[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Rules and Regulations]
[Pages 6234-6237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2983]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[Region 2 Docket No. NY30-188b, FRL-6231-7]
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 taking direct
final action on revisions to 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 revisions concern the
implementation and enforcement of the Emissions Guidelines, as amended
by EPA on August 25, 1997, applicable to existing large MWC units with
individual capacity to combust more than 250 tons per day of municipal
solid waste. We are approving the State Plan which imposes revised
emission limits for four pollutants (hydrogen chloride, sulfur dioxide,
nitrogen oxides and lead) and compliance schedules for the existing
MWC's in New York which will reduce the designated pollutants.
DATES: This rule is effective on April 12, 1999 without further notice,
unless EPA receives adverse comment by March 11, 1999. If EPA receives
such comment, EPA will publish a timely withdrawal in the Federal
Register informing the public that this 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.
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 J. 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:
A. 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
[[Page 6235]]
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). On August 25, 1997, EPA
published changes to the emission guidelines to address the court
decision (65 FR 45116). The amendments affect the applicability of the
guidelines and standards, and add supplemental emission limits for four
pollutants (hydrogen chloride, sulfur dioxide, nitrogen oxides, and
lead) to the guidelines. Compliance with the supplemental emission
limits is required by August 25, 2002 or three years after approval of
a revised state plan incorporating these amendments, whichever is
first. The amendments went into effect on October 24, 1997 and state
plans incorporating those changes were due on August 25, 1998.
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 revised State Plan submitted by New York to implement and
enforce subpart Cb, as amended by EPA on August 25, 1997, applicable to
existing large MWC units with individual capacity to combust more than
250 tpd of municipal solid waste.
B. State Submittal
On December 15, 1997, and supplemented on June 22, 1998, 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. 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. EPA approved New York's submittal on August 4, 1998 (63 FR
41427).
On October 7, 1998, NYSDEC submitted to EPA, revisions to New
York's State Plan for existing large MWC's. This submittal was
supplemented by the NYSDEC on November 5, 1998. New York's submittal as
supplemented includes only those required state plan elements that
needed to be revised to address EPA's August 25, 1997 amendments. These
include: enforceable mechanisms; enforceable compliance schedules; and
record of public hearing, all other elements remain as approved by EPA
on August 4, 1998 (63 FR 41427).
C. 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
October 1, 1998. 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.
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.
D. Conclusion
EPA has evaluated the revised 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 revised State Plan to implement
and enforce subpart Cb, as amended by EPA on August 25, 1997,
applicable to existing large MWC units with individual capacity to
combust more than 250 tpd of municipal solid waste.
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 State Plan revision
should adverse comments be filed. This rule will be effective April 12,
1999 without further notice unless the Agency receives adverse comments
by March 11, 1999.
If the EPA receives adverse comments, then EPA will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
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.
E. Administrative Requirements
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.''
[[Page 6236]]
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 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.
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.
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, Executive Order 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 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.
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 April 12, 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
[[Page 6237]]
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: January 28, 1999.
William J. Muszynski,
Deputy 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. 7401-7642.
Subpart HH--New York
2. Part 62 is amended by adding Sec. 62.8103(c)
Sec. 62.8103 Identification of plan
* * * * *
(c) On October 7, 1998 and supplemented on November 5, 1998, the
New York State Department of Environmental Conservation submitted
revisions to the State Plan which incorporates emission limits and
compliance schedules as amended by EPA on August 25, 1997 (65 FR
45116).
[FR Doc. 99-2983 Filed 2-8-99; 8:45 am]
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