[Federal Register Volume 64, Number 134 (Wednesday, July 14, 1999)]
[Rules and Regulations]
[Pages 37851-37855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17768]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[Docket # MA-068-7203a; FRL-6377-1]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Massachusetts; Plan for Controlling MWC
Emissions From Existing MWC Plants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The United States Environmental Protection Agency (EPA)
approves the sections 111(d)/129 State Plan submitted by the
Massachusetts Department of Environmental Protection on January 11,
1999. This State Plan is for implementing and enforcing provisions at
least as protective as the Emissions Guidelines (EG) applicable to
existing Municipal Waste Combustors (MWCs) units with capacity to
combust more than 250 tons/day of municipal solid waste (MSW). See 40
CFR part 60, subpart Cb.
DATES: This direct final rule is effective on September 13, 1999
without further notice unless EPA receives significant, material and
adverse comment by August 13, 1999. If EPA receives adverse comment by
the above date, we 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: You should address your written comments to: Mr. Gerald
Potamis, Chief, Air Permits Unit, Office of Ecosystem Protection, U.S.
EPA-New England, Region 1, One Congress Street, Suite 1100 (CAP),
Boston, Massachusetts 02114-2023.
Documents which EPA has incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW, Washington,
D.C. 20460. You may examine copies of materials the DEP submitted to
EPA relative to this action during normal business hours at the
following locations. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the day of the visit.
Environmental Protection Agency-New England, Region 1, Air Permits
Unit, Office of Ecosystem Protection, Suite 1100, One Congress Street,
Boston, Massachusetts 02114-2023.
Massachusetts Department of Environmental Protection, Bureau of
Waste Prevention, Division of Business Compliance, One Washington
Street, Boston, Massachusetts 02108, (617) 556-1120.
FOR FURTHER INFORMATION CONTACT: John Courcier at (617) 918-1659.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking today?
II. When did these requirements first become known?
III. When does the State Plan become effective?
IV. What happens to the Federal Plan after the effective date of the
State Plan?
V. Who must comply with the requirements?
VI. By what date must MWCs in Massachusetts achieve compliance?
VII. What pollutants must be controlled?
VIII. What emission controls are necessary to achieve compliance?
IX. What happens if an MWC does not/cannot meet the requirements by
the final compliance date?
X. What options are available to operators if they cannot achieve
compliance within one year of the effective date of the State Plan?
XI. What did the state submit as part of its State Plan?
XII. How did the state show that its plan is approvable?
XIII. Will these requirements force some plants to close?
XIV. When did EPA publish the rules?
XV. Why does EPA need to approve State Plans?
XVI. Administrative Requirements
I. What action is EPA taking today?
EPA is approving the above referenced State Plan. However, we
should note that by approving only the State Plan, EPA is taking no
action on the proposed SIP revisions the MADEP also submitted with its
State Plan. EPA will take action on these proposed SIP revisions and
publish its findings in a future Federal Register document.
EPA is publishing this approval action without prior proposal
because the Agency views this as a noncontroversial action and
anticipates no 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. If EPA receives no
significant, material, and adverse comments by August 13, 1999, this
action will be effective September 13, 1999.
If EPA receives significant, material, and adverse comments by the
above date, we will withdraw this action before the effective date by
publishing a subsequent document in the Federal Register that will
withdraw this final action. EPA will address all public
[[Page 37852]]
comments received in a subsequent final rule based on the parallel
proposed rule published in today's Federal Register. 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
EPA receives no comments, this action will be effective September 13,
1999.
EPA's approval of MADEP's State Plan is based on our findings that:
(1) MADEP provided adequate public notice of public hearings for
the proposed rule-making that allows Massachusetts to carry out and
enforce provisions that are at least as protective as the EG for large
MWCs, and
(2) MADEP 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.
II. When did these requirements first become known?
Some form of the EG was first published in the Federal Register in
1989. On December 19, 1995, according to sections 111 and 129 of the
Clean Air Act (Act), the EPA published the current form of the EG
applicable to existing MWCs. The EG are at 40 CFR part 60, subpart
Cb. See 60 FR 65387 and the Background section.
III. When Does the State Plan Become Effective?
This direct final rule is effective on September 13, 1999 without
further notice unless as explained under A. above, unless EPA receives
adverse comment by August 13, 1999.
IV. What Happens to the Federal Plan After the Effective Date of
the State Plan?
The Federal Plan is an interim action. On the effective date of
this action, the Federal Plan will no longer apply to MWC units covered
by the State Plan.
V. Who Must Comply With the Requirements?
The State Plan affects all MWCs:
1. With a combustion capacity greater than 250 tons per day of
municipal solid waste (large MWC units), and
2. Which commenced construction on or before September 20, 1994
(existing MWC units).
MADEP submitted its Plan after the Court of Appeals vacated 40 CFR
part 60, subpart Cb as it applies to small MWC units. Thus, the
Massachusetts State Plan covers only large, existing MWC units. Small
units are not subject to the requirements of subpart Cb and not subject
to this approval.
VI. By What Date Must MWCs in Massachusetts Achieve Compliance?
All existing large MWC units in the state of Massachusetts must
comply with these requirements by December 19, 2000.
VII. What Pollutants Must Be Controlled?
Subpart Cb regulates the following pollutants: particulate matter,
opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon
monoxide, lead, cadmium, mercury, and dioxin and dibenzofurans.
VIII. What Emission Controls Are Necessary to Achieve Compliance?
The basis for control of each pollutant is as follows:
a. for PM, opacity, Cd, Pb, and Hg...... GCP and SD/ESP/CI, or GCP and
SD/FF/CI;
b. for dioxin/furan..................... GCP and SD/ESP, or GCP and SD/
FF;
c. for SO2 and HCl...................... GCP and SD/ESP, or GCP and SD/
FF;
d. for NOX.............................. SNCR.
GCP--good combustion practice.
SD--spray dryer.
ESP--electrostatic precipitator.
FF--fabric filter.
CI--carbon injection.
SNCR--selective noncatalytic reduction.
IX. What Happens If An MWC Does Not/Cannot Meet the Requirements By
the Final Compliance Date?
Any existing large MWC unit that fails to meet the requirements by
December 19, 2000 must shut down. The unit will not be allowed to start
up until the owner/operator installs the controls necessary to meet the
requirements.
X. What Options Are Available to Operators If They Cannot Achieve
Compliance Within One Year of the Effective Date of the State Plan?
If an MWC cannot achieve compliance within one year of the
effective date of the State Plan, the operator must agree to meet
certain increments of progress until they achieve compliance. The State
Rule details the increments of progress for the affected MWCs.
XI. What Did the State Submit as Part of its State Plan?
The MADEP submitted to EPA on January 11, 1999 the following
sections 111(d)/129 State Plan components for carrying out and
enforcing the emission guidelines for existing MWCs in the State: Legal
Authority; Emission Standards and Limitations; Compliance Schedule; MWC
Emissions and MWC Plant/Unit Inventories; Procedures for Testing and
Monitoring Sources of Air Pollutants; Source Surveillance, Compliance
Assurance and Enforcement; Demonstration That the Public Had Adequate
Notice and Opportunity to Submit Written Comments and Public Hearing
Summary; and applicable State regulations (MADEP regulations 310 CMR
7.08(2)).
The State Plan excludes the ``Material Separation Plan'' provisions
and definition that are included in its regulation (310 CMR
7.08(2)(f)(7)). EPA may approve the plan without such provisions, since
the material separation plan provisions are not required by the
Emission Guidelines. Consequently, these provisions are not necessary
to make the plan at least as protective as the Emission Guidelines. The
State Plan also excludes the site assignment provisions of its
regulations (310 CMR 7.08(2)(a)).
XII. How Did the State Show That Its Plan Is Approvable?
In appendix A of Massachusetts' Plan, MADEP cites the following in
support of its demonstration of legal authority: Commonwealth of
Massachusetts Attorney General's Demonstration of the Legal Authority
to carry out the requirements of sections 111(d) and 129 of the Clean
Air Act and to enforce the MWC New Source Performance Standards and
Emissions Guidelines.
In appendix B of the State Plan, MADEP cites all emission standards
and limitations for the major pollutant categories related to the
designated sites and facilities. These standards are in MADEP's Air
Pollution Control Regulations 310 CMR 7.08(2) for Municipal Waste
Combustors. On the basis of the Attorney General's Opinion and
Demonstration and the statutes of the Commonwealth of Massachusetts,
EPA approved these standards and limitations under 310 CMR 7.08(2) as
being at least as protective as the Federal requirements contained in
subpart Cb for existing large MWC units.
In its State Plan and section 7.08(2) MWC Regulations, MADEP
established a compliance schedule and legally enforceable increments of
progress for each large MWC. EPA has reviewed and approved this portion
of the State Plan as being at least as protective as Federal
requirements for existing large MWC units.
On pages 4-7 of Massachusetts' Plan, MADEP submitted an emissions
[[Page 37853]]
inventory of all designated pollutants for each of its six large MWCs.
EPA reviewed and approved this portion of the Plan as meeting the
Federal requirements for existing large MWC units.
On page 9, Massachusetts' Plan describes 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 necessary to enable the State to judge the
compliance status of the affected facilities. MADEP also cites its
legal authority to provide periodic inspection and testing and
provisions for making reports of MWC emissions data, correlated with
applicable emission standards, available to the general public. MADEP
incorporated by reference into 310 CMR 7.08(2) the testing, monitoring,
reporting and recordkeeping requirements under 40 CFR part 60. EPA
reviewed and approved all of these State rules as being at least as
protective as the Federal requirements for existing large MWC units.
As stated on page 9 of the State Plan, Massachusetts is committed
to provide annual progress reports of Plan implementation. These
progress reports will include the required items according to 40 CFR
51.323 through 51.326 and 40 CFR part 60, subpart B and appendix D. EPA
reviewed and approved this portion of the Plan as meeting the minimum
Federal requirement for State Plan reporting.
XIII. Will These Requirements Force Some Plants to Close?
EPA has not been notified of any further plant closures. It may be
that an older plant may decide to close rather than pay the cost for
bringing the plant into compliance with the regulations.
XIV. When Did EPA Publish the Rules?
On December 19, 1995, according to sections 111 and 129 of the
Clean Air Act (Act), EPA issued new source performance standards (NSPS)
applicable to new MWCs and emissions 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: particulate matter, opacity, sulfur dioxide, hydrogen
chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury,
and dioxin 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 its 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).
XV. Why Does EPA Need To Approve State Plans?
Under section 129 of the Act, emission guidelines are not federally
enforceable. Section 129(b)(2) of the Act requires states to submit
State Plans to EPA for approval. Each state must show that its State
Plan will carry out and enforce the emission guidelines. State Plans
must be at least as protective as the emission guidelines, and they
become federally enforceable upon EPA's approval.
The procedures for adopting and submitting State Plans are in 40
CFR part 60, subpart B. EPA originally issued 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.
XVI. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
To reduce the burden of Federal regulations on States and small
governments, the President issued E.O. 12875 on October 26, 1993,
entitled ``Enhancing the Intergovernmental Partnership.'' Under E.O.
12875, EPA is required to consult with representatives of affected
State, local, and tribal governments, and keep these affected parties
informed about the content and effect of the promulgated standards and
emission guidelines.
In developing the MWC emission guidelines and standards, EPA
consulted with affected State, local, and tribal governments, and kept
those parties informed about the MWC standards and guidelines. EPA
prepared a written statement pursuant to E.O. 12875 which it published
in the 1995 promulgation notice (see 60 FR 65412 to 65413). The EPA has
determined that this State Plan does not include any new Federal
mandates or additional Federal requirements beyond those previously
considered during promulgation of the 1995 MWC guidelines. Therefore,
E.O. 12875 does not require further consultation or information. To the
extent that the State Plan contains requirements that differ from, but
that are at least as protective as, the Federal MWC guidelines, EPA
notes that it has consulted with State government representatives
during the State's development of the Plan, and that affected local and
tribal governments have been provided with information and afforded
opportunities to comment through Massachusetts' public hearing and
comment procedures.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks
that EPA has reason to believe may have a disproportionate effect on
children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
[[Page 37854]]
of their concerns, and a statement supporting the need to issue the
regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's action does not create any new requirements on any entity
affected by this State Plan. Thus, the action will not significantly or
uniquely affect the communities of Indian tribal governments.
Accordingly, the requirements of section 3(b) of E.O. 13084 do not
apply to this rule.
E. 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.
State Plan approvals under section 111(d) and section 129(b)(2) of
the Clean Air Act do not create any new requirements on any entity
affected by this rule, including small entities. They simply approve
requirements that the state is already imposing. Furthermore, in
developing the MWC emission guidelines and standards, EPA prepared a
written statement pursuant to the Regulatory Flexibility Act which it
published in the 1995 promulgation notice (see 60 FR 65413). In
accordance with EPA's determination in issuing the 1995 MWC emission
guidelines, this State Plan does not include any new requirements that
will have a significant economic impact on a substantial number of
small entities. Therefore, because the Federal 111(d) Plan approval
does not impose any new requirements and pursuant to section 605(b) of
the Regulatory Flexibility Act, the Regional Administrator certifies
that this rule will not have a significant impact on a substantial
number of small entities.
F. 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 on by the rule.
In developing the MWC emission guidelines and standards, EPA
prepared a written statement pursuant to section 202 of the Unfunded
Mandates Act which it published in the 1995 promulgation notice (see 60
FR 65405 to 65412). The EPA has determined that this State Plan does
not include any new Federal mandates above those previously considered
during promulgation of the 1995 MWC guidelines. The State Plan does
include an emission limitation for mercury that will be more stringent
than the limit required by the EG. However, that limit is not the
result of a Federal mandate. In approving the State Plan, EPA is
approving pre-existing requirements under State law and imposing no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from EPA's
approval of State Plan provisions that may be more stringent than the
EG requirements, nor will EPA's approval of the State Plan
significantly or uniquely affect small governments. Thus, this action
is not subject to the requirements of sections 202, 203, 204, and 205
of the Unfunded Mandates Act.
G. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A), as amended 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).
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
In approving or disapproving state plans under section 129 of the
Clean Air Act, EPA does not have the authority to revise or rewrite the
State's rule, so the Agency does not have authority to require the use
of particular voluntary consensus standards. Accordingly, EPA has not
sought to identify or require the State to use voluntary consensus
standards. Furthermore, Massachusetts' Plan incorporates by reference
test methods and sampling procedures for existing MWC units already
established by the emissions guidelines for MWCs at 40 CFR part 60,
subpart Cb, and does not establish new technical standards for MWCs.
Therefore, the requirements of the NTTAA are not applicable to this
final rule.
I. 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 September 13, 1999. 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), 42
U.S.C. 7607(b)(2)). EPA encourages interested parties to comment in
response to the proposed rule rather than petition for judicial review,
unless the objection arises after the comment period allowed for in the
proposal.
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.
[[Page 37855]]
Dated: July 3, 1999.
John P. DeVillars,
Regional Administrator, Region 1.
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 W--Massachusetts
2. Part 62 is amended by adding a new Sec. 62.5340 and a new
undesignated center heading to Subpart W to read as follows:
Plan for the Control of Designated Pollutants From Existing
Facilities (Section 111(d) Plan)
Sec. 62.5340 Identification of Plan.
(a) Identification of Plan. Massachusetts Plan for the Control of
Designated Pollutants from Existing Plants (Section 111(d) Plan).
(b) The plan was officially submitted as follows:
(1) Control of metals, acid gases, organic compounds and nitrogen
oxide emissions from existing municipal waste combustors, submitted on
January 11, 1999. The Plan does not include: the site assignment
provisions of 310 CMR 7.08(2)(a); the definition of ``materials
separation plan'' at 310 CMR 7.08(2)(c); and the materials separation
plan provisions at 310 CMR 7.08(2)(f)(7).
(c) Designated facilities. The plan applies to existing sources in
the following categories of sources:
(1) Municipal waste combustors.
3. Part 62 is amended by adding a new Sec. 62.5425 and a new
undesignated center heading to Subpart W 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. 62.5425 Identification of sources.
(a) The plan applies to the following existing municipal waste
combustor facilities:
(1) Fall River Municipal Incinerator in Fall River.
(2) Ogden Martin-Haverhill MWC in Haverhill.
(3) SEMASS RRF in Rochester.
(4) Wheelabrator Millbury Inc. in Millbury.
(5) Saugus RESCO in Saugus.
(6) NESWC MWC in North Andover.
[FR Doc. 99-17768 Filed 7-13-99; 8:45 am]
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