[Federal Register Volume 62, Number 132 (Thursday, July 10, 1997)]
[Rules and Regulations]
[Pages 36995-36997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18082]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Docket# OR-1-0001; FRL-5852-3]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: Oregon

AGENCY: Environmental Protection Agency.

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 Oregon on 
December 31, 1996, for implementing and enforcing the Emissions 
Guidelines (EG) applicable to existing Municipal Waste Combustors 
(MWCs) with capacity to combust more than 250 tons/day of municipal 
solid waste (MSW). See 40 CFR part 60, subpart Cb.

DATES: This action is effective on September 8, 1997 unless 
significant, material, and adverse comments are received by August 11, 
1997. If significant, material, and adverse comments are received by 
the above date, this direct final rule will be withdrawn, and timely 
notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Catherine Woo, 
Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, 
Washington 98101.
    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, 
D.C. 20460. Copies of materials submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, 
Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 
98101, and at Oregon Department of Environmental Quality, 811 SW Sixth 
Avenue, Portland, Oregon 97204.

FOR FURTHER INFORMATION CONTACT: Catherine Woo, Office of Air Quality 
(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-1814.

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 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/
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/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

[[Page 36996]]

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 Oregon to 
implement and enforce subpart Cb, as it applies to large MWC units 
only.

II. Discussion

    The Oregon Department of Environmental Quality (ODEQ) submitted to 
EPA the following in their 111(d)/129 State Plan for implementing and 
enforcing the emission guidelines for existing MWCs in the State: 
Emission Standards and Limitations; Compliance Schedule; Emission 
Inventory; Source Surveillance, Compliance Assurance and Enforcement; 
and applicable State regulations (OAR 340-025-0557, and OAR 340-025-
0950 through 1010) on December 31, 1996. ODEQ submitted its plan before 
the Court of Appeals vacated subpart Cb as it applies to small MWC 
units. Thus, ODEQ's plan covers both large and small MWC units. As a 
result of the Davis decision and subsequent vacatur order, there are no 
emission guidelines promulgated under sections 111 and 129 that apply 
to small MWC units. Accordingly, EPA's review and approval of ODEQ's 
State Plan for MWCs addresses only those parts of ODEQ's 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 emission guidelines 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 ODEQ's State Plan is based on finding that: (1) 
ODEQ provided adequate public notice of public hearings for the 
proposed rulemaking which allows Oregon to implement and enforce the EG 
for large MWCs, and (2) ODEQ 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 recordkeeping; conduct 
inspections and tests; require the use of monitors; require emission 
reports of owners and operators; and make emission data publicly 
available.
    In Attachment 3a of the State Plan, ODEQ cites all emission 
standards and limitations for the major pollutant categories related to 
the designated sites and facilities. These standards and limitations 
are approved as being at least as protective as the Federal 
requirements contained in subpart Cb for existing large MWC units.
    ODEQ also submitted Oregon Administrative Rule (OAR) 340-025-0110, 
which includes a compliance schedule and legally enforceable increments 
of progress for each large MWC. The State Rule has been reviewed and 
approved as being at least as protective as Federal requirements for 
existing large MWC units.
    Oregon's Plan includes 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 the compliance status 
of the facilities. Oregon also cites its legal authority to provide 
periodic inspection and testing, as necessary. OAR 340-025-1000 was 
submitted as evidence of Oregon's authority to require public 
disclosure of MWC emissions data. Oregon submitted the following State 
rules to support the requirements of monitoring, reporting, and 
compliance assurance: OAR 340-025-0970, Operating Practices; OAR 340-
025-0980, Operator Training and Certification; and OAR 340-025-0990, 
Monitoring and Testing. All of these State rules have been reviewed and 
approved as meeting Federal requirements for existing large MWC units.
    All measures and other elements in the State Plan must be 
enforceable by ODEQ and EPA. (See Sections 111(d), 129 and 40 CFR part 
60.) During EPA's review of a previous State Implementation Plan 
revision involving Oregon's statutory authority, a problem was detected 
which affected the enforceability of point source permit limitations. 
EPA determined that, because a five-day advance notice provision 
required by Oregon Revised Statute (ORS) 468.126(1) (1991) can bar 
civil penalties from being imposed for certain permit violations, ORS 
468 fails to provide the adequate enforcement authority the State must 
demonstrate to obtain State Plan submittal, as specified in Section 
111(d) of the Clean Air Act and 40 CFR part 60. Accordingly, the 
requirement to provide such notice would preclude Federal approval of 
the State Plan.
    However, following EPA notification to Oregon, the Governor of 
Oregon signed into law new legislation amending ORS 468.126 on 
September 3, 1993. This amendment added paragraph 468.126(2)(e) which 
provides that the five-day advance notice required by ORS 468.126(1) 
does not apply if the notice requirement will disqualify the State's 
program from Federal approval or delegation. ODEQ responded to EPA's 
interpretation of the application of 468.126(2)(e) and agreed that, if 
Federal statutory requirements preclude the use of the five-day advance 
notice provision, no advance notice will be required for violations of 
the State Plan requirements. Because the five-day notice provision in 
ORC 468.126 could preclude enforcement of the State Plan in some 
instances, application of the notice provision would preclude approval 
of the State MWC Plan. Accordingly, pursuant to ORS 468.126(2)(e), the 
five-day notice will not be required for permit violations of the State 
Plan.
    As stated in Attachment 6 of the State Plan, Oregon plans to 
provide progress of plan updates on a semi-annual basis as well as 
provide progress in the required annual report pursuant to 40 CFR 
51.321. This meets the minimum requirement for State reporting, and 
this is approved.
    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, the EPA has included a parallel proposal to 
approve the ODEQ State Plan. If no significant, material, and adverse 
comments are received by August 11, 1997, this action will be effective 
September 8, 1997.
    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 September 8,1997.

[[Page 36997]]

III. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. 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.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, I 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. This Federal action approves pre-
existing requirements under federal, State or local law, and imposes no 
new requirements on any entity affected by this rule, including small 
entities. Therefore, these amendments will not have a significant 
impact on a substantial number of small entities.

C. 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.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated 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.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A), as added 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).

E. 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 September 8, 1997. 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).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Municipal Waste Combustors, Reporting and recordkeeping 
requirements.

    Dated: June 24, 1997.
Chuck Clarke,
Regional Administrator.

    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.

Subpart MM--Oregon

    2. Part 62.9350 is amended by adding paragraphs (b)(4) and (c)(4) 
to read as follows:


Sec. 62.9350  Identification of plan.

* * * * *
    (b)* * *
    (4) Control of metals, acid gases, organic compounds and nitrogen 
oxide emissions from existing municipal waste combustors was submitted 
by Oregon Department of Environmental Quality on December 31, 1996.
    (c)* * *
    (4) Existing municipal waste combustors.
    3. Subpart MM is amended by adding a new Sec. 62.9505 and a new 
undesignated heading to read as follows:
Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions Frp, 
Existing Municipal Waste Combustors With the Capacity to Combust 
Greater Than 250 Tons Per Day of Municipal Solid Waste


Sec. 62.9505  Identification of sources.

    The plan applies to existing facilities at the following municipal 
waste combustor sites:
    (a) Ogden Martin Systems, Marion County, Oregon.
    (b) Coos County, Coos Bay, Oregon.

[FR Doc. 97-18082 Filed 7-9-97; 8:45 am]
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