[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Rules and Regulations]
[Pages 68394-68397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32986]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Docket# ME-057-01-7006a; FRL-6201-1]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: Maine; Plan for Controlling MWC Emissions 
From Existing MWC Plants

AGENCY: Environmental Protection Agency (EPA).

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 the Maine 
Department of Environmental Protection on April 15, 1998, for 
implementing and enforcing the Emissions Guidelines (EG) applicable to 
existing Municipal Waste Combustors (MWCs) units with capacity to 
combust more than 250 tons/day of municipal solid waste (MSW). See 40 
CFR part 60, subpart Cb.

DATES: This direct final rule is effective on February 9, 1999 without 
further notice unless EPA receives adverse comment by January 11, 1999. 
If adverse comment is received by the above date, 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: Written comments should be addressed to: John Courcier, 
Office of Ecosystem Protection (CAP), U.S. EPA-New England, Region 1, 
JFK Federal Building, Boston, Massachusetts 02203-2211.
    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, 
DC 20460. Copies of materials submitted to EPA relative to this action 
may be examined 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 day of the visit.
    Environmental Protection Agency-New England, Region 1, Air Permits 
Unit, Office of Ecosystem Protection, 11th floor, One Congress Street, 
Boston, Massachusetts 02203.
    Maine Department of Environmental Protection, Bureau of Air 
Quality, Ray Building, Hospital Street, Augusta, Maine 04333.

FOR FURTHER INFORMATION CONTACT: John Courcier at (617) 565-9462.

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 dioxin 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 its 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 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 Maine to 
implement and enforce subpart Cb, as it applies to large MWC units 
only.

II. Discussion

    The Maine Department of Environmental Protection (DEP) submitted to 
EPA on April 15, 1998 the following sections 111(d)/129 State Plan 
components for implementing and enforcing the emission guidelines for 
existing MWCs in the State: Legal Authority; Emission Standards and 
Limitations; Compliance Schedule; MWC Emissions and MWC Plant/Unit 
Inventories; Procedures for Testing and Monitoring Sources of Air 
Pollutants; Source Surveillance, Compliance Assurance and Enforcement; 
Demonstration That the Public Had Adequate Notice and Opportunity to 
Submit Written Comments and Public Hearing Summary; and applicable 
State regulations (DEP regulations Chapter 121). DEP submitted its Plan 
after the Court of Appeals vacated subpart Cb as it applies to small 
MWC units. Thus, the Maine State Plan covers only large MWC units. 
Small units are not subject to the requirements of subpart Cb and not 
subject to this approval.
    The approval of DEP's State Plan is based on EPA's finding that: 
(1) DEP provided adequate public notice of public hearings for the 
proposed rulemaking which allows Maine to implement and enforce 
provisions that are at least as protective as the EG for large MWCs, 
and (2) DEP 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 record keeping; conduct 
inspections and tests; require the use of monitors; require emission 
reports of owners and operators; and make emission data publicly 
available.
    In section 1.1 and appendix D of Maine's Plan, the DEP cites the 
following in support of its demonstration of legal authority: State of 
Maine Attorney General's Demonstration of the Legal Authority to 
Implement and Enforce MWC NSPS and Emissions Guidelines; Attorney 
General's Legal Opinion to Operate the Title V Operating Permit 
Program; 38 MRSA section 344; 38 MRSA section 585, Establishment of 
Emission Standards; 38 MRSA section 585-B, Hazardous Air Pollutant 
Standards; 38 MRSA section 590, Licensing. In

[[Page 68395]]

appendix A of the State Plan, DEP cites all emission standards and 
limitations for the major pollutant categories related to the 
designated sites and facilities. These standards are in DEP's Air 
Bureau Regulations Chapter 121, Emission Limitation and Emission 
Testing of Resource Recovery Facilities. On the basis of the Attorney 
General's Opinion and Demonstration, the statutes, and the rules of the 
State of Maine, these standards and limitations under Chapter 121 are 
approved as being at least as protective as the Federal requirements 
contained in subpart Cb for existing large MWC units.
    In its State Plan and Chapter 121 MWC Regulations, DEP established 
a compliance schedule and legally enforceable increments of progress 
for each large MWC. This portion of the State Plan and Rule has been 
reviewed and approved as being at least as protective as Federal 
requirements for existing large MWC units.
    In section 1.4 of Maine's Plan, the DEP submitted an emissions 
inventory of all designated pollutants for each of its three large 
MWCs. This portion of the Plan has been reviewed and approved as 
meeting the Federal requirements for existing large MWC units.
    In section 1.7, Maine's Plan describes 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 
any other information that may be necessary to enable the State to 
judge the compliance status of the affected facilities in section 1.3 
of the Plan. Maine also cites its legal authority to provide periodic 
inspection and testing and provisions for making reports of MWC 
emissions data, correlated with applicable emission standards, 
available to the general public. Maine incorporated by reference into 
Chapter 121 the testing, monitoring, reporting and record keeping 
requirements under 40 CFR part 60. All of these State rules have been 
reviewed and approved as being at least as protective as the Federal 
requirements for existing large MWC units.
    As stated in section 1.9 of the State Plan, Maine is committed to 
provide annual progress reports of Plan implementation. These progress 
reports will include the required items pursuant to 40 CFR part 60, 
subpart B and appendix D. This portion of the Plan has been reviewed 
and approved as meeting the minimum Federal requirement for State Plan 
reporting.

Final Action

    EPA is approving the above referenced State Plan. EPA is publishing 
this action without prior proposal because the Agency views this as a 
noncontroversial action 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 State Plan should relevant adverse comments be filed. If no 
significant, material, and adverse comments are received by January 11, 
1999, this action will be effective February 9, 1999.
    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 February 9, 1999.

III. 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

    To reduce the burden of Federal regulations on States and small 
governments, the President issued E. O. 12875 on October 26, 1993, 
entitled ``Enhancing the Intergovernmental Partnership.'' Under E. O. 
12875, EPA is required to consult with representatives of affected 
State, local, and tribal governments, and keep these affected parties 
informed about the content and effect of the promulgated standards and 
emission guidelines.
    In developing the MWC emission guidelines and standards, EPA 
consulted with affected State, local, and tribal governments, and kept 
those parties informed about the MWC standards and guidelines. EPA 
prepared a written statement pursuant to E. O. 12875 which it published 
in the 1995 promulgation notice (see 60 FR 65412 to 65413). The EPA has 
determined that this State Plan does not include any new Federal 
mandates or additional Federal requirements beyond those previously 
considered during promulgation of the 1995 MWC guidelines. Therefore, 
E.O. 12875 does not require further consultation or information. To the 
extent that the State Plan contains requirements that differ from, but 
that are at least as protective as, the Federal MWC guidelines, EPA 
notes that it has consulted with State government representatives 
during the State's development of the Plan, and that affected local and 
tribal governments have been provided with information and afforded 
opportunities to comment through Maine's public hearing and comment 
procedures.

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 
that EPA has reason to believe may have a disproportionate effect on 
children.

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 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, E. O. 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal

[[Page 68396]]

governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's action does not create any new requirements on any entity 
affected by this State Plan. Thus, the action will 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

    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.
    State Plan approvals under section 111(d) and section 129(b)(2) of 
the Clean Air Act do not create any new requirements on any entity 
affected by this rule, including small entities. They simply approve 
requirements that the state is already imposing. Furthermore, in 
developing the MWC emission guidelines and standards, EPA prepared a 
written statement pursuant to the Regulatory Flexibility Act which it 
published in the 1995 promulgation notice (see 60 FR 65413). In 
accordance with EPA's determination in issuing the 1995 MWC emission 
guidelines, this State Plan does not include any new requirements that 
will have a significant economic impact on a substantial number of 
small entities. Therefore, because the Federal 111(d) Plan approval 
does not impose any new requirements and pursuant to section 605(b) of 
the Regulatory Flexibility Act, the Regional Administrator certifies 
that this rule will not have a significant impact on a substantial 
number of small entities.

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 
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.
    In developing the MWC emission guidelines and standards, EPA 
prepared a written statement pursuant to section 202 of the Unfunded 
Mandates Act which it published in the 1995 promulgation notice (see 60 
FR 65405 to 65412). The EPA has determined that this State Plan does 
not include any new Federal mandates above those previously considered 
during promulgation of the 1995 MWC guidelines. The State Plan does 
include an emission limitation for mercury that in some circumstances 
will be more stringent than the limit required by the EG. However, that 
limit is not the result of a Federal mandate. In approving the State 
Plan, EPA is approving pre-existing requirements under State law and 
imposing no new requirements. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from EPA's approval of State Plan provisions that may be more stringent 
than the EG requirements, nor will EPA's approval of the State Plan 
significantly or uniquely affect small governments. Thus, this action 
is not subject to the requirements of sections 202, 203, 204, and 205 
of the Unfunded Mandates Act.

G. Submission to Congress and the General Accounting Office

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

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    In approving or disapproving state plans under section 129 of the 
Clean Air Act, EPA does not have the authority to revise or rewrite the 
State's rule, so the Agency does not have authority to require the use 
of particular voluntary consensus standards. Accordingly, EPA has not 
sought to identify or require the State to use voluntary consensus 
standards. Furthermore, Maine's Plan incorporates by reference test 
methods and sampling procedures for existing MWC units already 
established by the emissions guidelines for MWCs at 40 CFR part 60, 
subpart Cb, and does not establish new technical standards for MWCs. 
Therefore, the requirements of the NTTAA are not applicable to this 
final rule.

I. 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 February 11, 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), 42 
U.S.C. 7607(b)(2)). EPA encourages interested parties to comment in 
response to the proposed rule rather than petition for judicial review, 
unless the objection arises after the comment period allowed for in the 
proposal.

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 24, 1998.
John P. DeVillars,
Regional Administrator, Region 1.

    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:


[[Page 68397]]


    Authority: 42 U.S.C. 7401-7642.

Subpart U--Maine

    2. Part 62.4845 is amended by adding paragraphs (b)(4) and (c)(3) 
to read as follows:


Sec. 62.4845  Identification of plan.

* * * * *
    (b) * * *
    (4) Control of metals, acid gases, organic compounds and nitrogen 
oxide emissions from existing municipal waste combustors, submitted on 
April 15, 1998.
    (c) * * *
    (3) Existing municipal waste combustors.
    3. Part 62 is amended by adding a new Sec. 62.4975 and a new 
undesignated center heading to Subpart U 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. 62.4975  Identification of sources.

    The plan applies to the following existing municipal waste 
combustor facilities:
    (a) Penobscot Energy Recovery Company, Orrington, Maine.
    (b) Maine Energy Recovery Company, Biddeford, Maine.
    (c) Regional Waste Systems, Inc., Portland, Maine.

[FR Doc. 98-32986 Filed 12-10-98; 8:45 am]
BILLING CODE 6560-50-P