[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Rules and Regulations]
[Pages 41427-41429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20771]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region 2 Docket No. NY28-2-180b, FRL-6134-7]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
State Plan submitted by New York to fulfill the requirements of 
sections 111(d)/129 of the Clean Air Act for Municipal Waste Combustors 
(MWC). The State Plan addresses the implementation and enforcement of 
the Emissions Guidelines (EG) applicable to existing large MWC units 
with individual capacity to combust more than 250 tons per day of 
municipal solid waste. The State Plan imposes emission limits and 
control requirements for the existing MWC's in New York which will 
reduce the designated pollutants.

DATES: This direct final rule is effective on October 5, 1998 without 
further notice, unless EPA receives adverse comment by September 3, 
1998. If adverse comment is received, EPA 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: All comments should be addressed to: Ronald J. Borsellino, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    Copies of the state submittal are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division of 
Air Resources, 50 Wolf Road, Albany, New York 12233.

[[Page 41428]]

Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, S.W., Washington, 
D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Christine DeRosa or Kirk Wieber, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

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 Municipal Waste Combustors (MWCs) and Emission 
Guidelines (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 designated pollutants: 
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 
per day (tpd) of municipal solid waste (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 tpd 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 EG, 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 New York to implement and enforce subpart Cb, as it 
applies to existing large MWC units with individual capacity to combust 
more than 250 tpd of municipal solid waste.

State Submittal

    On December 15, 1997, the New York State Department of 
Environmental Conservation (NYSDEC) submitted to EPA a section 111(d)/
129 plan to implement 40 CFR part 60 subpart Cb--Emission Guidelines 
for existing large MWC units located in New York State. This submittal 
was supplemented by the NYSDEC on June 22, 1998. New York's submittal 
as supplemented included: the necessary legal authority; enforceable 
mechanisms; enforceable compliance schedules; inventory of MWC units; 
emissions inventory; testing, monitoring, recordkeeping, and reporting 
requirements; provision for annual state progress reports; and record 
of public hearing. New York held a public hearing on May 27, 1998 for 
all of the required elements of the MWC State Plan.

Review of State Submittal

    New York has adopted by reference the requirements of the emissions 
guidelines (including emissions limitations, testing, monitoring, 
recordkeeping and reporting requirements) in Part 200 of title 6 of the 
New York Code of Rules and Regulations of the State of New York, 
entitled, ``General Provisions'' and will enforce the requirements 
under Part 201, entitled, ``Permits and Registration'' both effective 
July 7, 1996. By incorporating the EG by reference into Part 200, 
NYSDEC has the authority to include them as applicable requirements in 
permits of emission sources subject to such requirements and to enforce 
such requirements.
    New York included in its submittal an inventory of all seven MWC 
plants/units in the State affected by the State Plan. New York has also 
confirmed that affected units located in New York State that have 
ceased operation are either partially or totally dismantled. Facilities 
that have chosen a schedule for compliance that exceeds one year 
following State Plan approval have provided post-1990 dioxin/furan test 
results and these were included in New York's submittal.
    The schedules for compliance with the requirements incorporated by 
reference in Part 200 for each of the seven affected facilities were 
included as part of New York's submittal to EPA. These schedules are 
enforceable and have been incorporated into each facility's existing 
State operating permit and will also be incorporated into each 
facility's Title V permit. In addition, the Title V permits for each 
facility, once issued, will contain the applicable requirements of 40 
CFR part 60, subpart Cb (EG for existing large MWC's) that were 
incorporated by reference in New York's Part 200. These include 
emission limitations, operating requirements, testing requirements and 
training requirements. The Title V permit process will include a public 
hearing for each affected facility.
    New York will submit to EPA annual reports on the progress in the 
implementation of the State Plan. These will be incorporated into the 
reports required by 40 CFR part 51, Sec. 51.321, ``Annual source 
emissions and state action report.'' These reports will include 
compliance status, enforcement actions, increments of progress, 
identification of sources that have ceased operation or started 
operation, emissions inventory information for sources that have 
started operation, updated emission inventory and compliance 
information, and copies of technical reports on all performance testing 
and monitoring, including concurrent process data.

Conclusion

    EPA has evaluated the MWC State Plan submitted by New York for 
consistency with the Act, EPA guidelines and policy. EPA has determined 
that New York's State Plan meets all requirements and, therefore, EPA 
is approving New York's Plan to implement and enforce subpart Cb, as it 
applies to existing large MWC units with individual capacity to combust 
more than 250 tpd of municipal solid waste.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
relevant adverse comments. 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 State Plan 
should relevant adverse comments be filed. This rule will be effective 
October 5, 1998 without further notice unless the Agency receives 
relevant adverse comments by September 3, 1998.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on

[[Page 41429]]

this rule. Only parties interested in commenting on this rule should do 
so at this time. If no such comments are received, the public is 
advised that this rule will be effective on October 5, 1998 and no 
further action will be taken on the proposed rule.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State Plan. Each request for revision to the State Plan 
shall be considered separately in light of specific technical, 
economic, and environmental factors and in relation to relevant 
statutory and regulatory requirements.

II. Administrative Requirements

Executive Order 12866

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

Executive Order 13045

    The final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and Safety Risks,'' because 
it is not an ``economically significant'' action under E.O. 12866.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because State Plan approvals under section 111 
of the Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal State Plan approval does not impose any new requirements, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities. Moreover, due to the nature of 
the Federal-State relationship under the Clean Air Act, preparation of 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning State Plans on such grounds. Union Electric Co., 
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

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 
annual costs to state, local, or tribal governments in the aggregate; 
or to 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 annual 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.

Submission to Congress and the General Accounting Office

    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 rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 5, 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, Air pollution control, Intergovernmental 
relations, Municipal waste combustors, Reporting and recordkeeping 
requirements.

    Dated: July 24, 1998.
William J. Muszynski,
Acting Regional Administrator, Region 2.

    Part 62, chapter I, title 40 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. 7401-7671q.

Subpart HH--New York

    2. Part 62 is amended by adding Sec. 62.8103 and an undesignated 
heading to subpart HH 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. 62.8103  Identification of plan

    (a) The New York State Department of Environmental Conservation 
submitted to the Environmental Protection Agency a ``State Plan for 
implementation and enforcement of 40 CFR part 60, subpart Cb, Emissions 
Guidelines for Large Municipal Waste Combustors'' on December 15, 1997 
and supplemented on June 22, 1998.
    (b) Identification of sources: The plan applies to existing 
facilities with a municipal waste combustor unit capacity greater than 
250 tons per day of municipal solid waste.

[FR Doc. 98-20771 Filed 8-3-98; 8:45 am]
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