[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Rules and Regulations]
[Pages 59887-59890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29654]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[OK-15-1-7399a: FRL-6183-5]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Oklahoma
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving the State Plan submitted by the State of
Oklahoma on July 10, 1998. The plan was developed in accordance with
sections 111 and 129 of the Clean Air Act, and provides for
implementation and enforcement of 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 5, 1999 without
further notice, unless EPA receives adverse comment by December 7,
1998. If adverse comments are received, EPA will publish a timely
withdrawal of the
[[Page 59888]]
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Written comments should be addressed to: Mr. Thomas H.
Diggs, Chief, Air Planning Section, EPA Region 6, 1445 Ross Avenue,
Suite 1200, Dallas, TX 75202. Copies of documents relative to this
action are available for public inspection 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 visiting day.
Air Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 6, Air Planning Section,
1445 Ross Avenue, Suite 1200, Dallas, TX 75202, telephone (214) 665-
7214.
Oklahoma Department of Environmental Quality, 707 North Robinson,
Oklahoma City, OK 73101-1677, telephone (405) 702-4100.
FOR FURTHER INFORMATION CONTACT:
Lt. Mick Cote, Air Planning Section, 1445 Ross Avenue, Suite 1200,
Dallas, TX 75202, telephone (214) 665-7219.
SUPPLEMENTARY INFORMATION:
I. Background
On December 19, 1995, pursuant to sections 111 and 129 of the Clean
Air Act (the 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 Eb and Cb apply only to MWC units with individual
capacity to combust more than 250 tons per day of MSW (large MWC
units).
Under section 129 of the Act, EG are not Federally enforceable.
Section 129(b)(2) of the Act requires states to submit to EPA for
approval, 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. The EPA originally
promulgated the subpart B provisions on November 17, 1975. The 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 plan submitted by Oklahoma to implement
and enforce subpart Cb, as it applies to large MWC units.
II. Discussion
Oklahoma submitted to EPA on July 10, 1998, the following in their
111(d)/129 State Plan for implementation and enforcement of the EG for
existing MWCs under their direct jurisdiction in the State of Oklahoma
pursuant to 40 CFR 60.23 through 60.26: Demonstration of Legal
Authority; Enforceable Mechanism; Inventory of MWC Plants/Units; MWC
Emissions Inventory; Emission Limits; Compliance Schedule; Testing,
Monitoring, Recordkeeping and Reporting Requirements; Demonstration
that the Public had Adequate Notice and Opportunity to Submit Written
Comments; Provisions for Submittal of Progress Reports to EPA; and
applicable State of Oklahoma statutes. Oklahoma submitted its State
Plan after the Court of Appeals vacated subpart Cb as it applies to
small MWC units. Thus, the Oklahoma State Plan covers only large MWC
units.
One MWC facility exists in Oklahoma with units affected by the MWC
EG. This facility is owned by the City of Tulsa, and operated by Ogden-
Martin Systems of Tulsa, Incorporated. The Facility has three MWC
units, each with the capacity to burn more than 250 tons per day of
municipal solid waste.
The approval of the Oklahoma State Plan is based on finding that:
(1) The Oklahoma Department of Environmental Quality (ODEQ) provided
adequate public notice of public hearings for the proposed rulemaking
and State Plan which allow the ODEQ to implement and enforce the EG for
large MWCs, and (2) the ODEQ 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. Please see the Region & Evaluation Report and the State Plan
submittal, as enclosed in the official file, for the detailed technical
evaluation of the Oklahoma State Plan.
III. Final Action
The EPA is approving the above referenced State Plan because it
meets the Agency requirements. The EPA is publishing this rule without
prior proposal because the Agency views this as a noncontroversial
amendment and anticipates no adverse comments. However, in the proposed
section of this Federal Register publication, the 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 January 5, 1999 without further notice unless, by December 7,
1998, relevant adverse comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the proposed action. The
EPA will not institute a second comment period. 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 5, 1999.
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.
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,
[[Page 59889]]
unless the Federal Government provides the funds necessary to pay the
direct compliance costs incurred by those governments. If the mandate
is unfunded, EPA must 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 the mandate is unfunded,
EPA must provide 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,
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 rule
does 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
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 Clean Air 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 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 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 mostly 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.
The 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. The 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. A major rule cannot
take effect until 60 days after it is published 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 December 7, 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, Municipal waste
combustors, Reporting and recordkeeping requirements.
[[Page 59890]]
Dated: October 28, 1998.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.
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. 7401-7671q.
Subpart LL--Oklahoma
2. Section 62.9100 is amended by adding paragraphs (b)(3) and
(c)(3) as follows:
Sec. 62.9100 Identification of plan.
* * * * *
(b) * * *
(3) Oklahoma State Plan for Existing Large Municipal Waste
Combustors, submitted on July 10, 1998, by the Oklahoma Department of
Environmental Quality.
(c) * * *
(3) Existing municipal waste combustors.
3. Subpart LL is amended by adding a new Sec. 62.9150 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. 62.9150 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 site: Ogden-Martin
Systems of Tulsa, Incorporated, 2122 South Yukon Avenue, Tulsa, OK
74107.
[FR Doc. 98-29654 Filed 11-5-98; 8:45 am]
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