[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Rules and Regulations]
[Pages 6234-6237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2983]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region 2 Docket No. NY30-188b, FRL-6231-7]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action on revisions to the State Plan submitted by New York to 
fulfill the requirements of sections 111(d)/129 of the Clean Air Act 
for Municipal Waste Combustors (MWC). The revisions concern the 
implementation and enforcement of the Emissions Guidelines, as amended 
by EPA on August 25, 1997, applicable to existing large MWC units with 
individual capacity to combust more than 250 tons per day of municipal 
solid waste. We are approving the State Plan which imposes revised 
emission limits for four pollutants (hydrogen chloride, sulfur dioxide, 
nitrogen oxides and lead) and compliance schedules for the existing 
MWC's in New York which will reduce the designated pollutants.

DATES: This rule is effective on April 12, 1999 without further notice, 
unless EPA receives adverse comment by March 11, 1999. If EPA receives 
such comment, EPA will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: All comments should be addressed to: Ronald J. Borsellino, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    Copies of the state submittal are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division of 
Air Resources, 50 Wolf Road, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, S.W., Washington, 
D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Christine DeRosa or Kirk J. Wieber, 
Air Programs Branch, Environmental Protection Agency, Region 2 Office, 
290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-
4249.

SUPPLEMENTARY INFORMATION:

A. 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 Municipal Waste Combustors (MWCs) and Emission 
Guidelines (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

[[Page 6235]]

designated pollutants: 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 (tpd) of municipal solid waste (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 tpd of 
municipal solid waste (large MWC units). On August 25, 1997, EPA 
published changes to the emission guidelines to address the court 
decision (65 FR 45116). The amendments affect the applicability of the 
guidelines and standards, and add supplemental emission limits for four 
pollutants (hydrogen chloride, sulfur dioxide, nitrogen oxides, and 
lead) to the guidelines. Compliance with the supplemental emission 
limits is required by August 25, 2002 or three years after approval of 
a revised state plan incorporating these amendments, whichever is 
first. The amendments went into effect on October 24, 1997 and state 
plans incorporating those changes were due on August 25, 1998.
    Under section 129 of the Act, emission guidelines are not federally 
enforceable. Section 129(b)(2) of the Act requires states to submit to 
EPA for approval State Plans that implement and enforce the emission 
guidelines. 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 revised State Plan submitted by New York to implement and 
enforce subpart Cb, as amended by EPA on August 25, 1997, applicable to 
existing large MWC units with individual capacity to combust more than 
250 tpd of municipal solid waste.

B. State Submittal

    On December 15, 1997, and supplemented on June 22, 1998, the New 
York State Department of Environmental Conservation (NYSDEC) submitted 
to EPA a section 111(d)/129 plan to implement 40 CFR part 60, subpart 
Cb--Emission Guidelines for existing large MWC units located in New 
York State. New York's submittal as supplemented included: the 
necessary legal authority; enforceable mechanisms; enforceable 
compliance schedules; inventory of MWC units; emissions inventory; 
testing, monitoring, recordkeeping, and reporting requirements; 
provision for annual state progress reports; and record of public 
hearing. EPA approved New York's submittal on August 4, 1998 (63 FR 
41427).
    On October 7, 1998, NYSDEC submitted to EPA, revisions to New 
York's State Plan for existing large MWC's. This submittal was 
supplemented by the NYSDEC on November 5, 1998. New York's submittal as 
supplemented includes only those required state plan elements that 
needed to be revised to address EPA's August 25, 1997 amendments. These 
include: enforceable mechanisms; enforceable compliance schedules; and 
record of public hearing, all other elements remain as approved by EPA 
on August 4, 1998 (63 FR 41427).

C. Review of State Submittal

    New York has adopted by reference the requirements of the emissions 
guidelines (including emissions limitations, testing, monitoring, 
recordkeeping and reporting requirements) in Part 200 of title 6 of the 
New York Code of Rules and Regulations of the State of New York, 
entitled, ``General Provisions'' and will enforce the requirements 
under Part 201, entitled, ``Permits and Registration'' both effective 
October 1, 1998. By incorporating the EG by reference into Part 200, 
NYSDEC has the authority to include them as applicable requirements in 
permits of emission sources subject to such requirements and to enforce 
such requirements.
    The schedules for compliance with the requirements incorporated by 
reference in Part 200 for each of the seven affected facilities were 
included as part of New York's submittal to EPA. These schedules are 
enforceable and have been incorporated into each facility's existing 
State operating permit and will also be incorporated into each 
facility's Title V permit. In addition, the Title V permits for each 
facility, once issued, will contain the applicable requirements of 40 
CFR part 60, subpart Cb (EG for existing large MWC's) that were 
incorporated by reference in New York's Part 200. These include 
emission limitations, operating requirements, testing requirements and 
training requirements. The Title V permit process will include a public 
hearing for each affected facility.

D. Conclusion

    EPA has evaluated the revised MWC State Plan submitted by New York 
for consistency with the Act, EPA guidelines and policy. EPA has 
determined that New York's State Plan meets all requirements and, 
therefore, EPA is approving New York's revised State Plan to implement 
and enforce subpart Cb, as amended by EPA on August 25, 1997, 
applicable to existing large MWC units with individual capacity to 
combust more than 250 tpd of municipal solid waste.
    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 State Plan revision 
should adverse comments be filed. This rule will be effective April 12, 
1999 without further notice unless the Agency receives adverse comments 
by March 11, 1999.
    If the EPA receives adverse comments, then EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.
    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.

E. Administrative Requirements

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.''

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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 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.

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.

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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other 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. 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.

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

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.

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. 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).

Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 12, 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

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enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Intergovernmental 
relations, Municipal waste combustors, Reporting and recordkeeping 
requirements.

    Dated: January 28, 1999.
William J. Muszynski,
Deputy Regional Administrator, Region 2.

    Part 62, chapter I, title 40 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 HH--New York

    2. Part 62 is amended by adding Sec. 62.8103(c)


Sec. 62.8103  Identification of plan

* * * * *
    (c) On October 7, 1998 and supplemented on November 5, 1998, the 
New York State Department of Environmental Conservation submitted 
revisions to the State Plan which incorporates emission limits and 
compliance schedules as amended by EPA on August 25, 1997 (65 FR 
45116).

[FR Doc. 99-2983 Filed 2-8-99; 8:45 am]
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