Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units, 74870-74924 [05-23716]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 241 (Friday, December 16, 2005)]
[Rules and Regulations]
[Pages 74870-74924]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23716]



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Part II





Environmental Protection Agency





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40 CFR Part 60



Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Other Solid Waste Incineration Units; 
Final Rule

Federal Register / Vol. 70, No. 241 / Friday, December 16, 2005 / 
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2003-0156; FRL-8005-5]
RIN 2060-AG31


Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Other Solid Waste Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating new source performance standards (NSPS) 
and emission guidelines for new and existing ``other'' solid waste 
incineration units (OSWI). The final rules for OSWI units fulfill the 
requirements of sections 111 and 129 of the Clean Air Act (CAA), which 
require EPA to promulgate NSPS and emission guidelines for solid waste 
incineration units. The final rules, which address only the 
incineration of nonhazardous solid wastes, will protect public health 
by reducing exposure to air pollution.

DATES: Amendments to Sec.  60.17 are effective February 14, 2006. The 
standards for new sources in subpart EEEE of 40 CFR part 60 (sections 
60.2880 through 60.2977) are effective June 16, 2006. The incorporation 
by reference of certain publications listed in the NSPS is approved by 
the Director of the Federal Register as of June 16, 2006. The emission 
guidelines for existing sources in subpart FFFF of 40 CFR part 60 
(sections 60.2980 through 60.3078) are effective February 14, 2006. The 
incorporation by reference of certain publications listed in the 
emission guidelines is approved by the Director of the Federal Register 
as of February 14, 2006.

ADDRESSES: Docket. EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2003-0156. All documents in the docket are 
listed on the https://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, i.e., 
confidential business information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at EPA Docket Center (EPA/DC), EPA West Building, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading 
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The 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: Ms. Mary Johnson, Combustion Group, 
Emission Standards Division (C439-01), U.S. EPA, Research Triangle 
Park, North Carolina 27711; telephone number: (919) 541-5025; e-mail 
address: johnson.mary@epa.gov.

SUPPLEMENTARY INFORMATION:
    Regulated Entities. Categories and entities potentially regulated 
by the final rules are very small municipal waste combustion (VSMWC) 
units and institutional waste incineration (IWI) units. The final OSWI 
emission guidelines and NSPS potentially affect the following 
categories of sources:

----------------------------------------------------------------------------------------------------------------
                                                                              Examples of potentially regulated
                  Category                     NAICS code       SIC code                   entities
----------------------------------------------------------------------------------------------------------------
Any State, local, or Tribal government        562213, 92411      4953, 9511  Solid waste combustion units
 using a VSMWC unit as defined in the                                         burning municipal waste collected
 regulations.                                                                 from the general public and from
                                                                              residential, commercial,
                                                                              institutional, and industrial
                                                                              sources.
Institutions using an IWI unit as defined        922, 6111,     9223, 8211,  Correctional institutions, primary
 in the regulations.                              623, 7121            7999   and secondary schools, camps and
                                                                              national parks.
Any Federal government agency using an OSWI             928            9711  Department of Defense (labs,
 unit as defined in the regulations.                                          military bases, munitions
                                                                              facilities).
Any college or university using an OSWI          6113, 6112      8221, 8222  Universities, colleges and
 unit as defined in the regulations.                                          community colleges.
Any church or convent using an OSWI unit as            8131            8661  Churches and convents.
 defined in the regulations.
Any civic or religious organization using              8134            8641  Civic association and fraternal
 an OSWI unit as defined in the regulations.                                  associations.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the 
final rules. To determine whether your facility is regulated by the 
final rules, you should examine the applicability criteria in the NSPS 
for new sources located at 40 CFR 60.2885 through 60.2888 of subpart 
EEEE, and in the emission guidelines for existing sources located at 40 
CFR 60.2991 through 60.2994 of subpart FFFF. If you have any questions 
regarding the applicability of the final rules to a particular entity, 
contact the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.
    Docket. The docket number for the final NSPS (40 CFR part 60, 
subpart EEEE) and emission guidelines (40 CFR part 60, subpart FFFF) is 
Docket ID No. EPA-HQ-OAR-2003-0156.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of the final rules is available on the WWW through 
the Technology Transfer Network Website (TTN Web). Following signature, 
EPA will post a copy of the final rules on the TTN's policy and 
guidance page for newly proposed or promulgated rules at https://www.epa.gov/ttn/oarpg. The TTN provides information and technology 
exchange in various areas of air pollution control.
    Judicial Review. Under CAA section 307(b)(1), judicial review of 
the final rules is available only by filing a petition for review in 
the U.S. Court of Appeals for the District of Columbia by February 14, 
2006. Under CAA section 307(d)(7)(B), only an objection to the final 
rules that was raised with reasonable specificity during the period for 
public comment can be raised during judicial review. Moreover, under 
CAA section 307(b)(2), the requirements established by today's final 
action may not be challenged separately in any civil or criminal 
proceedings brought by EPA to enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for the EPA to convene a proceeding for

[[Page 74871]]

reconsideration, ``[i]f the person raising an objection can demonstrate 
to the EPA that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule.'' Any person seeking to make such 
a demonstration to the EPA should submit a Petition for Reconsideration 
to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios 
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a 
copy to both the person(s) listed in the preceding FOR FURTHER 
INFORMATION CONTACT section, and the Director of the Air and Radiation 
Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 
Pennsylvania Ave., NW., Washington, DC 20004.
    Organization of This Document. The following outline is provided to 
aid in locating information in this preamble.

I. Background
II. Summary of the Final Rules
    A. Do the final rules apply to me?
    B. What emission limits must I meet?
    C. What operating limits must I meet?
    D. What are the other requirements?
    E. What are the requirements for air curtain incinerators?
    F. What title V permit requirements must I meet?
III. What are the changes to the rules since proposal?
IV. Significant Issues and Changes-Public Comments
    A. Applicability
    B. Definitions
    C. MACT Floors and Emission Limits
    D. Title V Operating Permits
    E. Testing
    F. Impacts
V. Impacts of the Final Rules
    A. What are the impacts for new units?
    B. What are the impacts for existing units?
VI. 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
    J. Congressional Review Act

I. Background

    Section 129 of the CAA, entitled ``Solid Waste Combustion,'' 
requires EPA to develop and adopt NSPS and emission guidelines for 
solid waste incineration units pursuant to CAA section 111. Section 
111(b) of the CAA requires EPA to establish NSPS for new sources, and 
CAA section 111(d) requires EPA to establish procedures for States to 
submit plans for implementing emission guidelines for existing sources. 
Under CAA section 111, NSPS and emission guidelines must be developed 
for new and existing stationary sources that cause or contribute 
significantly to air pollution that may reasonably be anticipated to 
endanger public health or welfare.
    Congress specifically added section 129 to the CAA to address 
concerns about emissions from solid waste combustion units. Section 
129(a)(1) of the CAA identifies five categories of solid waste 
incineration units:
    (1) Units with a capacity of greater than 250 tons per day (tpd) 
combusting municipal waste;
    (2) Units with a capacity equal to or less than 250 tpd combusting 
municipal waste;
    (3) Units combusting hospital, medical and infectious waste;
    (4) Units combusting commercial or industrial waste; and
    (5) Unspecified ``other categories of solid waste incineration 
units.''
    Section 129(g)(1) of the CAA identifies several types of units that 
are not solid waste incineration units, including units required to 
have a permit under section 3005 of the Solid Waste Disposal Act 
(SWDA); materials recovery facilities; certain qualifying small power 
production facilities or qualifying cogeneration facilities which burn 
homogeneous waste; and certain air curtain incinerators that meet 
opacity limitations established by EPA.
    For each category of incineration unit identified under CAA section 
129, EPA must establish numerical emission limits for at least nine 
specified pollutants (particulate matter (PM), sulfur dioxide 
(SO2), hydrogen chloride (HC1), nitrogen oxides 
(NOX), carbon monoxide (CO), lead (Pb), cadmium (Cd), 
mercury (Hg), and dioxins and dibenzofurans), and for opacity as 
appropriate. Section 129 of the CAA provides EPA with the discretion to 
establish emission limitations for other pollutants as well. (See CAA 
section 129(a)(4).)
    Under CAA section 129, the NSPS and emission guidelines adopted for 
solid waste combustion units must reflect the maximum achievable 
control technology (MACT). Accordingly, EPA=s standards under CAA 
section 129 must ``reflect the maximum degree of reduction in emissions 
of [the listed] air pollutants * * * that the Administrator, taking 
into consideration the cost of achieving such emissions reductions, and 
any non-air quality health and environmental impacts and energy 
requirements, determines is achievable for new or existing units in 
each category * * *.'' (See CAA section 129(a)(2).) However, the 
standards for new units must not be less stringent than the emissions 
control that is achieved in practice by the best controlled similar 
unit, and the standards for existing sources must not be less stringent 
than the average emissions limitations achieved by the best performing 
12 percent of units in the category.
    EPA previously developed regulations for each of the listed 
categories of solid waste incineration unit except for the undefined 
``other categories of solid waste incineration units.'' Four notices 
have been published regarding OSWI regulatory development (58 FR 31358, 
June 2, 1993; 58 FR 58498, November 2, 1993; 65 FR 67367, November 9, 
2000; 69 FR 71472, December 9, 2004). In the November 9, 2000 notice, 
EPA revised the OSWI regulatory schedule to include a November 2005 
date for promulgation of final regulations. This deadline was 
subsequently incorporated into a consent decree, requiring that EPA 
propose regulations for the OSWI source category by November 30, 2004, 
and promulgate final rules by November 30, 2005. On December 9, 2004, 
EPA proposed NSPS and emission guidelines for OSWI units (69 FR 71472). 
EPA received 26 public comment letters from a variety of sources, 
consisting mainly of government agencies, environmental organizations, 
incinerator manufacturers, and various incinerator owners/operators. By 
today's notice EPA promulgates final regulations for ``other'' (or 
OSWI) units.

II. Summary of the Final Rules

A. Do the final rules apply to me?

    The final OSWI rules apply to you if you own or operate either of 
the following:
    (1) An incineration unit with a capacity less than 35 tpd burning 
municipal solid waste (MSW) (as defined in CAA section 129, 40 CFR 
60.2977 of subpart EEEE, and 40 CFR 60.3078 of subpart FFFF); or
    (2) An incineration unit located at an institutional facility 
burning institutional waste (as defined in 40 CFR 60.2977 of subpart 
EEEE and 40 CFR 60.3078 of subpart FFFF) generated at that facility.
    Requirements for air curtain incineration units that would 
otherwise be VSMWC or IWI units, but for the fact

[[Page 74872]]

that they burn certain materials, are discussed later in this preamble. 
If your incineration unit is currently meeting emission limitations and 
other requirements of another CAA section 129 regulation (i.e., small 
or large municipal waste combustion (MWC) units; hospital, medical, 
infectious waste incineration (HMIWI) units; or commercial and 
industrial solid waste incineration (CISWI) units), the final OSWI 
rules do not apply to you. Likewise, if an institutional combustion 
unit is covered under the CAA section 112 national emission standards 
for hazardous air pollutants (NESHAP) for industrial, commercial, and 
institutional boilers and process heaters (boilers NESHAP), it is not 
subject to the final OSWI rules. Certain types of combustion units 
listed in 40 CFR 60.2887 of subpart EEEE and 40 CFR 60.2993 of subpart 
FFFF are also excluded from the final OSWI rules.
    If you began construction of your incineration unit on or before 
December 9, 2004, it is considered an existing unit and is subject to 
the emission guidelines (40 CFR part 60, subpart FFFF). If you began 
construction of your incineration unit after December 9, 2004, it is 
considered a new unit and is subject to the NSPS (40 CFR part 60, 
subpart EEEE).
    If you began reconstruction or modification of your incineration 
unit prior to June 16, 2006, it is considered an existing unit and is 
subject to the emission guidelines. Likewise, if you begin 
reconstruction or modification of your incineration unit on or after 
June 16, 2006, it is considered a new unit and is subject to the NSPS.

B. What emission limits must I meet?

    As the owner or operator of a new OSWI unit, you must meet the 
emission limits specified in table 1 of this preamble. You must conduct 
an initial performance test to show compliance within 60 days after a 
new OSWI unit reaches the charge rate at which it will operate, but no 
later than 180 days after the unit's initial startup.
    As the owner or operator of an existing OSWI unit, you must meet 
the emission limits specified in table 1 of this preamble within 3 
years after the effective date of State plan approval or by a 
compliance date to be established when EPA promulgates a Federal plan, 
but no later than December 16, 2010. The December 16, 2010 deadline is 
set by the statute. (See CAA section 129(f)). Thus, if EPA approves a 
State plan in 2009, December 16, 2010 will still be the deadline for 
complying. EPA plans to promulgate a Federal plan that will require 
compliance by December 16, 2010 in those areas that fail to submit an 
approvable State plan.

        Table 1.--Emission Limits for New and Existing OSWI Units
------------------------------------------------------------------------
                                                        And determine
                               You must meet these    compliance using
    For these pollutants       emission limits \a\   these  methods \b\
                                                             \c\
------------------------------------------------------------------------
Cd..........................  18 micrograms per     EPA Method 29.
                               dry standard cubic
                               meter ([mu]g/dscm).
CO..........................  40 parts per million  EPA Methods 10, 10A
                               dry volume (ppmdv).   or 10B.
Dioxins/Furans (total mass    33 nanograms per dry  EPA Method 23.
 basis).                       standard cubic
                               meter (ng/dscm).
HCl.........................  15 ppmdv............  EPA Method 26A.
Pb..........................  226 [mu]g/dscm......  EPA Method 29.
Hg..........................  74 [mu]g/dscm.......  EPA Method 29.
Opacity.....................  10%.................  EPA Method 9.
NOX.........................  103 ppmdv...........  EPA Methods 7, 7A,
                                                     7C, 7D, or 7E. \d\
PM..........................  0.013 grains per dry  EPA Method 5 or 29.
                               standard cubic foot
                               (gr/dscf).
SO2.........................  3.1 ppmdv...........  EPA Method 6 or 6C.
                                                     \e\
------------------------------------------------------------------------
\a\ All emission limits (except opacity) are measured at 7 percent
  oxygen, dry basis at standard conditions.
\b\ These methods are in 40 CFR part 60, appendix A.
\c\ Compliance with the CO emission limit is determined on a 12-hour
  rolling average basis using continuous emission monitoring system
  data. Compliance for the other emission limits is determined by stack
  testing.
\d\ ASME PTC 19-10-1981-Part 10 is an acceptable alternative to only
  Methods 7 and 7C.
\e\ ASME PTC 19-10-1981-Part 10 is an acceptable alternative to only
  Method 6.

C. What operating limits must I meet?

    If you use a wet scrubber to comply with the emission limits, you 
must establish the maximum and minimum site-specific operating limits 
indicated in table 2 of this preamble. You must then operate the OSWI 
unit so that the charge rate does not exceed the established maximum 
charge rate. You must operate the wet scrubber so that the pressure 
drop or amperage, scrubber liquor flow rate, and scrubber liquor pH do 
not fall below the minimum established operating limits.

  Table 2.--Operating Limits for New and Existing OSWI Units Using Wet
                                Scrubbers
------------------------------------------------------------------------
                                                          And monitor
                                  You must establish  continuously using
 For these operating parameters     these operating    these  recording
                                        limits               times
------------------------------------------------------------------------
Charge rate.....................  Maximum charge      Every hour.
                                   rate.
Pressure drop across the wet      Minimum pressure    Every 15 minutes.
 scrubber, or amperage to the      drop or amperage.
 wet scrubber.
Scrubber liquor flow rate.......  Minimum flow rate.  Every 15 minutes.
Scrubber liquor pH..............  Minimum pH........  Every 15 minutes.
------------------------------------------------------------------------
Note: Compliance is determined on a 3-hour rolling average basis, except
  charge rate for batch incinerators, which is determined on a 24-hour
  basis.


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    If you use an air pollution control device other than a wet 
scrubber to comply with the emission limits, you must petition the EPA 
for approval of other site-specific operating limits to be established 
during the initial performance test and continuously monitored 
thereafter. The information you must include in your petition is 
described in 40 CFR 60.2917 of subpart EEEE and 40 CFR 60.3024 of 
subpart FFFF.

D. What are the other requirements?

    As the owner or operator of a new or existing OSWI unit, you must 
meet the following additional requirements.
    Siting Analysis (new units only):
     Submit a report that evaluates site-specific air pollution 
control alternatives that minimize potential risks to public health or 
the environment, considering costs, energy impacts, non-air 
environmental impacts, or any other factors related to the 
practicability of the alternatives.
    Waste Management Plan:
     Submit a written plan that identifies both the feasibility 
and the methods used to reduce or separate certain components of solid 
waste from the waste stream to reduce or eliminate toxic emissions from 
incinerated waste.
    Operator Training and Qualification Requirements:
     Qualify operators or their supervisors (at least one per 
facility) by ensuring that they complete an operator training course 
and annual review or refresher course.
    Testing Requirements:
     Conduct initial performance tests for Cd, CO, dioxins/
furans, HCl, Pb, Hg, NOX, opacity, PM, and SO2 
and establish operating limits (i.e., maximum or minimum values for 
operating parameters).
     Conduct annual performance tests for all nine pollutants 
and opacity. (An owner or operator may conduct less frequent testing if 
the facility demonstrates that it is in compliance with the emission 
limits for three consecutive performance tests.)
    Monitoring Requirements:
     Continuously monitor CO emissions.
     If using a wet scrubber to comply with the emission 
limits, continuously monitor the following operating parameters: charge 
rate, pressure drop across the wet scrubber (or amperage), and scrubber 
liquid flow rate and pH.
     If using something other than a wet scrubber to comply 
with the emission limits, monitor other operating parameters, as 
approved by the EPA.
    Recordkeeping and Reporting Requirements:
     Maintain for 5 years records of the initial performance 
tests and all subsequent performance tests, operating parameters, any 
maintenance, the siting analysis (for new units only), and operator 
training and qualification. Each record must be kept on site for at 
least 2 years. The records may be kept off site for the remaining 3 
years.
     Submit the results of the initial performance tests and 
all subsequent performance tests and values for the operating 
parameters.
     Submit annual compliance reports and semiannual reports of 
any deviations from the emission limits, operating limits, or other 
requirements.
     Apply for and obtain a title V operating permit.

E. What are the requirements for air curtain incinerators?

    The final OSWI rules establish opacity limitations for air curtain 
incineration units that would otherwise meet the definitions of IWI or 
VSMWC units, but burn only:
     100 percent wood wastes;
     100 percent clean lumber;
     100 percent yard waste; or
     100 percent mixture of only wood waste, clean lumber, and/
or yard waste.
    The opacity limit is 10 percent. However, 35 percent opacity is 
allowed during startup periods that are within the first 30 minutes of 
operation. Air curtain incinerators burning only these materials must 
meet the opacity limits and certain monitoring, recordkeeping, and 
reporting requirements, and must apply for and obtain a title V 
operating permit.
    Air curtain incinerators burning other institutional waste or 
municipal waste must meet the requirements of the final OSWI rules 
including all emission limits in table 1 of this preamble and the 
associated testing, permitting, monitoring, recordkeeping, and 
reporting requirements.

F. What title V permit requirements must I meet?

    All new and existing OSWI units and air curtain incinerators 
regulated by the final OSWI rules must apply for and obtain a title V 
operating permit. These title V operating permits assure compliance 
with all applicable Federal requirements for regulated incineration 
units, including all applicable CAA section 129 requirements. (See 40 
CFR 70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.)
    The permit application deadline for a CAA section 129 source 
applying for a title V operating permit depends on when the source 
first becomes subject to the relevant title V permits program. If a 
regulated incineration unit is a new unit and is not subject to an 
earlier permit application deadline, a complete title V permit 
application must be submitted on or before the relevant date below:
    (1) For a unit that commenced operation as a new source on or 
before December 16, 2005, a complete title V permit application must be 
submitted not later than December 18, 2006; or
    (2) For a unit that does not commence operation as a new source 
until after December 16, 2005, a complete title V permit application 
must be submitted not later than 12 months after the date the unit 
commences operation as a new source. (See CAA section 503(c) and 40 CFR 
70.5(a)(1)(i) and 71.5(a)(1)(i).)
    If your incineration unit is an existing unit and is not subject to 
an earlier permit application deadline, a complete title V permit 
application must be submitted by the earlier of the following dates:
    (1) Twelve months after the effective date of any applicable EPA-
approved CAA section 111(d)/129 plan (i.e., an approved State or Tribal 
plan that implements the OSWI emission guidelines);
    (2) Twelve months after the effective date of any applicable 
Federal plan; or
    (3) December 16, 2008.
    For any existing incineration unit not subject to an earlier permit 
application deadline, the application deadline of 36 months after the 
promulgation of 40 CFR part 60, subpart FFFF, applies regardless of 
whether or when any applicable Federal plan is effective, or whether or 
when any applicable CAA section 111(d)/129 plan is approved by EPA and 
becomes effective. (See CAA sections 129(e), 503(c), 503(d), and 502(a) 
and 40 CFR 70.5(a)(1)(i) and 71.5(a)(1)(i).)
    If your incineration unit is subject to title V as a result of some 
triggering requirement(s) other than those mentioned above (for 
example, a unit may be a major source or part of a major source), then 
you may be required to apply for a title V operating permit for that 
unit prior to the deadlines specified above. If more than one 
requirement triggers a source's obligation to apply for a title V 
operating permit, the 12-month timeframe for filing a title V permit 
application is triggered by the requirement which first causes the 
source to be subject to title V. (See CAA section 503(c) and 40 CFR 
70.3(a) and (b), 70.5(a)(1)(i), 71.3(a) and (b), and 71.5(a)(1)(i).)
    For additional background information on the interface between CAA 
section 129 and title V, including EPA's interpretation of CAA section 
129(e), information on updating existing

[[Page 74874]]

title V operating permit applications and reopening existing title V 
permits, see the final Federal Plan for Commercial and Industrial Solid 
Waste Incinerators, October 3, 2003 (68 FR 57518, 57532), as well as 
the ``Summary of Public Comments and Responses'' document in the OSWI 
docket (EPA-HQ-OAR-2003-0156).

III. What are the changes to the rules since proposal?

    We made several revisions to the OSWI rules since proposal. As 
previously stated, a summary of public comments and EPA's responses to 
those comments is located in the docket. The following is a summary of 
the most significant changes.
Definitions
     Institutional facility. Replaced the term ``institution,'' 
as defined at proposal, with the term ``institutional facility'', which 
was the term we intended to define. Clarified that the term 
``institutional facility'' means land-based facility.
     Institutional waste. Revised the definition of 
``institutional waste'' to be clearer and to eliminate redundancy while 
maintaining the same meaning as the proposed definition.
     IWI unit and MWC unit. Revised the definitions of 
``institutional waste incineration unit'' and ``municipal waste 
combustion unit'' by adding ``cyclonic burn barrel'' as another example 
of an incinerator design.
     Clean lumber and wood waste. Clarified that the 
definitions of ``clean lumber'' and ``wood waste'' exclude wood 
products that contain adhesives.
     Administrator and EPA. Revised the definition of 
``Administrator'' and added a definition for the term ``EPA'' to 
clarify our intent with respect to implementation of the final OSWI 
rules. ``Administrator'' now means (1) For approved and effective State 
section 111(d)/129 plans, the Director of the State air pollution 
control agency, or his or her delegatee; (2) For Federal section 
111(d)/129 plans, the Administrator of the EPA, an employee of the EPA, 
the Director of the State air pollution control agency, or employee of 
the State air pollution control agency to whom the authority has been 
delegated by the Administrator of the EPA to perform the specified 
task; and (3) For NSPS, the Administrator of the EPA, an employee of 
the EPA, the Director of the State air pollution control agency, or 
employee of the State air pollution control agency to whom the 
authority has been delegated by the Administrator of the EPA to perform 
the specified task. ``EPA'' means the Administrator of the EPA or 
employee of the EPA that is delegated the authority to perform the 
specified task.
     Waste heat recovery. Clarified that ``waste heat 
recovery'' occurs outside of the combustion firebox.
Exclusions
     Rural IWI exclusion. Revised the rural IWI exclusion such 
that in addition to the proposed requirement that the unit must be more 
than 50 miles from the boundary of the nearest Metropolitan Statistical 
Area (MSA), the unit must also be in an area ``where alternative 
disposal options are not available or are economically infeasible.'' 
Also added provisions to require a facility to apply for the rural IWI 
exclusion and reapply for this exclusion every 5 years.
     Temporary-use exclusion. Added ice storms and high winds 
to the list of example disasters. Clarified that this exclusion 
includes air curtain incinerators. Restricted the exclusion to areas 
where a local, State, or Federal declaration of emergency or disaster 
has been proclaimed. Also revised the exclusion to require all 
temporary-use incinerators to submit notification if they will be used 
during a period that begins on the date the unit started operation and 
lasts more than 8 weeks within the boundaries of the current disaster 
area.
     Prohibited goods exclusion. Limited the exclusion to 
incinerators ``owned and/or operated by,'' not merely ``used by'' 
government agencies. Clarified that the exclusion applies only to goods 
confiscated by a government agency.
     National security exclusion. Determined that any IWI units 
used solely during military training field exercises to destroy 
national security materials integral to the field exercises are not 
subject to the final OSWI rules. Added a provision to allow other IWI 
units to apply for an exclusion if the units are used solely to destroy 
national security materials and a reliable alternative to incineration 
that would ensure acceptable destruction is not available.
Emission Limits
     Carbon monoxide (CO) limit. Revised the limit from 5 parts 
per million by volume (ppmv) to 40 ppmv on a 12-hour rolling average 
basis.
     Hydrogen chloride (HCl) limit. Revised the limit from 3.7 
ppmv to 15 ppmv.
Testing
     Added procedures to follow when performing Method 26A 
tests that will improve accuracy for testing wet scrubber-equipped 
incinerators.
     Clarified annual testing requirements for air curtain 
incinerators. If an air curtain incinerator has been out of operation 
for more than 12 months, it must be tested upon startup.
Technical Corrections and Clarifications
     In addition to the listed revisions, EPA made several 
technical revisions to correct cross-referencing and typographical 
errors and to improve clarity of the rules.

IV. Significant Issues and Changes--Public Comments

A. Applicability

    We received several comments on the scope and applicability of the 
proposed OSWI rules. These comments ranged from very specific ones 
dealing with a certain category of units, to more overarching comments 
concerning applicability of the OSWI rules in general. The following 
paragraphs contain the major discussions regarding applicability; 
additional details may be found in the summary of public comments and 
responses document in the docket.
1. General Applicability of OSWI Rules
    Two commenters expressed concern that the applicability of the 
proposed rules is not broad enough and that too many source categories 
are excluded or exempt from regulation. One commenter contended that 
EPA's OSWI regulation must include CAA section 129 standards for every 
category of solid waste incinerator that is not already regulated under 
CAA section 129. The commenter contended that the CAA requires EPA to 
set section 129 standards for any facility that combusts any solid 
waste, with the exception of facilities specifically exempted under CAA 
section 129(g)(1). The commenter made similar comments on most of the 
excluded types of units, stating that they should be subject to 
regulation under OSWI if they burn any nonhazardous waste. On the other 
hand, another commenter expressed support for the rationale regarding 
which sources will be regulated as OSWI units. The commenter urged EPA 
to avoid any significant changes to this stated rationale.
    The CAA is ambiguous regarding what categories of solid waste 
incineration units must be regulated under section 129(a)(1)(E). After 
discussing timelines for very specific categories of solid waste 
incinerators (e.g., large and small municipal waste

[[Page 74875]]

combustors, commercial and industrial waste incinerators, and hospital 
and medical waste incinerators), the CAA states only that EPA must 
publish a schedule for promulgating standards for ``other categories of 
solid waste incineration units.'' The statute does not unambiguously 
require, as implied by commenters, that the OSWI standards must apply 
to every other possible type of incineration unit burning any type of 
solid waste. If Congress had intended such a clear directive, it could 
have instructed EPA to regulate ``every'' other solid waste 
incineration unit. Yet Congress did not use such unambiguous language, 
leaving it to EPA to interpret the CAA in a reasonable manner. 
Moreover, the position adopted by commenters would lead to absurd 
results. Under their interpretation, a homeowner burning leaves in a 
barrel in his or her backyard must be subject to a CAA section 129 rule 
because the barrel is a unit combusting solid waste material. Congress 
cannot have intended that EPA regulate such sources under section 129, 
with all the attendant requirements. The language of section 129 
suggests that Congress wanted to focus EPA's attention to specific, 
larger incineration units (e.g., MWC units and CISWI units). Under this 
commenter's interpretation of section 129, however, EPA would have to 
establish MACT floors and emissions standards for dozens of different 
types of small incineration units with potentially minimal 
emissions.\1\ It takes an enormous effort and use of resources to 
develop a MACT floor and write a section 129 standard, and Congress 
cannot have meant that EPA would undertake that substantial effort a 
multitude of times merely by instructing EPA to address ``other'' 
categories of solid waste incineration units (assuming EPA even has the 
resources to undertake such efforts). Moreover, sources subject to 
section 129 standards must obtain title V operating permits and 
undertake extensive testing, monitoring, and recordkeeping even if EPA 
does not require additional controls under the section 129 standard, 
and regardless of the level of emissions from the sources. As noted 
elsewhere, EPA estimates that the costs of these requirements alone can 
more than quadruple the costs of owning and operating an incinerator. 
Again, Congress cannot have intended that every ``incineration'' unit 
as defined by the commenter, regardless of its size or its impact on 
public health and the environment, would have to shoulder these burdens 
merely by referencing an undefined ``other'' category of incineration 
units at section 129(a)(1)(E). Thus, the instructions to EPA to 
promulgate standards for ``other categories'' of solid waste 
incinerators inherently include the authority for EPA to reasonably 
delineate those ``other'' categories of solid waste incineration units.
---------------------------------------------------------------------------

    \1\ Total emissions of the regulated air pollutants from all 
units in the two subcategories regulated by the final OSWI rules are 
estimated to total only 2,272 tons per year.
---------------------------------------------------------------------------

    Thus, appropriately, the first step in EPA's rulemaking process was 
determining what universe of sources will be subject to the 
regulations. The statutory provisions of CAA sections 129(a), (g) and 
(h) make it clear that EPA must, as a part of the regulatory process, 
define which combustion units should be subject to regulation under CAA 
section 129 and hence, to which categories of solid waste combustion 
units the standards for ``other categories of solid waste incineration 
units'' apply. For example, the reference in CAA section 129(g)(1) to a 
permit issued under section 3005 of the SWDA, refers to units burning 
hazardous solid waste. This effectively limits the scope of EPA's 
authority under CAA section 129 to the regulation of solid waste 
incineration units that burn nonhazardous solid waste. In determining 
the scope of OSWI, EPA collected and analyzed data to identify 
potential OSWI units and determined that the regulations should focus 
on two categories of waste combustion units that are not regulated 
elsewhere: IWI units and VSMWC units. In the proposed rules, we also 
clarified that certain types of units are not regulated by the OSWI 
rules. Some of these units are specifically excluded by CAA section 129 
(e.g. hazardous waste combustion, small power production facilities, 
cogeneration facilities burning homogeneous waste). We also clarify 
that units are not covered under OSWI if they are already regulated 
under other CAA section 129 or CAA section 112 standards (e.g., small 
and large MWC, HMIWI, CISWI, boilers, cement kilns). The language of 
CAA section 129(h) makes clear the Congressional intent for CAA 
regulations under section 129 or section 112 to be mutually exclusive. 
Accordingly, sources subject to CAA section 112 standards are not OSWI 
units. Absence of regulation under CAA section 112, however, is not 
determinative of whether a unit is subject to the final OSWI rules.
    Moreover, we do not agree that the ``small power production 
facilities'' or ``qualifying cogeneration facilities'' described in CAA 
section 129(g)(1) are the only types of energy recovery facilities that 
are properly excluded from the OSWI category. We do not read section 
129(g)(1) to establish an exclusive list of excluded sources. (See 
National Wildlife Federation v. Gorsuch, 693 F.2d 156, 172 
(D.C.Cir.1982) (use of the term ``includes'' allows for additional, 
unstated meanings); Chemehuevi Indian Tribe v. California St. Bd. of 
Equalization, 757 F.2d 1047, 1054 (9th Cir.1985), rev'd on different 
grounds, 106 S.Ct. 289 (1985) (``includes'' is a term of enlargement, 
not of limitation); United States v. Huber, 603 F.2d 387, 394 (2d Cir. 
1979), cert. denied, 100 S.Ct. 1312 (1980) (use of the word 
``includes,'' rather than a more restrictive term such as ``means,'' 
indicates that the list is not exhaustive but merely illustrative).)
    As stated earlier, the final OSWI rules regulate IWI and VSMWC 
units. However, we determined that some subclasses of OSWI units should 
be handled differently due to unusual circumstances (e.g., unique 
geographic locations or climatic factors, temporary emergency use) that 
would prevent owners or operators of these units from having a feasible 
alternative waste disposal method. The availability of technically and 
economically feasible waste disposal alternatives is important because, 
as stated in the preamble to the proposed rules, CAA section 129 rules 
must contain testing, permitting, monitoring, recordkeeping, and 
reporting requirements. These requirements alone would easily double or 
triple the cost of operating a smaller incinerator like those covered 
by the final OSWI rules. Therefore, we expect CAA section 129 rules 
(even if they did not require air pollution controls) to force many 
incinerators to shut down and utilize alternative waste disposal 
options. However, for unique subclasses of units where such 
alternatives are not available, compliance with a rule would be 
infeasible yet shutdown of these units also is not an acceptable 
alternative. We excluded certain such subclasses from the final OSWI 
rules for the reasons described in the preamble to the proposed rules 
and in responses to comments. Of course, EPA and States may still 
regulate these subclasses under other provisions of the CAA, as 
necessary. (See CAA section 110(a)(2).)
2. Units With Energy Recovery and Other Types of Combustors
    Two commenters questioned the rationale of excluding incinerators 
(one commenter specified IWI units) with energy recovery from the 
definition of solid waste incinerators, and believe that an incinerator 
burning waste should be regulated as a waste

[[Page 74876]]

incinerator, no matter how the produced heat is used.
    First, we note that the energy recovery comment applies to IWI 
units, as all VSMWC units, with or without energy recovery, are subject 
to the final OSWI regulations. Those MWC units that recover energy 
serve dual purposes: (1) The disposal of municipal solid waste, and (2) 
energy recovery from the combustion of the waste. As a result of these 
dual purposes, MWC units are often boilers by design. The inclusion of 
a specific definition of ``municipal waste'' in CAA section 129 and 
other indications of Congressional intent support EPA's position that 
all MWC units should be regulated under section 129 of the CAA 
regardless of whether the MWC unit serves another purpose. The 
regulatory boundaries established in the rules for the large and small 
MWC units are quite clear that MWC units, regardless of their 
configuration, are regulated under section 129 of the CAA. Our intent 
is to maintain this interpretation in our regulation of VSMWC units 
under the final OSWI regulations. In summary, VSMWC units that are 
incinerators without energy recovery, incinerators with waste heat 
recovery, and boilers are all regulated under the final OSWI rules. See 
below for further discussion.
    The regulatory boundaries for IWI units, however, are not clearly 
defined by the CAA. As we have discussed, for the IWI subcategory of 
OSWI, EPA must define which types of sources should be included in the 
subcategory. In the process of developing the OSWI rules, developing 
the boilers NESHAP (promulgated at 69 FR 55218, September 13, 2004), 
developing rules for area source boilers, promulgating requirements for 
electric utility steam generating units (70 FR 28606, May 18, 2005), 
and establishing rules applicable to other combustion sources, EPA must 
map the regulatory boundaries that identify which units are subject to 
section 129.
    The distinction between IWI units and non-IWI combustion units is 
not readily apparent. For example, there is general agreement that coal 
that is combusted in a boiler is not waste, because coal is commonly 
thought of as a fuel. However, there are many other materials that are 
burned in institutional boilers for energy recovery. Such materials 
could include wood, paper, other biomass, plastics, and other items. 
Combustion of such materials, when burned in a boiler with energy 
recovery, is addressed under CAA section 112 regulations for boilers. 
EPA has determined that for purposes of the IWI subcategory of OSWI 
units, the critical consideration in determining whether the unit is 
burning institutional waste is the primary function of the combustion 
unit; and the primary indicator of function is whether or not a unit is 
designed and operated for energy recovery. On one hand, boiler units 
are specifically designed to recover the maximum amount of heat from 
combustion of a material. The boilers NESHAP covers combustion units at 
institutional facilities that burn solid materials and recover heat in 
the combustion firebox. Incineration units, on the other hand, are 
designed to discard materials by burning them at high temperatures and 
leaving as little residue as possible. Although incineration units do 
not have energy recovery in the combustion firebox, they may be 
followed by waste heat recovery units. Combustion units at 
institutional facilities that burn solid materials and do not recover 
heat in the combustion firebox, but do recover waste heat from the hot 
combustion gases following the combustion firebox, would not be covered 
by the boilers NESHAP. Waste heat recovery units are designed to cool 
the exhaust gas stream from an incineration unit, and/or recover, 
indirectly, the useful heat remaining in the exhaust gas. The presence 
of a waste heat recovery unit on the exhaust gas does not change the 
fact that the unit combusting the material is primarily an incineration 
unit burning waste for disposal purposes. EPA does not consider it 
appropriate to regulate such units as boilers. Therefore, we have 
determined that IWI units are those units that combust materials with 
only waste heat recovery (i.e., heat recovery outside of the combustion 
firebox) or without energy recovery.
    Our focus on the primary function of the unit to identify 
institutional waste is consistent with the provisions in section 129 of 
the CAA that apply to MWC units. In section 129, Congress specifically 
defined municipal waste as ``refuse (and refuse-derived fuel) collected 
from the general public and from residential, commercial, 
institutional, and industrial sources * * *.'' (See 42 U.S.C. section 
7429(g)(5).) This definition goes on to list specific materials 
included in municipal waste and exclude incineration units combusting 
30 percent or less municipal waste from the MWC standards. This 
definition of municipal waste provides more specific meaning to the 
phrase ``solid waste * * * from the general public'' set forth in 
section 129(g)(1) of the CAA. Based on the definition of municipal 
waste in section 129(g)(5), EPA has interpreted section 129 to cover 
all MWC units, including waste-to-energy facilities that have energy 
recovery as part of their integral design. When CAA section 129 was 
developed, EPA had already taken steps to promulgate new source 
performance standards and emissions guidelines for MWC units under 
section 111 of the CAA. Thus, by defining ``municipal waste'' in this 
manner in section 129(g)(5), Congress determined that MWC units should 
be regulated as under section 129 even if the MWC unit serves another 
purpose (e.g., energy recovery). This determination is consistent with 
our approach in the final OSWI rules because a primary function of a 
MWC unit is waste disposal.
    In contrast, Congress did not define ``other solid waste 
incineration unit'' or other types of ``waste.'' Thus, the CAA is 
ambiguous regarding whether every unit that burns material for energy 
recovery should be regulated under section 129 of the CAA. We have 
interpreted the CAA to allow EPA to consider the primary function of 
the combustion units in making the determination of whether particular 
units should be subject to CAA section 129. For reasons discussed 
earlier, this question is harder to answer in the context of 
institutional facilities where certain combustion units have been 
historically considered boilers, rather than incinerators, based on the 
combustion of solid materials commonly regarded as fuels. However, in 
the case of municipal waste combustors, there has been little or no 
disagreement among industry, government agencies, and environmental 
groups on the meaning of MSW and the fact that the section 129 rules 
cover all MWC units. Thus, we did not have to address this issue at 
length in the MWC rules. (See 69 FR 7394, n.5.)
    One of the commenters also contended that EPA has not proposed 
standards for all solid waste combustion technologies. The commenter 
listed pyrolysis, thermal oxidation, catalytic cracking, plasma arcs, 
catalytic oxidation, flameless thermal oxidizers, and gasification as 
technologies that have been used to combust solid waste, despite not 
having the name ``incineration.''
    EPA notes that the commenter did not provide any details regarding 
these other technologies or the materials that are processed by these 
technologies. Some of these types of units may well be covered under 
the CAA section 129 final OSWI rules. For example, pyrolysis/combustion 
units (two chamber incinerators with a starved air primary chamber 
followed by an

[[Page 74877]]

afterburner to complete combustion) within the VSMWC and IWI 
subcategories are considered OSWI units. In addition, thermal 
oxidizers, catalytic oxidizers, and flameless thermal oxidizers, if 
used to combust solid waste, could be subject to the final OSWI rules 
or other section 129 rules if they meet the appropriate applicability 
requirements. It is important to note, however, that these types of 
units often are used to combust uncontained gases (generally from 
industrial processes) and are not used to dispose of solid waste. Such 
units would not be subject to the final OSWI rules. The other types of 
units mentioned by the commenter appear to be either: (1) part of 
industrial processes (e.g. catalytic cracking) and are regulated under 
CAA section 112 and other standards for the specific industrial 
process; (2) noncombustion thermal technologies that operate with an 
external heat source (e.g. plasma arc); or (3) technologies that are 
specifically designed to prevent combustion reactions, and, instead are 
used to produce fuel or chemical feedstocks via controlled chemical 
reactions (e.g. gasification). Any of these technologies that are used 
to process hazardous waste are excluded from CAA section 129, and any 
of these technologies that are regulated as site remediation units 
under CAA section 112 are also not subject to section 129.
3. Potential OSWI Subcategories Where No Units Could Be Identified
    One commenter contended that EPA's failure to identify any units 
burning manure or livestock bedding, wood waste, or construction and 
demolition waste does not excuse EPA from setting emission standards 
for such units.
    EPA made significant attempts to identify incinerators in 
determining which types of sources to regulate under the final OSWI 
rules. As part of the industrial combustion coordinated rulemaking 
(ICCR), we sent a questionnaire to nearly 12,000 facilities identified 
as having a combustion unit (including boilers, heaters, and 
incinerators) burning non-fossil materials. This included every 
facility we could identify from Federal and State databases and 
stakeholder input. We received responses from the vast majority of 
these facilities, although many were no longer operating their 
incinerators. These responses provided design and operating information 
on over 1,100 combustion units burning wood. However, all of these 
sources were either boilers or process heaters with integral energy 
recovery that are being addressed under CAA section 112, or commercial 
or industrial incineration units that are appropriately regulated under 
CISWI. We are not aware of, nor has the commenter provided any 
information on, any other wood-fired units remaining for consideration 
as potential OSWI units.
    Similarly, a few units were identified that combust agricultural 
residues such as bagasse, rice hulls, etc. for the purpose of energy 
recovery, and, thus, are all boilers and are being addressed under CAA 
section 112. Prior to proposal of the OSWI rules, we updated the ICCR 
list of potential OSWI units by searching the latest version of the 
national emissions inventory (NEI), which contains the latest data from 
State databases and various Federal programs, for incineration units 
burning non-fossil materials. We also contacted State agriculture 
departments to request information on agricultural incineration; 
contacted trade associations; contacted incinerator vendors to 
determine what types of incinerators they have been selling and to what 
markets; and performed Web searches. After these extensive efforts, we 
were not able to locate any incineration units in several potential 
subclasses described in the preamble to the proposed rules. This result 
is not surprising because vendor contacts and feedback from facilities 
that used to operate OSWI units have shown us that the use of 
incineration for waste disposal is declining, especially where the 
units do not recover energy. Given our prior efforts to identify these 
types of units and the trends in incineration, we do not believe that 
these types of units currently operate. Furthermore, public commenters 
on the proposed rules have not provided specific information on any 
such sources. Because we are unable to locate such units and have no 
data on them, we are not, and indeed cannot regulate them at this time.
    Public commenters on the proposed rules have not provided any 
information demonstrating that there are agricultural waste 
incinerators, construction or demolition incinerators, or wood waste 
incinerators that are not boilers. EPA cannot set a standard under CAA 
section 129 without adequate operating, emissions, and control 
technology information for sources within the category. Thus, contrary 
to the commenter=s suggestion, EPA could not speculate or estimate and 
set a CAA section 129 standard Ajust in case.'' Therefore, because we 
are unable to locate any such units and have no data on how such 
hypothetical units, if used in the future, may operate, we are not 
including agricultural waste, construction or demolition, or wood waste 
incinerators as subcategories of OSWI.
4. Rural Institutional Waste Incinerators
    Two commenters suggested that the exemption for rural IWI units is 
too broad. One commenter contended that the locations proposed to be 
exempted include many areas where solid waste collection and disposal 
services are readily available at reasonable cost, and, therefore, the 
exemption is not justified. The commenter also contended that this 
raises questions regarding environmental justice, as the exemption 
implies that economically disadvantaged communities should have worse 
air quality standards because they are economically disadvantaged. 
Furthermore, the commenter pointed out that U.S. Government facilities 
(i.e., Department of Defense) do not have the limited tax base and, 
therefore, EPA's reasons for the rural exemption do not apply. Both 
commenters recommended that the rural exemption be narrowed further to 
include only those areas where landfills or other nonincineration 
options are not available or feasible.
    To address commenters' concerns, EPA is narrowing the rural IWI 
exclusion to apply only to those IWI units that are more than 50 miles 
from the boundary of the nearest MSA and where alternative disposal 
options are not available or are economically infeasible. In the final 
OSWI rules, there are provisions that specify how a facility may apply 
for this exclusion. For existing units, the application must be 
submitted to the Administrator at least 1 year before the final 
compliance date to ensure that there is adequate time for any 
additional dialogue necessary to determine if an exclusion is 
warranted, and, if the exclusion is denied, adequate time for the 
facility to install controls or otherwise arrange for disposal of their 
waste. For new units, the application must be submitted to and approved 
by the Administrator prior to initial startup.
    By narrowing the exclusion to include only those areas Awhere 
alternative disposal options are not available or are economically 
infeasible,'' we have addressed the commenter=s concern that we should 
not exempt sources located where waste disposal alternatives are 
available at a reasonable cost. Our analysis of remote institutional 
waste disposal costs indicates that a 50 mile distance to dispose of 
waste is approximately the distance where the costs of operating an 
incinerator (without control technology) would equal those of taking 
the waste to a landfill, transfer station, or small or

[[Page 74878]]

large MWC unit. As such, we believe that 50 miles from a MSA is a 
minimum point where institutional facilities would be able to make a 
legitimate case that they qualify for the exclusion. To clarify the 
geographical criteria, the MSA definitions that will be used as one 
component of the exclusion are based upon those found in AUpdated 
Statistical Definitions and Their Uses' OMB Bulletin 05-02, February 
22, 2005.
    We realize that, over time, population density changes may cause 
revisions to the definitions of MSA that would affect the rural status 
of a rural IWI unit. Furthermore, there may be situations where 
alternative waste disposal options become available such that the unit 
may not be able to demonstrate adverse economic impacts of using an 
alternative means of disposal or the IWI unit is no longer necessary to 
the institutional facility. To address these situations, we are adding 
provisions that require sources granted an exclusion as a rural IWI 
unit to reapply for the exclusion every 5 years following the date the 
exclusion is granted by the Administrator. If the Administrator finds 
that the IWI unit no longer qualifies for the exclusion, then the unit 
is given 3 years to comply with the requirements of the final OSWI 
rules.
    In response to the second issue put forth by the commenter, we 
disagree that we are implying that economically disadvantaged 
communities should have worse air quality. As we have discussed in the 
preamble to the proposed rules, some disposal alternatives to 
incineration, such as open burning, are worse for air quality than 
incineration. If the rural institutional facility is unable to afford 
compliance and there are no other disposal alternatives (e.g., 
landfills, MWC), then the facility may resort to open burning, 
littering, or dumping. Open burning presents not only air pollution 
problems, but can also lead to an increased likelihood of accidental 
fires. Littering and dumping pose problems such as potential 
contamination of streams or other water bodies, and attracting vermin 
and wild animals, which could contribute to disease transmission. The 
facility, in applying for the rural IWI exclusion, must make a case 
that suitable alternatives, such as landfilling or hauling waste to a 
MWC unit, are not available or are not economically feasible. Although 
we discussed concerns about the local tax base for school districts in 
the preamble to the proposed rules, it was but one reason for the 
exclusion which applies to all rural IWI units, not just those located 
at schools. Thus, other institutions (e.g., Federal facilities, 
churches) may apply for the exclusion, although we note that certain 
institutions with larger budgets may have a harder time showing that 
alternative waste disposal options are economically infeasible.
5. Alaskan Exclusion
    Three commenters requested that the exclusion for incinerators in 
isolated areas of Alaska be broadened. Two commenters expressed concern 
that the proposed rules do not exempt VSMWC units used to combust 
municipal-type waste generated at oil-field base operations facilities 
and remote camps on Alaskan oil fields.
    EPA stresses that the final OSWI rules apply only to VSMWC and IWI 
units, and they provide an exclusion for units used at solid waste 
disposal sites in Alaska that are classified as Class II or Class III 
municipal solid waste landfills. If the incinerators operated by the 
commenters meet the definition of VSMWC units and are used at solid 
waste disposal sites in Alaska that are classified as Class II or Class 
III municipal solid waste landfills, then they would be excluded from 
the final OSWI rules. We have insufficient information about the units 
operated by these commenters (e.g., operating at an oil exploration 
site or oil-field base camp) to determine if they are VSMWC units, but 
they appear to be operated by industrial or commercial entities and 
would likely not meet the definitions of a VSMWC or IWI unit in the 
final OSWI rules. To be a VSMWC unit under the final OSWI rules, the 
incinerator must be burning municipal solid waste collected from 
multiple sites. To be an IWI unit under the final OSWI rules, the 
incinerator must be located at an institutional facility (i.e., land-
based facility owned and/or operated by an organization having a 
governmental, educational, civic, or religious purpose) and be burning 
waste generated at that institutional facility. Incinerators at an 
industrial or commercial facility that burn only waste generated on 
site at that facility are not VSMWC or IWI units. If the commenter's 
units are not VSMWC or IWI units, they would not be subject to the 
final OSWI rules. We recognize that the final CISWI rules do not 
currently cover commercial/industrial-owned/operated incinerators that 
burn only municipal-type