[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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