[Federal Register Volume 63, Number 222 (Wednesday, November 18, 1998)]
[Rules and Regulations]
[Pages 63988-63990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30602]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[AL-048-1-9901a; FRL-6188-9]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Alabama
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The United States Environmental Protection Agency (EPA) is
approving the sections 111(d)/129 State Plan submitted by the Alabama
Department of Environmental Management (ADEM) for the State of Alabama
on September 11, 1998, for implementing and enforcing the Emissions
Guidelines (EG) applicable to existing Municipal Waste Combustors
(MWCs) with capacity to combust more than 250 tons per day of municipal
solid waste (MSW). See 40 CFR part 60, subpart Cb.
DATES: This direct final rule is effective January 19, 1999 without
further notice, unless EPA receives adverse comments by December 18,
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: Kimberly Bingham, EPA
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 the Alabama Department of Environmental Management, Air Division,
1751 Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.
FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038 or
Scott Davis at (404) 562-9127.
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
per 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 Cb and Eb apply only to MWC units with individual
capacity to combust more than 250 tons per day of MSW (large MWC
units).
Section 129(b)(2) of the Act requires States to submit to EPA for
approval State Plans that implement and enforce the EG. 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 ADEM for the State
of Alabama to implement and enforce subpart Cb, as it applies to large
MWC units only.
II. Discussion
ADEM submitted to EPA on September 11, 1998, the following in their
111(d)/129 State Plan for implementing and enforcing the EG for
existing MWCs under their direct jurisdiction in the State of Alabama:
Public Participation Demonstration That the Public Had Adequate Notice
and Opportunity to Submit Written Comments and Attend the Public
Hearing; Legal Authority; Emission Limits and Standards; Compliance
Schedule; Inventory of MWC Plant/Units; MWC Emissions Inventory; Source
Surveillance, Compliance Assurance, and Enforcement Procedures;
Submittal of Progress Reports to EPA; Federally Enforceable State
Operating Permit (FESOP) for the Solid Waste Disposal Authority of the
City of Huntsville MWC facility; and applicable State of Alabama
statutes and rules of the ADEM. ADEM submitted its Plan after the Court
of Appeals vacated subpart Cb as it applies to small MWC units. Thus,
the Alabama State Plan covers only large MWC units. As a result of the
Davis decision and subsequent vacatur order, there are no EG
promulgated under sections 111 and 129 that apply to small MWC units.
Accordingly, EPA's review and approval of the Alabama State Plan for
MWCs addresses only those parts of the Alabama State 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
EG 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 the Alabama State Plan is based on finding that:
(1) ADEM provided adequate public notice of public hearings for the
proposed plan and FESOP which allow ADEM to implement and enforce the
EG for large MWCs, and (2) ADEM also demonstrated legal authority to
adopt emission standards and compliance schedules applicable to the
designated facility; 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 part F and attachment C of the Plan, ADEM cites the following
references for the legal authority: Opinion of the Region 4
Administrator in response to the Governor of the State of Alabama; The
Alabama Environmental Management Act, section 22-22A, Code of Alabama
1975, as amended; The Alabama Air Pollution Control Act, section 22-28,
Code of Alabama 1975, as amended; The ADEM Administrative Code, Rule
335-3-1-.04. These statutes and regulations are contained in appendix
C. On the basis of these statutes and rules of the State of Alabama,
the State Plan and FESOP are approved as being at least as
[[Page 63989]]
protective as the Federal requirements for existing large MWC units.
ADEM cites all emission standards and limitations for the major
pollutant categories as conditions in the FESOP for the City of
Huntsville MWC, the only designated facility in the State of Alabama
subject to these standards and limitations (in appendix B of the Plan).
These standards and limitations in the FESOP have been approved as
being at least as protective as the Federal requirements contained in
subpart Cb for existing large MWC units.
ADEM submitted the compliance schedule for the City of Huntsville
MWC, the only large MWC under their direct jurisdiction in the State of
Alabama. Part G of the Plan and the FESOP contain conditions consistent
with 40 CFR part 60, subparts B and Cb, specifications for compliance
schedules. This portion of the Plan and FESOP have been reviewed and
approved as being at least as protective as Federal requirements for
existing large MWC units.
In part G of the Plan, ADEM submitted an emissions inventory of all
designated pollutants for the City of Huntsville MWC, the only large
MWC under their direct jurisdiction in the State of Alabama. This
portion of the Plan has been reviewed and approved as meeting the
Federal requirements for existing large MWC units.
ADEM includes its legal authority to require owners and operators
of designated facilities to maintain records and report to their Agency
the nature and amount of emissions and any other information that may
be necessary to enable their Agency to judge the compliance status of
the facilities in part G of the State Plan and as conditions in the
FESOP for the City of Huntsville MWC. In part G, the ADEM 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. Part G
of the State Plan outlines the authority to meet the requirements of
monitoring, recordkeeping, reporting, and compliance assurance. These
referenced State of Alabama rules are contained in appendix C of the
Plan. This portion of the Plan and FESOP have been reviewed and
approved as being at least as protective as the Federal requirements
for existing large MWC units.
As stated in part G of the Plan, ADEM will provide progress reports
of Plan implementation updates to the EPA on an annual basis. These
progress reports will include the required items pursuant to 40 CFR
part 60, subpart B. This portion of the Plan has been reviewed and
approved as meeting the Federal requirement for State Plan reporting.
This action approves the State Plan submitted by ADEM for the State
of Alabama to implement and enforce subpart Cb, as it applies to large
MWC units only.
III. Final Action
This action approves the State Plan submitted by ADEM for the State
of Alabama to implement and enforce Subpart Cb, as it applies to large
MWC units only. The EPA is publishing this rule without prior proposal
because the Agency views this as a noncontroversial submittal 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 SIP revision
should adverse comments be filed. This rule will be effective January
19, 1999 without further notice unless the Agency receives adverse
comments by December 18, 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. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on January 19, 1999 and no
further action will be taken on the proposed rule.
IV. 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
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. 12875 requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
state, local, and tribal governments, the nature of their concerns,
copies of written communications from the governments, and a statement
supporting the need to issue the regulation. In addition, E.O. 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
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.
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 EPA complies by
consulting, E.O. 13084 requires EPA to 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 of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful
[[Page 63990]]
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. 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 SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create 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 SIPs on such
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
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
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.
G. Submission to Congress and the Comptroller General
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).
H. 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 19, 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).)
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: November 4, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
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 B--Alabama
2. Part 62.100 is amended by adding paragraphs (b)(4) and (c)(4) to
read as follows:
Sec. 62.100 Identification of plan.
* * * * *
(b) * * *
(4) State of Alabama Plan for Implementation of 40 CFR part 60,
Subpart Cb, For Existing Municipal Waste Combustors, submitted on
September 11, 1998, by the Alabama Department of Environmental
Management.
(c) * * *
(4) Existing municipal waste combustors.
3. Subpart B is amended by adding a new Sec. 62.104 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. 62.104 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) at the following MWC sites:
(a) Solid Waste Disposal Authority of the City of Huntsville MWC,
Huntsville, Alabama.
(b) [Reserved]
[FR Doc. 98-30602 Filed 11-17-98; 8:45 am]
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