[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Rules and Regulations]
[Pages 68394-68397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32986]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[Docket# ME-057-01-7006a; FRL-6201-1]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: Maine; 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 Maine
Department of Environmental Protection on April 15, 1998, for
implementing and enforcing 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 February 9, 1999 without
further notice unless EPA receives adverse comment by January 11, 1999.
If adverse comment is received by the above date, 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: Written comments should be addressed to: John Courcier,
Office of Ecosystem Protection (CAP), U.S. EPA-New England, Region 1,
JFK Federal Building, Boston, Massachusetts 02203-2211.
Documents which are 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,
DC 20460. Copies of materials submitted to EPA relative to this action
may be examined 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, 11th floor, One Congress Street,
Boston, Massachusetts 02203.
Maine Department of Environmental Protection, Bureau of Air
Quality, Ray Building, Hospital Street, Augusta, Maine 04333.
FOR FURTHER INFORMATION CONTACT: John Courcier at (617) 565-9462.
SUPPLEMENTARY INFORMATION:
I. Background
On December 19, 1995, pursuant to sections 111 and 129 of the Clean
Air Act (Act), the 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 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).
Under section 129 of the Act, emission guidelines are not federally
enforceable. Section 129(b)(2) of the Act requires States to submit to
the 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 Maine to
implement and enforce subpart Cb, as it applies to large MWC units
only.
II. Discussion
The Maine Department of Environmental Protection (DEP) submitted to
EPA on April 15, 1998 the following sections 111(d)/129 State Plan
components for implementing 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 (DEP regulations Chapter 121). DEP submitted its Plan
after the Court of Appeals vacated subpart Cb as it applies to small
MWC units. Thus, the Maine State Plan covers only large MWC units.
Small units are not subject to the requirements of subpart Cb and not
subject to this approval.
The approval of DEP's State Plan is based on EPA's finding that:
(1) DEP provided adequate public notice of public hearings for the
proposed rulemaking which allows Maine to implement and enforce
provisions that are at least as protective as the EG for large MWCs,
and (2) DEP 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 record keeping; conduct
inspections and tests; require the use of monitors; require emission
reports of owners and operators; and make emission data publicly
available.
In section 1.1 and appendix D of Maine's Plan, the DEP cites the
following in support of its demonstration of legal authority: State of
Maine Attorney General's Demonstration of the Legal Authority to
Implement and Enforce MWC NSPS and Emissions Guidelines; Attorney
General's Legal Opinion to Operate the Title V Operating Permit
Program; 38 MRSA section 344; 38 MRSA section 585, Establishment of
Emission Standards; 38 MRSA section 585-B, Hazardous Air Pollutant
Standards; 38 MRSA section 590, Licensing. In
[[Page 68395]]
appendix A of the State Plan, DEP cites all emission standards and
limitations for the major pollutant categories related to the
designated sites and facilities. These standards are in DEP's Air
Bureau Regulations Chapter 121, Emission Limitation and Emission
Testing of Resource Recovery Facilities. On the basis of the Attorney
General's Opinion and Demonstration, the statutes, and the rules of the
State of Maine, these standards and limitations under Chapter 121 are
approved as being at least as protective as the Federal requirements
contained in subpart Cb for existing large MWC units.
In its State Plan and Chapter 121 MWC Regulations, DEP established
a compliance schedule and legally enforceable increments of progress
for each large MWC. This portion of the State Plan and Rule has been
reviewed and approved as being at least as protective as Federal
requirements for existing large MWC units.
In section 1.4 of Maine's Plan, the DEP submitted an emissions
inventory of all designated pollutants for each of its three large
MWCs. This portion of the Plan has been reviewed and approved as
meeting the Federal requirements for existing large MWC units.
In section 1.7, Maine's 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 that may be necessary to enable the State to
judge the compliance status of the affected facilities in section 1.3
of the Plan. Maine 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. Maine incorporated by reference into
Chapter 121 the testing, monitoring, reporting and record keeping
requirements under 40 CFR part 60. All of these State rules have been
reviewed and approved as being at least as protective as the Federal
requirements for existing large MWC units.
As stated in section 1.9 of the State Plan, Maine is committed to
provide annual progress reports of Plan implementation. These progress
reports will include the required items pursuant to 40 CFR part 60,
subpart B and appendix D. This portion of the Plan has been reviewed
and approved as meeting the minimum Federal requirement for State Plan
reporting.
Final Action
EPA is approving the above referenced State Plan. EPA is publishing
this 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 no
significant, material, and adverse comments are received by January 11,
1999, this action will be effective February 9, 1999.
If the EPA receives significant, material, and adverse comments by
the above date, this action will be withdrawn before the effective date
by publishing a subsequent document in the Federal Register that will
withdraw this final action. All public comments received will be
addressed in a subsequent final rule based on the parallel proposed
rule published in today's Federal Register. 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 February 9, 1999.
III. 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 Maine's 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
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
[[Page 68396]]
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 in some circumstances
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, Maine's 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 February 11, 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.
Dated: November 24, 1998.
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:
[[Page 68397]]
Authority: 42 U.S.C. 7401-7642.
Subpart U--Maine
2. Part 62.4845 is amended by adding paragraphs (b)(4) and (c)(3)
to read as follows:
Sec. 62.4845 Identification of plan.
* * * * *
(b) * * *
(4) Control of metals, acid gases, organic compounds and nitrogen
oxide emissions from existing municipal waste combustors, submitted on
April 15, 1998.
(c) * * *
(3) Existing municipal waste combustors.
3. Part 62 is amended by adding a new Sec. 62.4975 and a new
undesignated center heading to Subpart U 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. 62.4975 Identification of sources.
The plan applies to the following existing municipal waste
combustor facilities:
(a) Penobscot Energy Recovery Company, Orrington, Maine.
(b) Maine Energy Recovery Company, Biddeford, Maine.
(c) Regional Waste Systems, Inc., Portland, Maine.
[FR Doc. 98-32986 Filed 12-10-98; 8:45 am]
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