) of the CAA, the requirements that are subject 
to this action may not be challenged later in civil or criminal 
proceedings brought by EPA to enforce these requirements.
    Under section 307(d)(7) of the CAA, only an objection to a rule or 
procedure raised with reasonable specificity during the period for 
public comment or public hearing may be raised during judicial review.

I. Background

    On December 19, 1995, we promulgated final new source performance 
standards (60 FR 65382)

[[Page 57825]]

and emission guidelines (60 FR 65387) for large MWC. The standards and 
guidelines contain a provision requiring large MWC to comply with the 
emission limits in the standards at all times, except during periods of 
startup, shutdown, and malfunction. Periods of startup, shutdown, and 
malfunction are limited to 3 hours per occurrence. If it takes longer 
than 3 hours for startup or shutdown, or if a malfunction continues for 
longer than 3 hours, a large MWC is required to comply with the 
emission limits in the standards during those periods of time which 
exceed 3 hours.
    It often takes longer than 3 hours for a large MWC to shutdown. 
Frequently, it can require 4 to 8 hours and, if complications arise, it 
can take as long as 10 to 15 hours. Except as noted below, that does 
not present a problem with respect to compliance with the emission 
limits since continued operation of the emission control systems 
permits the MWC to maintain compliance.
    Recently, it has been brought to our attention that there are two 
general types of malfunctions which may occur, during which it is not 
possible to comply with the emission limit for carbon monoxide (CO). 
The first is loss of boiler water level control, and the second is loss 
of combustion air control.

Loss of Boiler Water Level Control

    Large MWC boiler tube metal temperatures must be kept below 
800 deg. F or so to prevent damage or burn-out. If water levels in the 
tubes should fall, tube metal temperatures will increase well beyond 
that point. Consequently, a malfunction resulting from a loss of boiler 
water level control, as a result of failure of a boiler tube for 
example, requires shutdown of a large MWC to avoid serious damage to 
the remaining boiler tubes.
    During any shutdown of a large MWC, it is difficult to maintain the 
proper balance between combustion air and waste to ensure complete 
combustion. As a result, CO emissions tend to increase.
    Normally, the tendency for CO emissions to increase is overcome 
through the use of auxiliary fuel burners. The burners ensure complete 
combustion of CO to carbon dioxide (CO2). Thus, even though 
the shutdown of a large MWC may take longer than 3 hours and there is a 
tendency for CO emissions to increase, the use of the auxiliary fuel 
burners overcomes any problem with respect to compliance with the CO 
emission limits.
    During a malfunction and shutdown of a large MWC resulting from a 
loss of boiler water level control, however, full use of auxiliary fuel 
burners is contrary to the immediate objective. The immediate objective 
is to lower combustion temperatures to protect the boiler tubes from 
exposure to high temperatures. In fact, the National Fire Protection 
Association fire code for boilers does not allow auxiliary fuel burners 
to be fired when boiler water levels drop too low for that very reason.
    Although the immediate objective is to lower combustion 
temperatures, combustion temperatures must be lowered in a controlled 
and deliberate manner to prevent damage to the boiler from heat 
stresses. Without the full use of auxiliary fuel burners, however, it 
is not possible for a large MWC to comply with the CO emission limits. 
Consequently, relief from the CO emission limits is appropriate during 
a malfunction resulting from a loss of boiler water level control.

Loss of Combustion Air Control

    As with the loss of boiler water level control, the loss of 
combustion air control also necessitates shutdown of a large MWC. In 
addition, as with loss of boiler water level control, this type of 
malfunction also precludes full use of auxiliary fuel burners during 
shutdown.
    Loss of combustion air control, as a result of loss of a combustion 
air fan, an induced draft fan, or failure of the grate system, can be 
very serious in a large MWC. Lack of sufficient air for complete 
combustion or improper distribution of combustion air (which leads to a 
lack of sufficient air for combustion within an area of the MWC) can 
present a significant risk of explosion. As a result, a malfunction 
resulting from a loss of combustion air control necessitates shutdown 
of a large MWC.
    With a lack of sufficient air for complete combustion, CO emissions 
increase. As indicated above, during a normal shutdown, the tendency 
for CO emissions to increase can be overcome through the use of 
auxiliary fuel burners. However, full use of auxiliary fuel burners can 
exacerbate the fundamental problem, which is not enough air for 
complete combustion. In that situation, adding additional fuel through 
the use of auxiliary fuel burners can make the problem worse and 
increase, not decrease, the risk of explosion.
    As with loss of boiler water level control, the National Fire 
Protection Association fire code does not allow use of auxiliary fuel 
burners in such situations. Indeed, in light of the potential increase 
in the risk of explosion, interlocks are often in place which prevent 
the use of auxiliary fuel burners if control of combustion air is lost.
    Without full use of auxiliary fuel burners, it is not possible to 
comply with the CO emission limits as a large MWC is shutdown. 
Consequently, relief from the CO emission limits is appropriate during 
a malfunction resulting from a loss of combustion air control.
    This amendment, therefore, extends the period of time from 3 hours 
to 15 hours during which a large MWC is exempt from compliance with the 
CO emission limits in the standards for the two types of malfunctions. 
As with all periods of malfunction, the extension in the period of time 
for the two types of malfunctions does not relieve the owner or 
operator from the requirement in Sec. 60.11(d) of the General 
Provisions in 40 CFR part 60 which requires:

    At all times, including periods of startup, shutdown, and 
malfunction, owners and operators shall, to the maximum extent 
practicable, maintain and operate any affected facility including 
associated air pollution control equipment in a manner consistent 
with good air pollution control practice for minimizing emissions.

    As a result, owners and operators of large MWC which may experience 
the two types of malfunctions must continue to take steps during the 
malfunctions to minimize emissions, consistent with the proper and safe 
operation of a large MWC.
    In addition, the extension in the period of time during which a 
large MWC is exempt from compliance with the CO emission limits for the 
two types of malfunctions does not alter the definition of a 
malfunction included in Sec. 60.2 of the General Provisions in 40 CFR 
part 60. A malfunction is defined as:

    * * * any sudden, infrequent, and not reasonably preventable 
failure of air pollution control equipment, process equipment, or a 
process to operate in a normal or usual manner. Failures that are 
caused in part by poor maintenance or careless operation are not 
malfunctions.

As a result, owners and operators of large MWC must continue to develop 
and implement operation and maintenance programs to ensure that any 
failure, such as a loss of boiler water level control or a loss of 
combustion air control, which leads to emissions in excess of the 
emission limits in the standards is solely the result of a sudden and 
unavoidable occurrence and, thus, qualifies as a malfunction.
    The compliance and performance testing provisions included in the 
guidelines (Subpart Cb--Emission Guidelines and Compliance Times for 
Large Municipal Waste Combustors

[[Page 57826]]

That are Constructed On or Before September 20, 1994) reference the 
corresponding compliance and performance testing provisions included in 
the standards (Subpart Eb--Standards of Performance for Large Municipal 
Waste Combustors for Which Construction Is Commenced After September 
20, 1994 or for Which Modification or Reconstruction Is Commenced After 
June 19, 1996). As a result, this action amending the standards has the 
effect of amending both the standards and the guidelines.

II. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and, 
therefore, subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    We have determined that this direct final rule does not qualify as 
a ``significant regulatory action'' under the terms of Executive Order 
12866 and, therefore, is not subject to review by OMB.

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

    This direct final rule is not subject to Executive Order 13211 (66 
FR 28355, May 22, 2001) because it is not a significant regulatory 
action under Executive Order 12866.

C. Executive Order 13132, Federalism

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

D. 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 6, 2000), 
requires us to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This direct final rule does not have tribal implications. 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 direct final rule.

E. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (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 we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we 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 we considered.
    We interpret Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. This direct final rule is 
not subject to Executive Order 13045 because it is based on technology 
performance and not on health or safety risks. Also, this direct final 
rule is not ``economically significant.''

F. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 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, 
generally we must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating a rule for which a written statement is 
needed, section 205 of the UMRA generally requires that we identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objective of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows us to adopt an alternative other

[[Page 57827]]

than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before we establish 
any regulatory requirements that may significantly or uniquely affect 
small governments, including tribal governments, we must develop a 
small government agency plan under section 203 of the UMRA. The plan 
must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of our regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    We have determined that this direct final rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any 1 year. Thus, this direct final rule is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    We have also determined that this direct final rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments.

G. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedures Act or any 
other statute unless the agency certifies that the 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 this direct final rule on 
small entities, small entity is defined as (1) A small business in the 
regulated industry that has a gross annual revenue 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 direct final rule on 
small entities, we have concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
This direct final rule will not impose any requirements on small 
entities because it does not impose any additional regulatory 
requirements.

H. Paperwork Reduction Act

    The Office of Management and Budget approved the information 
collection requirements contained in the standards and guidelines for 
large municipal waste combustors under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., at the time the rules were 
promulgated on December 19, 1995.
    The amendment contained in this direct final rule results in no 
changes to the information collection requirements of the standards or 
guidelines and will have no impact on the information collection 
estimate of project cost and hour burden made and approved by OMB 
during the development of the standards and guidelines. Therefore, the 
information collection requests have not been revised.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for our 
regulations are listed in 40 CFR part 9 and 40 CFR chapter 15.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, Sec. 12(d) (15 U.S.C. 272 
note) directs us to use voluntary consensus standards in our 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, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs us to provide 
Congress, through OMB, explanations when we decide not to use available 
and applicable voluntary consensus standards.
    This direct final rule amendment does not involve technical 
standards. Compliance with the NTTAA was addressed in the preamble of 
the standards of performance (60 FR 65382) and emissions guidelines (60 
FR 65387) promulgated on December 19, 1995.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. We will submit a report containing this 
direct final rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of this direct final rule in the 
Federal Register. A major rule cannot take effect until 60 days after 
it is published in the Federal Register. This direct final rule is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 60

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

    Dated: November 1, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 
60 of the Code of Federal Regulations is amended to read as follows:

PART 60--[AMENDED]

    1. The authority citation for part 60 continues to read as:

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

Subpart Eb--[Amended]

    2. Section 60.58b is amended by revising paragraph (a)(1) 
introductory text and adding paragraph (a)(1)(iii) to read as follows:


Sec. 60.58b  Compliance and performance testing.

    (a) * * *
    (1) Except as provided by Sec. 60.56b, the standards under this 
subpart apply at all times except during periods of startup, shutdown, 
and malfunction. Duration of startup, shutdown, or malfunction periods 
are limited to 3 hours per occurrence, except as provided in paragraph 
(a)(1)(iii) of this section.
* * * * *
    (iii) For the purpose of compliance with the carbon monoxide 
emission limits in Sec. 60.53b(a), if a loss of boiler water level 
control (e.g., boiler waterwall tube failure) or a loss of combustion 
air control (e.g., loss of combustion air fan, induced draft fan, 
combustion grate bar failure) is determined to be a malfunction, the

[[Page 57828]]

duration of the malfunction period is limited to 15 hours per 
occurrence.
* * * * *
[FR Doc. 01-28084 Filed 11-15-01; 8:45 am]
BILLING CODE 6560-50-P