[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Rules and Regulations]
[Pages 59887-59890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29654]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[OK-15-1-7399a: FRL-6183-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the State Plan submitted by the State of 
Oklahoma on July 10, 1998. The plan was developed in accordance with 
sections 111 and 129 of the Clean Air Act, and provides for 
implementation and enforcement of the Emissions Guidelines (EG) 
applicable to existing Municipal Waste Combustors (MWCs) with capacity 
to combust more than 250 tons per day of municipal solid waste (MSW) 
(see 40 CFR part 60, subpart Cb).

DATES: This direct final rule is effective January 5, 1999 without 
further notice, unless EPA receives adverse comment by December 7, 
1998. If adverse comments are received, EPA will publish a timely 
withdrawal of the

[[Page 59888]]

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: Mr. Thomas H. 
Diggs, Chief, Air Planning Section, EPA Region 6, 1445 Ross Avenue, 
Suite 1200, Dallas, TX 75202. Copies of documents relative to this 
action are available for public inspection 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 visiting day.
    Air Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
    Environmental Protection Agency, Region 6, Air Planning Section, 
1445 Ross Avenue, Suite 1200, Dallas, TX 75202, telephone (214) 665-
7214.
    Oklahoma Department of Environmental Quality, 707 North Robinson, 
Oklahoma City, OK 73101-1677, telephone (405) 702-4100.

FOR FURTHER INFORMATION CONTACT:
Lt. Mick Cote, Air Planning Section, 1445 Ross Avenue, Suite 1200, 
Dallas, TX 75202, telephone (214) 665-7219.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 19, 1995, pursuant to sections 111 and 129 of the Clean 
Air Act (the Act), 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 
per 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 per day of MSW (large MWC 
units).
    Under section 129 of the Act, EG are not Federally enforceable. 
Section 129(b)(2) of the Act requires states to submit to EPA for 
approval, plans that implement and enforce the EG. 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. The EPA originally 
promulgated the subpart B provisions on November 17, 1975. The 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 plan submitted by Oklahoma to implement 
and enforce subpart Cb, as it applies to large MWC units.

II. Discussion

    Oklahoma submitted to EPA on July 10, 1998, the following in their 
111(d)/129 State Plan for implementation and enforcement of the EG for 
existing MWCs under their direct jurisdiction in the State of Oklahoma 
pursuant to 40 CFR 60.23 through 60.26: Demonstration of Legal 
Authority; Enforceable Mechanism; Inventory of MWC Plants/Units; MWC 
Emissions Inventory; Emission Limits; Compliance Schedule; Testing, 
Monitoring, Recordkeeping and Reporting Requirements; Demonstration 
that the Public had Adequate Notice and Opportunity to Submit Written 
Comments; Provisions for Submittal of Progress Reports to EPA; and 
applicable State of Oklahoma statutes. Oklahoma submitted its State 
Plan after the Court of Appeals vacated subpart Cb as it applies to 
small MWC units. Thus, the Oklahoma State Plan covers only large MWC 
units.
    One MWC facility exists in Oklahoma with units affected by the MWC 
EG. This facility is owned by the City of Tulsa, and operated by Ogden-
Martin Systems of Tulsa, Incorporated. The Facility has three MWC 
units, each with the capacity to burn more than 250 tons per day of 
municipal solid waste.
    The approval of the Oklahoma State Plan is based on finding that: 
(1) The Oklahoma Department of Environmental Quality (ODEQ) provided 
adequate public notice of public hearings for the proposed rulemaking 
and State Plan which allow the ODEQ to implement and enforce the EG for 
large MWCs, and (2) the ODEQ also demonstrated legal authority to adopt 
emission standards and compliance schedules applicable to the 
designated facility; 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. Please see the Region & Evaluation Report and the State Plan 
submittal, as enclosed in the official file, for the detailed technical 
evaluation of the Oklahoma State Plan.

III. Final Action

    The EPA is approving the above referenced State Plan because it 
meets the Agency requirements. The EPA is publishing this rule without 
prior proposal because the Agency views this as a noncontroversial 
amendment and anticipates no adverse comments. However, in the proposed 
section of this Federal Register publication, the EPA is publishing a 
separate document that will serve as the proposal to approve the State 
Plan should relevant adverse comments be filed. This rule will be 
effective January 5, 1999 without further notice unless, by December 7, 
1998, relevant adverse comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on the proposed action. The 
EPA will not institute a second comment period. 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 January 5, 1999.
    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.

IV. 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

    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,

[[Page 59889]]

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.

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.

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 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, 
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. Accordingly, the requirements of section 3(b) of 
E.O. 13084 do not apply to this rule.

E. 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 Clean Air 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 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 
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 on such grounds. Union 
Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

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 
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 mostly 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.
    The 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.

G. Submission to Congress and the Comptroller General

    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 publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. 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 December 7, 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, Air pollution control, Municipal waste 
combustors, Reporting and recordkeeping requirements.


[[Page 59890]]


    Dated: October 28, 1998.
Lynda F. Carroll,
Acting Regional Administrator, Region 6.

    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:

    Authority: 42 U.S.C. 7401-7671q.

Subpart LL--Oklahoma

    2. Section 62.9100 is amended by adding paragraphs (b)(3) and 
(c)(3) as follows:


Sec. 62.9100   Identification of plan.

* * * * *
    (b) * * *
    (3) Oklahoma State Plan for Existing Large Municipal Waste 
Combustors, submitted on July 10, 1998, by the Oklahoma Department of 
Environmental Quality.
    (c) * * *
    (3) Existing municipal waste combustors.
    3. Subpart LL is amended by adding a new Sec. 62.9150 and a new 
undesignated center heading 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. 62.9150  Identification of sources.

    The plan applies to existing facilities with a municipal waste 
combustor (MWC) unit capacity greater than 250 tons per day of 
municipal solid waste (MSW) at the following MWC site: Ogden-Martin 
Systems of Tulsa, Incorporated, 2122 South Yukon Avenue, Tulsa, OK 
74107.
[FR Doc. 98-29654 Filed 11-5-98; 8:45 am]
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