[Federal Register Volume 63, Number 222 (Wednesday, November 18, 1998)]
[Rules and Regulations]
[Pages 63988-63990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30602]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[AL-048-1-9901a; FRL-6188-9]


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

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA) is 
approving the sections 111(d)/129 State Plan submitted by the Alabama 
Department of Environmental Management (ADEM) for the State of Alabama 
on September 11, 1998, for implementing and enforcing 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 19, 1999 without 
further notice, unless EPA receives adverse comments by December 18, 
1998. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Kimberly Bingham, EPA 
Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 
30303-3104.
    Copies of materials submitted to EPA may be examined during normal 
business hours at the following locations: EPA Region 4, Atlanta 
Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104; and 
at the Alabama Department of Environmental Management, Air Division, 
1751 Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038 or 
Scott Davis at (404) 562-9127.

SUPPLEMENTARY INFORMATION:

I. 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 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 Cb and Eb apply only to MWC units with individual 
capacity to combust more than 250 tons per day of MSW (large MWC 
units).
    Section 129(b)(2) of the Act requires States to submit to EPA for 
approval State 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. 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 ADEM for the State 
of Alabama to implement and enforce subpart Cb, as it applies to large 
MWC units only.

II. Discussion

    ADEM submitted to EPA on September 11, 1998, the following in their 
111(d)/129 State Plan for implementing and enforcing the EG for 
existing MWCs under their direct jurisdiction in the State of Alabama: 
Public Participation Demonstration That the Public Had Adequate Notice 
and Opportunity to Submit Written Comments and Attend the Public 
Hearing; Legal Authority; Emission Limits and Standards; Compliance 
Schedule; Inventory of MWC Plant/Units; MWC Emissions Inventory; Source 
Surveillance, Compliance Assurance, and Enforcement Procedures; 
Submittal of Progress Reports to EPA; Federally Enforceable State 
Operating Permit (FESOP) for the Solid Waste Disposal Authority of the 
City of Huntsville MWC facility; and applicable State of Alabama 
statutes and rules of the ADEM. ADEM submitted its Plan after the Court 
of Appeals vacated subpart Cb as it applies to small MWC units. Thus, 
the Alabama State Plan covers only large MWC units. As a result of the 
Davis decision and subsequent vacatur order, there are no EG 
promulgated under sections 111 and 129 that apply to small MWC units. 
Accordingly, EPA's review and approval of the Alabama State Plan for 
MWCs addresses only those parts of the Alabama State 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 
EG 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 the Alabama State Plan is based on finding that: 
(1) ADEM provided adequate public notice of public hearings for the 
proposed plan and FESOP which allow ADEM to implement and enforce the 
EG for large MWCs, and (2) ADEM 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.
    In part F and attachment C of the Plan, ADEM cites the following 
references for the legal authority: Opinion of the Region 4 
Administrator in response to the Governor of the State of Alabama; The 
Alabama Environmental Management Act, section 22-22A, Code of Alabama 
1975, as amended; The Alabama Air Pollution Control Act, section 22-28, 
Code of Alabama 1975, as amended; The ADEM Administrative Code, Rule 
335-3-1-.04. These statutes and regulations are contained in appendix 
C. On the basis of these statutes and rules of the State of Alabama, 
the State Plan and FESOP are approved as being at least as

[[Page 63989]]

protective as the Federal requirements for existing large MWC units.
    ADEM cites all emission standards and limitations for the major 
pollutant categories as conditions in the FESOP for the City of 
Huntsville MWC, the only designated facility in the State of Alabama 
subject to these standards and limitations (in appendix B of the Plan). 
These standards and limitations in the FESOP have been approved as 
being at least as protective as the Federal requirements contained in 
subpart Cb for existing large MWC units.
    ADEM submitted the compliance schedule for the City of Huntsville 
MWC, the only large MWC under their direct jurisdiction in the State of 
Alabama. Part G of the Plan and the FESOP contain conditions consistent 
with 40 CFR part 60, subparts B and Cb, specifications for compliance 
schedules. This portion of the Plan and FESOP have been reviewed and 
approved as being at least as protective as Federal requirements for 
existing large MWC units.
    In part G of the Plan, ADEM submitted an emissions inventory of all 
designated pollutants for the City of Huntsville MWC, the only large 
MWC under their direct jurisdiction in the State of Alabama. This 
portion of the Plan has been reviewed and approved as meeting the 
Federal requirements for existing large MWC units.
    ADEM includes its legal authority to require owners and operators 
of designated facilities to maintain records and report to their Agency 
the nature and amount of emissions and any other information that may 
be necessary to enable their Agency to judge the compliance status of 
the facilities in part G of the State Plan and as conditions in the 
FESOP for the City of Huntsville MWC. In part G, the ADEM also cites 
its legal authority to provide for periodic inspection and testing and 
provisions for making reports of MWC emissions data, correlated with 
emission standards that apply, available to the general public. Part G 
of the State Plan outlines the authority to meet the requirements of 
monitoring, recordkeeping, reporting, and compliance assurance. These 
referenced State of Alabama rules are contained in appendix C of the 
Plan. This portion of the Plan and FESOP have been reviewed and 
approved as being at least as protective as the Federal requirements 
for existing large MWC units.
    As stated in part G of the Plan, ADEM will provide progress reports 
of Plan implementation updates to the EPA on an annual basis. These 
progress reports will include the required items pursuant to 40 CFR 
part 60, subpart B. This portion of the Plan has been reviewed and 
approved as meeting the Federal requirement for State Plan reporting.
    This action approves the State Plan submitted by ADEM for the State 
of Alabama to implement and enforce subpart Cb, as it applies to large 
MWC units only.

III. Final Action

    This action approves the State Plan submitted by ADEM for the State 
of Alabama to implement and enforce Subpart Cb, as it applies to large 
MWC units only. 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 SIP revision 
should adverse comments be filed. This rule will be effective January 
19, 1999 without further notice unless the Agency receives adverse 
comments by December 18, 1998.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on January 19, 1999 and no 
further action will be taken on the proposed rule.

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, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, E.O. 12875 requires EPA to 
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 EPA complies by 
consulting, E.O. 13084 requires EPA to 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

[[Page 63990]]

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.

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 SIP approvals under 
section 110 and subchapter I, part D 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 SIP 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 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).

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 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.

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. 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).

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 January 19, 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 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 waste 
combustors, Reporting and recordkeeping requirements.

    Dated: November 4, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    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. 7401-7642.

Subpart B--Alabama

    2. Part 62.100 is amended by adding paragraphs (b)(4) and (c)(4) to 
read as follows:


Sec. 62.100  Identification of plan.

* * * * *
    (b) * * *
    (4) State of Alabama Plan for Implementation of 40 CFR part 60, 
Subpart Cb, For Existing Municipal Waste Combustors, submitted on 
September 11, 1998, by the Alabama Department of Environmental 
Management.
    (c) * * *
    (4) Existing municipal waste combustors.
    3. Subpart B is amended by adding a new Sec. 62.104 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. 62.104  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 sites:
    (a) Solid Waste Disposal Authority of the City of Huntsville MWC, 
Huntsville, Alabama.
    (b) [Reserved]

[FR Doc. 98-30602 Filed 11-17-98; 8:45 am]
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