[Federal Register Volume 86, Number 158 (Thursday, August 19, 2021)]
[Proposed Rules]
[Pages 46639-46640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17763]



[[Page 46639]]

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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.

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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 [email protected]. 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, [email protected]. 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, [email protected]. 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.
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    \1\ These 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.
    \2\ The 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).
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    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)

[[Page 46640]]

implementing regulations at 40 CFR part 60, subpart B. It was 
subsequently discovered that 30 TAC Sec.  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\
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    \3\ The Texas OSWI plan submitted by TCEQ does not cover sources 
located in Indian country.
    \4\ The 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.
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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 Sec.  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 Sec.  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 Sec.  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]
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