[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82269-82272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32971]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R04-OAR-2010-0392(a); FRL-9246-6]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; State of Florida; Control of Large Municipal 
Waste Combustor (LMWC) Emissions From Existing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; notice of administrative change.

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SUMMARY: EPA is approving the Clean Air Act (CAA) section 111(d)/129 
State Plan (the Plan) submitted by the Florida Department of 
Environmental Protection (FDEP) for the State of Florida on July 12, 
2007, for implementing and enforcing the Emissions Guidelines (EGs) 
applicable to existing Large Municipal Waste Combustors (LMWCs). These 
EGs apply to municipal waste combustors with a capacity to combust more 
than 250 tons per day of municipal solid waste (MSW).

DATES: This direct final rule is effective February 28, 2011 without 
further notice, unless EPA receives adverse comment by January 31, 
2011. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R04-OAR-2010-0392 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: <a href="/cdn-cgi/l/email-protection#5a3d3b282c3f28743e3b34333f361a3f2a3b743d352c"><span class="__cf_email__" data-cfemail="385f594a4e5d4a165c5956515d54785d4859165f574e">[email protected]</span></a>.
    3. Fax: (404) 562-9095.
    4. Mail: EPA-R04 OAR-2010-0392, Daniel Garver, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 
30303.
    5. Hand Delivery or Courier: Mr. Daniel Garver, Air Toxics 
Assessment and Implementation Section, Air Toxics and Monitoring 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, 
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 am to 4:30 
pm, excluding federal holidays.
    Instructions: Direct your comments to Docket ID Number EPA-R04-OAR-
2010-0392. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on

[[Page 82270]]

the Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Toxics 
Assessment and Implementation Section, Air Toxics and Monitoring 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 am to 4:30 pm, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Garver, Air Toxics Assessment 
and Implementation Section, Air Toxics and Monitoring Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-9839. Mr. Garver can also 
be reached via electronic mail at <a href="/cdn-cgi/l/email-protection#345355464251461a50555a5d5158745144551a535b42"><span class="__cf_email__" data-cfemail="680f091a1e0d1a460c0906010d04280d1809460f071e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
I. Background
II. Review of Florida's Municipal Waste Combustor (MWC) Plan 
Revision
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Section 129(a)(5) of the CAA requires EPA to conduct a 5-year 
review of the solid waste incinerator new source performance standards 
(NSPS) and emission guidelines (EGs) and revise both, as appropriate. 
Accordingly, in the May 10, 2006, edition of the Federal Register, EPA 
promulgated revised LMWC rules under sections 111 and 129 of the CAA. 
Section 129(b)(2) of the CAA requires states to submit to EPA for 
approval state plans and revisions that implement and enforce the 
amended EGs, in this case, 40 CFR part 60, subpart Cb. State plans and 
revisions must be at least as protective as the EGs, and become 
federally enforceable as a section 111(d)/129 plan revision upon 
approval by EPA. The procedures for adoption and submittal of state 
plans and revisions are codified in 40 CFR part 60, subpart B.

II. Review of Florida's MWC Plan Revision

    The required Florida 111(d)/129 Plan revision was submitted by FDEP 
to EPA on July 12, 2007. EPA has reviewed the plan revision for 
existing LMWC units in the context of the requirements of 40 CFR part 
60, and subparts B and Cb, as amended. State plans must include the 
following nine essential elements: (1) Identification of legal 
authority, (2) identification of mechanism for implementation, (3) 
inventory of affected facilities, (4) emissions inventory, (5) 
emissions limits, (6) compliance schedules, (7) testing, monitoring, 
recordkeeping, and reporting, (8) public hearing records, and (9) 
annual state progress reports on facility compliance.

A. Identification of Legal Authority

    Federal regulations found at 40 CFR 60.26 require the plan to 
demonstrate that the State has legal authority to adopt and implement 
the emission standards and compliance schedules. FDEP has demonstrated 
that it has the legal authority to adopt and implement the emission 
standards and compliance governing MWC emissions. FDEP's legal 
authority is derived from state law found at Florida Statutes (F.S.) 
Sec. 403.031 (Definitions), F.S. Sec. 403.061 (Department powers and 
duties), F.S. Sec. 403.0872 (Title V air operating permits), and F.S. 
Sec. 403.8055 (Authority to adopt federal standards by reference). F.S. 
Subsections 403.061(6), (7), (8), and (13) give the authority for 
obtaining information and for requiring recordkeeping, and use of 
monitors. F.S. Subsection 403.061(35) gives the department authority to 
exercise the duties, powers, and responsibilities required of the State 
under the CAA. The sections of the Florida Statutes that give authority 
for compliance and enforcement authority are 403.121 (Judicial and 
administrative remedies), F.S. Sec. 403.131 (Injunctive relief), F.S. 
Sec. 403.141 (Civil remedies), and 403.161 (Civil and criminal 
penalties) Finally, F.S. Sec. 119.07 is the authority for making the 
information available to the public. Furthermore, FDEP has submitted 
and EPA has approved a previous Florida 111(d)/129 Plan for LMWCs that 
demonstrate the required legal authority (40 CFR 62.2355). Therefore, 
the Plan meets the requirements of 40 CFR 60.26.

B. Identification of Enforceable State Mechanisms for Implementing the 
Plan

    The subpart B provision at 40 CFR 60.24(a) requires that state 
plans include emissions standards, defined 40 CFR 60.21(f) as ``a 
legally enforceable regulation setting forth an allowable rate of 
emissions into the atmosphere, or prescribing equipment specifications 
for control of air pollution emissions.'' Florida Administrative Code 
(F.A.C.) Chapter 62-204.800, ``Federal Regulations Adopted by 
Reference'' has been amended to incorporate revisions to subpart Cb. 
These amendments to F.A.C. Rule 62-204.800(8) and (9), for Standards of 
Performance for New Stationary Sources and Emission Guidelines and 
Compliance Times, respectively, were proposed on April 6, 2007, and 
became effective on May 31, 2007. These rules meet the requirement of 
40 CFR 60.24(a) to have a legally enforceable emission standard.

C. Inventory of Affected MWC Units

    Federal regulations found at 40 CFR 60.25(a) require the plan to 
include a complete source inventory of all LMWC units. FDEP has 
identified ten (10) affected facilities. An affected facility is not 
exempt from applicable sections 111(d)/129 requirements because it is 
not listed in the inventory compiled by FDEP. The affected facilities 
identified by FDEP are shown in the table below:

------------------------------------------------------------------------
            Facility name                             City
------------------------------------------------------------------------
Lake County Resource Recovery........  Okahumpka.
Pasco County Solid Waste.............  Hudson.
Hillsborough County Resource Recovery  Tampa.
McKay Bay Refuse-to-Energy...........  Tampa.
Pinellas Resource Recovery...........  St. Petersburg.
Lee County Resource Recovery.........  Fort Myers.
Palm Beach Solid Waste Authority.....  West Palm Beach.
North Broward County Resource          Pompano Beach.
 Recovery.
South Broward County Resource          Fort Lauderdale.
 Recovery.
Dade County Resource Recovery........  Miami.
------------------------------------------------------------------------


[[Page 82271]]

D. Inventory of Emissions From Affected MWC Units

    Federal regulations found at 40 CFR 60.25(a) require that the plan 
include an emissions inventory that estimates emissions of the 
pollutant regulated by the EGs. Emissions from MWC units contain 
organics (dioxin/furans), metals (cadmium, lead, mercury, particulate 
matter, opacity), and acid gases (hydrogen chloride, sulfur dioxide, 
and nitrogen oxides). FDEP submitted a supplement to its 111(d)/129 
Plan to EPA on September 30, 2009. This supplement contains MWC unit 
emissions rates for each regulated pollutant for each designated 
facility based on the most recent stack test data. This meets the 
emission inventory requirements of 40 CFR 60.25(a).

E. Emissions Limitations for MWC Units

    Federal regulations found at 40 CFR 60.24(c) specify that the state 
plan or revision must include emission standards that are no less 
stringent than the EGs, except as specified in 40 CFR 60.24(f), which 
allows for less stringent emission limitations on a case-by-case basis 
if certain conditions are met. This exception clause is superseded by 
section 129(b)(2) of the CAA, which requires that state plans be ``at 
least as protective'' as the EGs. Since F.A.C. Rule 62-204.800(9) 
b.3.a. through i., specifically adopts by reference the EGs contained 
in 40 CFR part 60 subpart Cb, the emission standards are ``at least as 
protective'' as those in subpart Cb, as amended.

F. Compliance Schedules

    Federal regulations found at 40 CFR 60.24(c) and (e), require that 
a state plan must include an expeditious compliance schedule that 
owners and operators of affected MWC units must meet in order to comply 
with the requirements of the plan. F.A.C. Rule 62-204.800(9) b.3.a. 
through i., specifically adopts by reference the compliance schedules 
listed in 40 CFR 60.33b. The Plan revision meets applicable Federal 
requirements for compliance schedules.

G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), 
stipulate facility testing, monitoring, recordkeeping and reporting 
requirements for state plans. F.A.C. Rule 62-204.800(9)b.7., and 8., 
adopts by reference the monitoring, recordkeeping, and reporting 
requirements found at 40 CFR 60.58b and 60.59b, respectively. The Plan 
revision meets applicable Federal requirements for testing, monitoring, 
recordkeeping, and reporting requirements.

H. A Record of Public Hearing on the State Plan Revision

    A public hearing on the plan revision was held on April 27, 2007. 
Applicable portions of F.A.C. Chapter 62-204.800, amendments became 
effective on May 31, 2007. FDEP provided evidence of complying with 
public notice and other hearing requirements, including a record of 
public comments received. FDEP also certified that ``the public notice 
and hearing requirements of all applicable state and federal 
regulations have been satisfied with respect to this submittal.'' FDEP 
has met the requirement of 40 CFR 60.23 for a public hearing.

I. Annual State Progress Reports to EPA

    FDEP must submit to EPA on an annual basis a report which details 
the progress in the enforcement of the plan in accordance with 40 CFR 
60.25(e) and (f). Accordingly, FDEP will submit annual reports on 
progress in plan enforcement to EPA on an annual (calendar) basis, 
commencing with the first full report period after plan revision 
approval.

III. Final Action

    Based upon the rationale discussed above, EPA is approving the 
Florida Plan revision and related F.A.C. Rule 62-204.800(9) amendments, 
as adopted on May 31, 2007. This approval excludes certain authorities 
retained by EPA, and as stated in 40 CFR 60.30b(b) and 60.50b(n). As 
required by 40 CFR 60.28(c), any revisions to the Florida Plan or 
supporting regulations will not be considered part of the applicable 
plan until submitted by FDEP in accordance with 40 CFR 60.28(a) or (b), 
as applicable, and until approved by EPA in accordance with 40 CFR part 
60, subpart B, requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirement for state air pollution control agencies and existing LMWC 
units that are subject to the provisions of 40 CFR part 60, subpart Cb 
and related subpart Eb. However, in the ``Proposed Rules'' section of 
this Federal Register publication, EPA is publishing a separate 
document that will serve as the proposal to approve the section 111(d)/
129 Plan revision should relevant adverse or critical comments be 
filed. This rule will be effective January 31, 2011 without further 
notice unless EPA receives adverse comments by January 31, 2011. If EPA 
receives adverse comments, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule did not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. The EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time. If no such comments are received, the public is advised 
that this rule will be effective on February 28, 2011 and no further 
action will be taken on the proposed rule.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/
129 plan submission that complies with the provisions of the CAA and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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

[[Page 82272]]

application of those requirements would be inconsistent with the CAA; 
and
    <bullet> Does not provide 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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the 111(d)/129 Plan is not approved to apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.
    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. EPA will submit a report containing this action 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 the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 28, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 62

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

    Dated: November 8, 2010.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.


0
40 CFR part 62, subpart K, is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart K--Florida

0
2. Section 62.2355 is revised to read as follows:


Sec.  62.2355  Identification of sources.

    (a) The plan applies to existing facilities with a municipal waste 
combustor (MWC) unit capacity greater than 250 tons per day of 
municipal solid waste (MSW), and for which construction, 
reconstruction, or modification was commenced on or before July 12, 
2007.
    (b) On July 12, 2007, Florida submitted a revised State plan and 
related Florida Administrative Code amendments as required by 40 CFR 
part 60, subpart Cb, amended on May 10, 2006.
    (c) The plan is effective as of May 31, 2007.

[FR Doc. 2010-32971 Filed 12-29-10; 8:45 am]
BILLING CODE 6560-50-P


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