[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Rules and Regulations]
[Pages 60785-60787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29860]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[FL-70-1-9738a; FRL-5920-3]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the Sections 111(d)/129 State Plan submitted 
by Florida on November 18, 1996, for implementing and enforcing the 
Emissions Guidelines (EG) applicable to

[[Page 60786]]

existing Municipal Waste Combustors (MWCs) with capacity to combust 
more than 250 tons/day of municipal solid waste (MSW). See 40 CFR part 
60, subpart Cb.

DATES: This final rule is effective January 12, 1998 unless significant 
material, and adverse comments are received by December 15, 1997. If 
the effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments on this action should be addressed to Joey 
LeVasseur at the Environmental Protection Agency, Region 4, Air 
Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104. 
Copies of materials submitted to EPA may be examined during normal 
business hours at the following locations: EPA Region 4, Atlanta 
Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104, and 
at Florida Department of Environmental Protection, Air Resources 
Management Division, Twin Towers Office Building, 2600 Blair Stone 
Road, Tallahassee, Florida 32399-2400.

FOR FURTHER INFORMATION CONTACT: Scott Davis at 404/562-9127 or Joey 
LeVasseur at 404/562-9035.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 19, 1995, pursuant to sections 111 and 129 of the Clean 
Air Act (Act), EPA promulgated new source performance standards (NSPS) 
applicable to new MWCs and EG applicable to existing MWCs. The NSPS and 
EG are codified at 40 CFR part 60, Subparts Eb and Cb, respectively. 
See 60 FR 65387. Subparts Cb and Eb regulate the following: particulate 
matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, 
carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.
    On April 8, 1997, the United States Court of Appeals for the 
District of Columbia Circuit vacated Subparts Cb and Eb as they apply 
to MWC units with capacity to combust less than or equal to 250 tons/
day of MSW (small MWCs), consistent with their opinion in Davis County 
Solid Waste Management and Recovery District v. EPA, 101 F.3d 1395 
(D.C. Cir. 1996), as amended, 108 F.3d 1454 (D.C. Cir. 1997). As a 
result, Subparts Eb and Cb apply only to MWC units with individual 
capacity to combust more than 250 tons/day of municipal solid waste 
(large MWC units).
    Under section 129 of the Act, emission guidelines are not Federally 
enforceable. Section 129(b)(2) of the Act requires States to submit to 
EPA for approval State Plans that implement and enforce the emission 
guidelines. State Plans must be at least as protective as the emission 
guidelines, and become Federally enforceable upon approval by EPA. The 
procedures for adoption and submittal of State Plans are codified in 40 
CFR Part 60, Subpart B. EPA originally promulgated the Subpart B 
provisions on November 17, 1975. EPA amended Subpart B on December 19, 
1995, to allow the subparts developed under section 129 to include 
specifications that supersede the general provisions in Subpart B 
regarding the schedule for submittal of State Plans, the stringency of 
the emission limitations, and the compliance schedules. See 60 FR 
65414.
    This action approves the State Plan submitted by Florida to 
implement and enforce Subpart Cb, as it applies to large MWC units 
only.

II. Discussion

    The Florida Department of Environmental Protection (FDEP) submitted 
to EPA the following in their 111(d)/129 State Plan for implementing 
and enforcing the emission guidelines for existing MWCs in the State: 
Legal Authority; Enforceable Mechanisms; Inventory of MWC Units; 
Emission Inventory; Compliance Schedules and Closure Agreements; 
Testing, Monitoring, Recordkeeping and Reporting; Annual State Progress 
Reports; and applicable State regulations (Rules 62-204.800(8), 62-
296.416, and 62-296.401(6) of the Florida Administrative Code) on 
November 18, 1996. FDEP submitted its plan before the Court of Appeals 
vacated Subpart Cb as it applies to small MWC units. Thus, FDEP's plan 
covers both large and small MWC units. As a result of the Davis 
decision and subsequent vacatur order, there are no emission guidelines 
promulgated under sections 111 and 129 that apply to small MWC units. 
Accordingly, EPA's review and approval of FDEP's State Plan for MWCs 
addresses only those parts of FDEP's Plan which affect large MWC units. 
Small units are not subject to the requirements of the Federal Rule and 
not part of this approval. Until EPA again promulgates emission 
guidelines for small MWC units, EPA has no authority under section 
129(b)(2) of the Act to review and approve State Plans applying state 
rules to small MWC units.
    The approval of FDEP's State Plan is based on finding that: (1) 
FDEP provided adequate public notice of public hearings for the 
proposed rulemaking which allows Florida to implement and enforce the 
EG for large MWCs, and (2) FDEP also demonstrated legal authority to 
adopt emission standards and compliance schedules applicable to the 
designated facilities; enforce applicable laws, regulations, standards 
and compliance schedules; seek injunctive relief; obtain information 
necessary to determine compliance; require recordkeeping; conduct 
inspections and tests; require the use of monitors; require emission 
reports of owners and operators; and make emission data publicly 
available.
    In Sections 2.1, 2.2, and 2.3 of the State Plan, FDEP cites all 
emission standards and limitations for the major pollutant categories 
related to the designated sites and facilities. These standards and 
limitations in Rules 62-204.800(8) and 62-296.416 are approved as being 
at least as protective as the Federal requirements contained in Subpart 
Cb for existing large MWC units.
    Florida submitted compliance schedules and legally enforceable 
increments of progress and, where applicable, closure agreements for 
each large MWC. This portion of the State Plan (Section 5.0) has been 
reviewed and approved as being at least as protective as Federal 
requirements for existing large MWC units.
    Florida's Plan includes its legal authority to require owners and 
operators of designated facilities to maintain records and report to 
the State the nature and amount of emissions and any other information 
that may be necessary to enable the State to judge the compliance 
status of the facilities. Florida also cites its legal authority to 
provide for periodic inspection and testing and provisions for making 
reports of MWC emissions data, correlated with emission standards that 
apply, available to the general public. Florida submitted Rule 62-
204.800(8)(b) F.A.C. to support the requirements of monitoring, 
reporting, and compliance assurance. These State rules have been 
reviewed and approved as meeting Federal requirements for existing 
large MWC units.
    As stated in Section 8.0 of the State Plan, Florida plans to 
provide progress reports of plan updates on an annual basis in 
conjunction with the required annual reports pursuant to 40 CFR section 
51.321. This meets the minimum requirement for State reporting and is 
approved.

Final Action

    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse

[[Page 60787]]

comments. However, in a separate document in this Federal Register 
publication, the EPA is proposing to approve the revision should 
significant, material, and adverse comments be filed. This action will 
be effective January 12, 1998 unless, by December 15, 1997, adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent notice that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective January 12, 1998.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. This Federal action approves pre-
existing requirements under Federal, State or local law, and imposes no 
new requirements on any entity affected by this rule, including small 
entities. Therefore, these amendments will not have a significant 
impact on a substantial number of small entities.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 12, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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. 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, Municipal waste 
combustors, Reporting and recordkeeping requirements.

    Dated: October 14, 1997.
A. Stanley Meiburg,
Acting Regional Administrator.

    40 CFR part 62 of the Code of Federal Regulations is amended as 
follows:

PART 62--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7642.

Subpart K--Florida

    2. Part 62.2350 is amended by adding paragraphs (b)(5) and (c)(3) 
to read as follows:


Sec. 62.2350  Identification of plan.

* * * * *
    (b) *  *  *
    (5) Control of metals, acid gases, organic compounds and nitrogen 
oxide emissions from existing municipal waste combustors was submitted 
by the Florida Department of Environmental Protection on November 18, 
1996.
    (c) *  *  *
    (3) Existing municipal waste combustors.
    3. Subpart K is amended by adding a new Sec. 62.2355 and a new 
undesignated center heading to read as follows:
Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions From 
Existing Municipal Waste Combustors With the Capacity To Combust 
Greater Than 250 Tons Per Day of Municipal Solid Waste


Sec. 62.2355  Identification of sources.

    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).

[FR Doc. 97-29860 Filed 11-12-97; 8:45 am]
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