[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Rules and Regulations]
[Pages 19919-19922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10229]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[MD056-3022a; FRL-6330-7]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, Maryland; Control of Emissions 
From Large Municipal Waste Combustors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the municipal waste combustor (MWC) 111(d)/
129 plan submitted by the Air and Radiation Management Administration, 
Maryland Department of the Environment, on December 4, 1997, and as 
amended on October 7, 1998. The plan was submitted to fulfill 
requirements of the Clean Air Act (CAA), and EPA emission guidelines 
(EG) applicable to existing MWC facilities with a unit combustor 
capacity of more than 250 tons per day (TPD) of municipal solid waste. 
An existing MWC unit is defined as one for which construction has 
commenced on or before September 20, 1994.

DATES: This direct final rule is effective on June 22, 1999, without 
further notice, unless the EPA receives adverse comment by May 24, 
1999. If adverse comment is received, the 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: Comments may be mailed to Makeba A. Morris, Chief, Technical 
Assessment Branch, Mailcode 3AP22, Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies 
of the documents relevant to this action are available for public 
inspection during normal business hours at the following locations: Air 
Protection Division, Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania; and the Air and Radiation 
Management Administration, Maryland Department of the Environment, 2500 
Broening Highway, Baltimore, Maryland 21224.

FOR FURTHER INFORMATION CONTACT: James B. Topsale at (215) 814-2190, or 
by e-mail at [email protected]. While information may be obtained 
via e-mail, any comments must be submitted, in writing, as indicated in 
the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 111(d) of the CAA requires that ``designated'' pollutants 
controlled under standards of performance for new stationary sources by 
section 111(b) of the CAA must also be controlled at existing sources 
in the same source category. Also, section 129 of the CAA specifically 
addresses solid waste combustion. It requires EPA to establish emission 
guidelines (EG) for MWC units and requires states to develop state 
plans for implementing the promulgated EG. The part 60, subpart Cb, EG 
for MWC units differ from other EG adopted in the past because the rule 
addresses both sections 111(d) and 129 CAA requirements. Section 129 
requirements override certain related aspects of section 111(d).

[[Page 19920]]

    On December 19, 1995, pursuant to sections 111 and 129 of the CAA, 
EPA promulgated new source performance standards (NSPS) applicable to 
new MWCs (i.e., those for which construction was commenced after 
September 20, 1994) 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 MWC emissions. Emissions from 
MWCs contain organics (dioxin/furans), metals (cadmium, lead, mercury, 
particulate matter, opacity), and acid gases (hydrogen chloride, 
sulphur dioxide, and nitrogen oxides).
    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 (MSW), 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 were amended to apply only 
to MWC units with the capacity to combust more than 250 TPD of MSW per 
unit (i.e., large MWC units). The amended requirements of the EG and 
NSPS were published in the Federal Register on August 25, 1997. See 62 
FR 45119 and 45124 for the EG amendments.
    Section 129(b)(2) of the CAA 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. 
However, EPA amended subpart B on December 19, 1995, to allow the 
source specific subparts (e.g., subpart Cb) developed under section 129 
to include requirements 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.
    As required by section 129(b)(3) of the CAA, on November 12, 1998 
EPA promulgated a Federal Implementation Plan (FIP) for large MWCs for 
which construction was commenced on or before September 20, 1994. The 
FIP is a set of emissions limits, compliance schedules, and other 
requirements that implement the MWC EG, as amended. The FIP is 
applicable to those large existing MWC not specifically covered by an 
approved State plan under sections 111(d) and 129 of the CAA. It fills 
a Federal enforceability gap until State plans are approved and ensures 
that the MWC units stay on track to complete pollution control 
equipment retrofit schedules to meet the final statutory compliance 
date of December 19, 2000. However, the FIP no longer applies once a 
State plan is approved. An approved State plan is a State plan that EPA 
has reviewed and approved based upon the requirements of 40 CFR part 
60, subpart B to implement and enforce 40 CFR part 60, subpart Cb. See 
63 FR 63192.
    As noted above, emissions from MWCs contain organics (dioxin/
furans), metals (cadmium, lead, mercury, particulate matter, opacity), 
and acid gases (hydrogen chloride, sulphur dioxide, and nitrogen 
oxides). These pollutants can cause adverse effects to the public 
health and the environment. Dioxin, lead and mercury can bioaccumulate 
in the environment. Acid gases contribute to the acid rain that lowers 
the pH of surface waters and watersheds, harms forests, and damages 
buildings. In addition, nitrogen oxides emissions contribute to the 
formation of ground level ozone, which is associated with a number of 
adverse health and environmental effects.

II. Review of Maryland's MWC Plan

    EPA has reviewed the Maryland 111(d)/129 plan for existing large 
MWC units in the context of the requirements of 40 CFR part 60, and 
subparts B and Cb, as amended. A summary of that review is provided 
below.

A. Identification of Enforceable State Mechanism for Implementing the 
EG

    The regulation at 40 CFR 60.24(a) requires that the section 111(d) 
plan include emissions standards, defined in 40 CFR 60.21(f) as `` a 
legally enforceable regulation setting forth an allowable rate of 
emissions into the atmosphere, or prescribing equipment specifications 
for control of air pollution emissions.'' The State of Maryland through 
the MDE, has adopted State regulations to control MWC emissions. The 
applicable Code of Maryland Regulations (COMAR) for large MWC is found 
at COMAR 26.11.08, Control of Incinerators. The applicable portion of 
the regulation relating to large MWC was adopted on October 24, 1997, 
and became effective on November 17, 1997. COMAR 26.11.08 amendments 
were adopted on August 18, 1998 and became effective on September 7, 
1998. The MDE has met the requirements of 40 CFR 60.24(a) to have a 
legally enforceable emission standard.

B. Demonstration of Legal Authority

    Title 40 CFR 60.26 requires the 111(d) plan to demonstrate that the 
State has legal authority to adopt and implement the emission standards 
and compliance schedules. The MDE has demonstrated that it has the 
legal authority to adopt and implement the emission standards governing 
MWC emissions. MDE's legal authority is derived from Title 2 of the 
Environment Article, Annotated Code of Maryland, sections 2-103(b) and 
2-301. Furthermore, Maryland has submitted and EPA has approved 
previous Maryland 111(d) plans for other designated facilities that 
demonstrate the required legal authority. This meets the requirements 
of 40 CFR 60.26.

C. Inventory of MWCs in Maryland Affected by the EG

    Title 40 CFR 60.25(a) requires the 111(d) plan to include a 
complete source inventory of all existing large MWCs (i.e., unit 
capacity greater than 250 TPD). The MDE has identified three (3) 
facilities with individual MWC units having combustion capacities 
greater than 250 TPD. The first facility, the Baltimore Resco plant has 
a total capacity of 2,250 TPD, consisting of three 750 TPD units each 
with emissions controlled by an electrostatic precipitator. The second 
facility, the Ogden Martin Systems of Montgomery County plant, has a 
total capacity of 1,800 TPD, consisting of three 600 TPD units each 
with emissions controlled by dry lime furnace injection and post 
combustion scrubbers for acid gases; ammonia injection for nitrogen 
oxides; carbon injection for mercury and dioxins; and baghouses for 
particulate matter and metals. The third facility, the Pulaski Highway 
MWC plant, has a total capacity of 1,500 TPD; however, this plant was 
shut down on September 15, 1995.

D. Inventory of Emissions From MWC in Maryland

    Title 40 CFR 60.25(a) requires that the plan include an emissions 
inventory that estimates emissions of the pollutant regulated by the 
EG. Emissions from MWCs contain organics (dioxin/furans), metals 
(cadmium, lead, mercury, particulate matter, opacity), and acid gases 
(hydrogen chloride, sulphur dioxide, and nitrogen oxides). For each MWC 
plant, the MDE plan contains information on estimated MWC emission 
rates in pounds per hour and tons per year based on stack test data and 
continuous emission monitoring data. This meets the emission inventory 
requirements of 40 CFR 60.25(a).

[[Page 19921]]

E. Emission Limitations for MWCs

    Title 40 CFR 60.24(c) specifies that the State plan must include 
emission standards that are no less stringent than the EG, except as 
specified in 40 CFR 60.24(f) which allows for less stringent emission 
limitations on a case-by-case basis if certain conditions are met. 
However, this exception clause is superseded by section 129(b)(2) of 
the CAA which requires that state plans be ``at least as protective'' 
as the EG. Title 40 CFR 60.33b of the EG contains the emissions 
limitations applicable to existing large MWCs. The MDE MWC regulation 
meets the emission limitation requirements by specifying emission 
limitations that are consistent and ``at least as protective'' as those 
in the EG, as amended.

F. Compliance Schedules

    A state section 111(d) plan must include a compliance schedule that 
owners and operators of affected MWCs must meet in complying with the 
requirements of the plan. Any proposed revision to a compliance 
schedule is subject to the requirements of subpart B 60.28, Plan 
revisions by the State. Title 40 CFR 60.39b of the EG provides that 
planning, awarding of contracts, and installation of air emission 
collection and control equipment capable of meeting the EG requirements 
must be accomplished within 3 years of EPA plan approval, but in no 
case later than December 19, 2000. As a result of the Davis County 
litigation, noted above, compliance with supplemental EG emissions 
limits for lead, sulfur dioxide, hydrogen chloride, and nitrogen oxides 
could extend until August 26, 2002, or 3 years after EPA approval of 
the 111(d)/129 plan, whichever is earlier. However, section 129(f)(2) 
of the CAA states that requirements promulgated pursuant to sections 
111 and 129 must be effective ``as expeditiously as practicable after 
approval of a State plan.'' Title 40 CFR 60.39b(c)(1) provides that any 
compliance schedule, extending more than 1 year beyond the date of EPA 
plan approval, must include measurable and enforceable increments of 
progress. The minimum increments of progress are specified in 40 CFR 
60.21(h); they include deadlines for submitting a final control plan, 
awarding of contracts for emission control systems, initiating of on-
site construction or installation of emission control equipment, 
completing of on-site construction/installation of emission control 
equipment, and final compliance. In addition, 60.39b(c)(5) requires 
that all large MWCs for which construction was commenced after June 26, 
1987 must meet the mercury and dioxins/furans emissions limitations 
within one year following issuance of a revised construction or 
operating permit, if a permit modification is required, or within one 
year following EPA approval of the State plan, whichever is later.
    The MDE has determined that source compliance with the EG emissions 
limits, including the supplemental limits, requires compliance no later 
than December 19, 2000. For any large MWC for which construction 
commenced after June 26, 1987, the MDE regulation requires compliance 
with all applicable emission standards and requirements on or before 
January 1, 1999. The MDE MWC regulation establishes interim and final 
compliance dates, as required by subpart B 60.21(h)(1), and subpart Cb 
60.39b.

H. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    The EG at 40 CFR 60.38b and 60.39b cross reference applicable MWC 
NSPS (subpart Eb) requirements relating to performance testing, 
monitoring, reporting and recordkeeping requirements that State plans 
must include. The MDE regulation meets the requirements of 40 CFR 
60.38b and 60.39b.

I. A Record of Public Hearing on the State Plan

    The public hearings on the applicable portions of the MDE MWC 
regulation, COMAR 26.11.08, were held September 17, 1997 and July 22, 
1998. The applicable portions of the regulation became effective 
November 17, 1997. The subsequent regulation amendments for large MWCs 
became effective on September 7, 1998. The State provided evidence of 
complying with public notice and other hearing requirements, including 
a record of public comments received. The 40 CFR 60.23 requirement for 
a public hearing on the 111(d)/129 plan has been met by the MDE.

J. Provision for Annual State Progress Reports to EPA

    The MDE will submit to EPA on an annual basis a report which 
details the progress in the enforcement of the MWC 111(d)/129 plan in 
accordance with 40 CFR 60.25. The first progress report will be 
submitted to EPA one year after approval of Maryland's MWC 111(d)/129 
plan.

III. Final Action

    Based upon the rationale discussed above and in further detail in 
the technical support document (TSD) associated with this action, EPA 
is approving the Maryland MWC 111(d)/129 plan for the control of MWC 
emissions from affected facilities. A copy of the TSD is available, 
upon request, from the EPA Regional Office listed in the ADDRESSES 
section of this document. Providing the Pulaski MWC facility remains 
closed, it is not subject to the COMAR 26.11.08 emission limitations, 
operator training, and compliance schedule requirements under the 
111(d)/129 plan. As provided by 40 CFR 60.28(c), any revisions to 
Maryland's MWC 111(d)/129 plan or associated regulations will not be 
considered part of the applicable plan until submitted by the State of 
Maryland 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, 
requirements.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment 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 111(d)/129 plan should 
relevant adverse or critical comments be filed. This rule will be 
effective June 22, 1999 without further notice unless the Agency 
receives relevant adverse comments by May 24, 1999. If EPA receives 
such comments, then EPA will publish a notice 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. EPA will not institute a second 
comment period on the proposed rule. Only parties interested in 
commenting on this section should do so at this time. If no such 
comments are received, the public is advised that this rule will be 
effective on June 22, 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 review under E.O. 12866, entitled ``Regulatory 
Planning and Review.'' Because today's rule does not create a mandate 
on state, local or tribal governments, it 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. This final rule 
is not subject to E.O. 13045 because it is not an economically 
significant regulatory action as defined by E.O. 12866, and it does not 
address an environmental

[[Page 19922]]

health or safety risk that would have a disproportionate effect on 
children. 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. 
Under the Regulatory Flexibility Act (RFA), because the Federal 111(d) 
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. Under Section 202 of the Unfunded Mandates 
Reform Act of 1995 (``Unfunded Mandates Act''), 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.

B. 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 this rule in today's Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

C. 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 June 22, 1999. Filing a petition for 
reconsideration by the Administrator of this final rule pertaining to 
the State of Maryland MWC 111(d)/129 plan 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: April 15, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

    40 CFR Part 62, Subpart V, is amended as follows:

PART 62--[AMENDED]

Subpart V--Maryland

    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. 62.5110, 62.5111, and 62.5112 
are added to read as follows:

Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions 
From Existing Municipal Waste Combustors With a Unit Capacity 
Greater Than 250 Tons Per Day


Sec. 62.5110  Identification of plan.

    111(d)/129 plan for municipal waste combustors (MWCs) with a unit 
capacity greater than 250 tons per day (TPD) and the associated Code of 
Maryland Regulation (COMAR 26.11.08), as submitted by the Air and 
Radiation Management Administration, Maryland Department of the 
Environment, on December 4, 1997, and as amended on October 7, 1998.


Sec. 62.5111  Identification of sources.

    The plan applies to all existing MWC facilities with a MWC unit 
capacity greater than 250 TPD of municipal solid waste.


Sec. 62.5112  Effective date.

    The effective date of the 111(d)/129 plan is June 22, 1999.
[FR Doc. 99-10229 Filed 4-22-99; 8:45 am]
BILLING CODE 6560-50-P