[Federal Register Volume 63, Number 155 (Wednesday, August 12, 1998)]
[Rules and Regulations]
[Pages 43080-43083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21678]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[MN59-01-7284a; FRL-6139-2]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants; Minnesota; Municipal Waste Combustor State
Plan Submittal
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
Minnesota State Plan submittal for implementing the Municipal Waste
Combustor (MWC) Emission Guidelines. The State's plan was submitted to
EPA on April 28, 1998. This submittal was made to satisfy the
requirement of the 1990 Clean Air Act (CAA) that all MWCs with the
capacity to combust greater than 250 tons per day (tpd) of Municipal
Solid Waste (MSW) adopt the emission standards as published in the
Federal Register on December 19, 1995 and in a subsequent Federal
Register on August 27, 1997. The State's submittal was made in
accordance with the requirements for adoption and submittal of State
Plans for designated facilities in 40 CFR part 60, subpart B. The EPA
finds that Minnesota's Plan for existing MWCs adequately addresses all
of the Federal requirements applicable to such plans. If adverse
comments are received on this action, the EPA will withdraw this final
rule and address the comments received in response to this action in a
final rule on the related proposed rule, which is being published in
the proposed rules section of this Federal Register. A second public
comment period will not be held. Parties interested in commenting on
this action should do so at this time. This approval makes the State's
plan federally enforceable.
DATES: The ``direct final'' is effective on October 13, 1998, unless
EPA receives adverse or critical comments by September 11, 1998. If
adverse comment is received, EPA will publish a timely withdrawal and
inform the public that the rule will not take effect.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the State Plan submittal and EPA's analysis are available
for inspection at the U.S. Environmental Protection Agency, Region 5,
Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604. (Please telephone Douglas Aburano at (312) 353-6960
before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental
Engineer, Regulation Development Section, Air Programs Branch (AR-18J),
U.S. EPA, Region 5, Chicago, Illinois 60604, (312) 353-6960.
SUPPLEMENTARY INFORMATION:
I. Background
On December 19, 1995 (60 FR 65382), the EPA adopted Emission
Guidelines (EG) for existing MWC sources and New Source Performance
Standards for new sources. The EG was amended on August 25, 1997 to
address the vacature of the portion of the EG that applied to MWCs that
combust between 40 and 250 tons of MSW per day. The Clean Air Act
requires that State regulatory agencies implement the EG according to a
State Plan developed under sections 111(d) and 129 of the CAA.
On April 28, 1998, the State of Minnesota, through the Minnesota
Pollution Control Agency (MPCA), submitted its ``Section 111(d) Plan
for Implementing the Large Municipal Waste Combustor Emission
Guidelines'' to satisfy the section 111(d) and section 129 requirements
for MWCs. The following provides a brief discussion of the requirements
for an approvable State Plan for existing large MWCs, as well as EPA's
review of Minnesota's submittal in regard to those requirements. More
detailed information on the requirements for an approvable plan and
Minnesota's submittal can be found in the Technical Support Document
(TSD) accompanying this notice, which is available upon request.
II. Evaluation of Minnesota's Large MWC Plan
The following is EPA's review of Minnesota's Sec. 111(d)/129 plan
for existing large MWCs against the requirements of 40 CFR part 60,
subpart B and subpart Cb:
A. Demonstration of Legal Authority
The State must submit a demonstration of the State's legal
authority to carry out the Sec. 111(d)/129 plan as submitted.
[[Page 43081]]
The MPCA submitted, as Attachment A to the Sec. 111(d)/129 plan, a
letter from Assistant Attorney General, Kathleen Winters, which
describes Minnesota's authority to carry out and enforce the plan. The
statutes cited in the letter were included as Attachment E to the
Sec. 111(d)/129 plan.
The EPA has reviewed the State's demonstration and determined that
the MPCA has the proper authority to adopt and implement the
Sec. 111(d)/129 plan in accordance with 40 CFR 60.26.
B. Criteria for an Adequate Enforceable Mechanism
In its submittal a State must identify the enforceable State
mechanisms selected by the State for implementing the EG. The MPCA has
chosen a combination of State rules, Title V permits, and
Administrative Orders as the enforceable mechanisms to implement the
MWC EG. The MPCA has adopted State rules as the cornerstone of their
State plan. The State rules contain the standards that will apply to
the large MWCs in the State. The State rules also contain the December
19, 2000 date by which all large MWCs must be in compliance with the
standards in the rules. Outside of the State rules are the individual
source compliance dates and increments of progress leading to final
compliance with the standards.
The EPA's guidance for implementing the MWC EG states that if a
mechanism different from a State rule is used to implement the EG, the
State must provide documentation on how the selected mechanisms will
ensure that the emission standards for the pollutants regulated by
Sec. 129, and attach a copy of the enforceable mechanism.
The MPCA has included, as Attachment B to its State Plan, a letter
addressing Minnesota's legal authority to use permits issued by the
MPCA (including Title V permits) as the legal enforceable mechanism to
implement the EG. The EPA has reviewed this letter and found that
Minnesota has the legal authority to use Title V permits and
Administrative Orders to implement the EG.
C. Source Inventory and Emission Inventory
An inventory of MWC plants/units in the State affected by the EG,
including MWC units that have ceased operation and are not partially or
totally dismantled, must be submitted. An inventory of emissions from
these MWC units in the State must also be submitted. Additionally, the
EG requires States to submit dioxin test data for those units with
compliance schedules that extend beyond one year later than approval of
the State Plan. The dioxin test data for those sources with schedules
longer than one year must be from tests conducted during or after 1990.
The MPCA has attached a list of the affected MWC facilities and
units that are regulated by the EG (see Sec. 111(d)/129 Plan Attachment
F). This attachment also contains the units' emission inventory. Most
data provided are actual emissions from the calendar year 1995. Where
actual emission data were not available, AP-42 emission factors were
used.
Of the four facilities that will be affected by the State Plan,
three have compliance schedules that will extend beyond one year of the
approval of the State Plan. The MPCA has included in the State Plan, as
Attachment G, the dioxin test data for all of these sources. The test
data submitted are from tests conducted after 1990.
D. Emission Limitations
The State Plan must include emission limitations for MWC units that
are at least as protective as those found in the EG.
The emission limits for the nine MWC pollutants described in
subpart Cb are found in Minn. R. 7011.1227 and 7011.1228. The emission
limits are expressed in dimensions identical to those found in the
Emission Guidelines except for particulate matter.
What the MPCA refers to as ``front half particulate matter'' is
what EPA terms ``particulate matter.'' Minnesota's front half
particulate matter standard is equivalent to EPA's particulate matter
standard.
In addition to emission limits for the nine pollutants regulated by
the EG, Sec. 111(d)/129 State Plans must also include MWC operating
practices (Sec. 60.34b(b)), operator training and certification
requirements (Sec. 60.35b), fugitive ash visible emission standards
(Sec. 60.36b), and air curtain incinerator opacity requirements
(Sec. 60.37b).
The requirements of Sec. 60.34(b) are fulfilled by Minn. R.
7011.1240, subp. 5; entitled ``Range of Operation'' and by Minn. R.
7011.1240, subp. 2, entitled, ``Particulate matter control device
operating temperature.''
The requirements of Sec. 60.35b allow a State to develop its own
operator and training certification program. The MPCA has developed its
own operator training and certification program and has submitted it as
part of the State Plan. This program is found in Minnesota Rules:
7011.1275 Personnel Training
7011.1280 Operator Certification
7011.1281 Full Operator Certification
7011.1282 Certified Municipal Waste Combustor Examiner Certificate
7011.1283 Duties of a Certified Municipal Waste Combustor Examiner
7011.1284 Fully Certified Operator
The requirements of Sec. 60.36b are fulfilled by Minn. R.
7011.1225, subp. 1(B).
The MPCA has made a negative declaration for air curtain
incinerators. This negative declaration obviates the need for the State
to set an opacity limit for these sources.
E. Testing, Monitoring, Recordkeeping and Reporting
The Sec. 111(d)/129 State Plan must include requirements for the
ongoing testing, monitoring, recordkeeping, and reporting provisions
from the EG. These include, in particular:
The performance testing methods listed in Sec. 60.58b of
Subpart Eb (40 CFR Part 60, Subpart Cb, Sec. 60.38b), and
The reporting and recordkeeping provisions listed in
Sec. 60.59b of Subpart Eb (40 CFR Part 60, Subpart Cb, Sec. 60.39b).
The performance testing requirements listed in Sec. 60.38b are met
by the following in Minnesota Rules:
7011.1260 Continuous Monitoring
7011.1265 Required Performance Tests, Methods, and Procedures
7011.1270 Performance Test, Waste Composition Study and Ash Sampling
Frequency
Recordkeeping and reporting requirements are found in Minn. R.
7011.1285: Operating Records and Reports.
F. Compliance Schedules
Units that will need to be retrofitted to meet the emission limits
in a State Plan, must submit compliance schedules. Retrofit schedules
can extend up to three years after the Sec. 111(d)/129 State Plan
approval, but no retrofit schedule can extend beyond December 19, 2000.
Units that commenced construction after June 26, 1987 must comply with
the dioxin/furan and mercury emission limits within one year of plan
approval or permit modification.
The Sec. 111(d)/129 State Plan must also specify legally
enforceable increments of progress toward compliance for MWC units that
have compliance or retrofit schedules that extend past one year beyond
approval of the Sec. 111(d)/129 State Plan.
All MWC units constructed after June 26, 1987 are currently
equipped with scrubbing systems and are allowed up to one year to
retrofit activated carbon injection for enhanced scrubber
[[Page 43082]]
performance in order to control mercury and dioxin. For other
pollutants, such as NOx and CO, the retrofit schedule can extend up to
three years after State Plan approval or December 19, 2000, whichever
is earlier.
Compliance schedules for MWC units with compliance dates that
extend more than one year beyond the date of State Plan approval must
include legally enforceable increments of progress toward compliance.
Each increment of progress must have an enforceable compliance date in
the Sec. 111(d)/129 State Plan.
The minimum five increments of progress required by Section
60.21(h) of Subpart B for each MWC unit within a state are as follows:
1. Submitting a final control plan.
2. Awarding contracts for control systems or process modifications
or orders for purchase of components;
3. Initiating on-site construction or installation of the air
pollution control device(s) or process changes;
4. Completing on-site construction or installation of control
equipment or process changes;
5. Final compliance.
Minn. R. 7011.1215 subp. 5, requires sources to submit compliance
plans that contain increments of progress. Minn. R. 7011.1215 subp. 5,
also requires that compliance with the standards shall be no later than
December 19, 2000. There are three facilities that will require
compliance schedules beyond one year after State Plan approval. The
enforceable increments of progress for these sources have been
submitted as Attachment C of the State Plan. The requirement that
sources constructed after June 26, 1987 are allowed up to one year to
retrofit activated carbon injection for enhanced scrubber performance
in order to control mercury and dioxin does not apply in Minnesota
because all of the large MWC units in that State commenced construction
prior to that date.
G. Public Hearings
As with State Implementation Plans for criteria pollutants, EPA
regulations in 40 CFR Part 60, subpart B, make it clear that citizen
input on Sec. 111(d)/129 State Plans is encouraged in order to help
define appropriate emission standards and retrofit schedules. Under
Subpart B, the minimum public participation requirements are as
follows:
1. Reasonable notice of opportunity for one or more public
hearing(s) at least 30 days before the hearing.
2. One or more public hearing(s) on the Sec. 111(d)/129 State Plan
(or revision) conducted at location(s) within the State, if requested.
3. Date, time, and place of hearing(s) prominently advertised in
each region affected.
4. Availability of draft Section 111(d)/129 State Plan for public
inspection in at least one location in each region to which it will
apply.
5. Notice of hearing provided to:
a. EPA Regional Administrator
b. Local affected agencies
c. Other states affected
6. Certification that the public hearing, if held, was conducted in
accordance with Subpart B and State procedures.
7. Hearing records must be retained for a minimum of two years.
These records must include the list of commentors, their affiliation,
summary of each presentation and/or comments submitted, and the State's
responses to those comments.
The amendments to incorporate the EG requirements into the State's
existing combustor rules were placed on public notice in the State
Register on November 17, 1997. A copy of the notice was mailed to 1380
people, and of those, 193 were additionally mailed a copy of the rule.
A public hearing was held on January 21, 1998, at the MPCA offices in
St. Paul, MN. The public hearing was presided over by Judge Allan
Klein.
The Title V permit for UPA-Elk River facility was placed on public
notice on February 12, 1998. The comment period ended on March 13,
1998.
The Administrative Order for the NSP facility was placed on public
notice on February 23, 1998 and the comment period ended on March 25,
1998.
Each component of the State's submittal (the rules, Title V permit
and Administrative Order) was public noticed at some time. Each of the
public notices stated that it would be submitted to EPA as part of
Minnesota's 111(d) plan. Each public notice also stated that not only
would that specific document be submitted but the other components
would be as well.
H. Submittal of State Progress Reports to EPA
States must commit in the Sec. 111(d)/129 State Plan to submit
annual reports on progress in the implementation of the EG to the EPA.
In its submittal, the MPCA has committed to submitting annual
implementation progress reports to the EPA beginning one year after EPA
approves the plan.
III. Final Action
Based on the rationale discussed above and in further detail in the
TSD associated with this action, EPA is approving Minnesota's April 28,
1998 submittal of its Sec. 111(d)/129 plan for existing large MWCs. As
provided by 40 CFR 60.28(c), any revisions to Minnesota's Sec. 111(d)/
129 plan or associated regulations will not be considered part of the
applicable plan until submitted by the State in accordance with 40 CFR
60.28 (a) or (b), as applicable, and until approved by EPA in
accordance with 40 CFR part 60, subpart B.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the State Plan should
adverse or critical comments be filed. This action will be effective
October 13, 1998 unless, by September 11, 1998, adverse or critical
comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a timely withdrawal in the Federal
Register. All public comments received will then be addressed in a
subsequent final rule based on this action serving as a proposed rule.
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 on October 13, 1998.
IV. Administrative
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Executive Order 13045
This final rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
C. Regulatory Flexibility
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,
[[Page 43083]]
small not-for-profit enterprises, and small governmental jurisdictions.
This direct final rule will not have a significant impact on a
substantial number of small entities because State Plan approvals under
Sec. 111(d) of the CAA 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 CAA
preparation of a flexibility analysis would constitute Federal inquiry
into the economic reasonableness of a State action. The CAA 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).
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must undertake various actions
in association with 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. This Federal action approves pre-existing requirements under
State law, and imposes no new requirements. Accordingly, no additional
costs to state, local, or tribal governments, or the private sector,
result from this action.
E. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding Minnesota's audit
privilege and penalty immunity law Sections 114C.20 to 114C.31 of the
Minnesota Statute or its impact upon any approved provision in the
State Plan. The action taken herein does not express or imply any
viewpoint on the question of whether there are legal deficiencies in
this or any other Act program resulting from the effect of Minnesota's
audit privilege and immunity law. A State audit privilege and immunity
law can affect only State enforcement and cannot have any impact on
Federal enforcement authorities. EPA may at any time invoke its
authority under the Act including, for example, sections 113, 167, 205,
211 or 213, to enforce the requirements or prohibitions of the State
plan, independently of any State enforcement effort. In addition,
citizen enforcement under section 304 of the CAA is likewise unaffected
by a State audit privilege or immunity law.
F. 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. 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 the publication of the rule in the Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
G. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 13, 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, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Municipal solid
waste, Reporting and recordkeeping requirements.
Dated: July 23, 1998.
Robert Springer,
Acting Regional Administrator, Region V.
40 CFR part 62 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.
2. A new center heading and Secs. 62.5870, 62.5871, and 62.5872 are
added to read as follows:
Subpart Y--Minnesota
Existing Large Municipal Waste Combustors
Sec. 62.5870 Identification of plan.
``Section 111(d) Plan for Implementing the Large Municipal Waste
Combustor Emission Guidelines,'' submitted by the State on April 28,
1998. The rules being approved as part of this plan are being approved
for their applicability to large municipal waste combustors in
Minnesota and should apply only to these sources.
Sec. 62.5871 Identification of sources.
The plan applies to all existing municipal waste combustor units
with the design capacity of 93.75*10 \6\ Btu/hr or more. This is the
same as having an applicability threshold of the capacity to process
250 tons per day or more of municipal solid waste.
Sec. 62.5872 Effective date.
The effective date of the plan for existing large waste combustors
is October 13, 1998.
[FR Doc. 98-21678 Filed 8-11-98; 8:45 am]
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