[Federal Register Volume 66, Number 161 (Monday, August 20, 2001)]
[Rules and Regulations]
[Pages 43509-43511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20892]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[PA118-4120a; FRL-7038-6]


Approval and Promulgation of Air Quality Implementation Plans for 
Designated Facilities and Pollutants; Pennsylvania; Conversion of the 
Conditional Approval of the Pennsylvania Large Municipal Waste 
Combustor (MWC) Plan to Full Approval

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to convert its conditional 
approval of the Commonwealth of Pennsylvania's large municipal waste 
combustor (MWC) plan submitted by the Pennsylvania Department of 
Environmental Protection (PADEP) to a full approval. EPA is converting 
its conditional approval to a full approval because the PADEP submitted 
a revision to the plan which satisfies the condition imposed by EPA in 
its conditional approval. That condition required the Commonwealth to 
submit an expeditious compliance schedule for the supplemental 
emissions guideline (EG) limits promulgated on August 25, 1997. This 
action converting EPA's conditional approval of the Pennsylvania plan 
to a full approval is being taken under the Clean Air Act (CAA).

DATES: This rule is effective on October 4, 2001 without further 
notice, unless EPA receives adverse written comment by September 19, 
2001. If EPA receives such comments, it 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 mailed to David L. Arnold, Chief, 
Air Quality Planning and Information Services Branch, Mailcode 3AP21, 
U.S. 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 Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; 
and Pennsylvania Department of Environmental Protection, Bureau of Air 
Quality, Rachel Carson State Office Building, 400 Market Street, 
Harrisburg, Pennsylvania 17105-8465.

FOR FURTHER INFORMATION CONTACT: James B. Topsale (215) 814-2190 at the 
EPA Region III address above, or by e-mail at [email protected]. 
Please note that while questions may be posed via telephone and e-mail, 
formal 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).
    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 and 65415. Subparts Eb and Cb regulate MWC emissions. 
Emissions from MWCs contain organics (dioxins/furans), metals (cadmium, 
lead, mercury), acid gases, (hydrogen chloride, sulfur dioxide, and 
nitrogen oxides), and particulate matter, including opacity.
    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 the capacity to combust 250 tons per day (TPD) or 
less than of municipal solid waste (MSW), 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 were amended to apply only to 
MWC

[[Page 43510]]

units with the capacity to combust more than 250 TPD of MSW per unit 
(i.e., large MWC units). Also, the amended EG made minor revisions to 
the emissions limitations for four pollutants--hydrogen chloride, 
sulfur dioxide, nitrogen oxides, and lead. The amended requirements of 
the NSPS and EG were published in the Federal Register on August 25, 
1997. See 62 FR 45119 and 45124 for the EG amendments.
    As a result of the Davis County litigation, noted above, compliance 
with supplemental EG emissions limits for hydrogen chloride, sulfur 
dioxide, nitrogen oxides, and lead 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.'' As 
required by section 129(b)(3) of the CAA, on November 12, 1998 EPA 
promulgated a Federal Implementation Plan (FIP) for large MWCs that 
commenced construction on or before September 20, 1994. The FIP is a 
set of emissions limits, compliance schedules, and other requirements 
that implement the EG for MWC, as amended. The FIP is applicable to 
those large existing MWCs not specifically covered by an approved State 
plan under sections 111(d) and 129 of the CAA. Also, it fills a Federal 
enforceability gap until State plans are approved and ensures that the 
MWC units stay on track to complete, in an expeditious manner, required 
pollution control equipment retrofits on or before the final statutory 
compliance date of December 19, 2000.
    On August 23, 1999 (64 FR 45880), EPA promulgated a conditional 
approval of Pennsylvania's large MWC 111(d)/129 plan. The conditionally 
approved Pennsylvania plan requires compliance with the original 1995 
EG emissions limits by a date no later than December 19, 2000, and 
compliance with the 1997 EG supplemental emissions limits by a date no 
later than August 26, 2002, or 3 years after EPA approval of the 
111(d)/129 plan, whichever is earlier. After considering the 
requirements of section 129(f)(2) and the FIP, including the related 
background information document (#0106-00-002-002, August 20, 1998), 
EPA determined that the final compliance dates for the supplemental 
emissions limits, as stipulated in the Pennsylvania 111(d)/129 plan's 
Federally enforceable state operating permits (FESOPs) and source-
specific plan approval (i.e., construction permit), were not 
expeditious. The conditionally approved Pennsylvania plan contains no 
economic, technical, or other rationale to justify a compliance date 
extension until August 26, 2002 for the supplemental emissions limits. 
Accordingly, EPA considered the plan's interim and final compliance 
schedules approvable for the original 1995 EG emissions limits, but not 
the final compliance schedule (August 26, 2002, or 3 years after EPA 
approval of the state plan, whichever is earlier) for the 1997 
supplemental emissions limits. See 62 FR 45116.
    As previously stated, EPA promulgated a conditional approval of 
Pennsylvania's large MWC 111(d)/129 plan on August 23, 1999 (64 FR 
45880). To fulfill the condition imposed by EPA, PADEP was required to 
amend the affected facility operating permits, as necessary, and 
include a final compliance date, no later than December 19, 2000, for 
the supplemental limits; and then submit the amended permits, as a 
111(d)/129 plan revision, to EPA by August 22, 2000.

II. Summary of Pennsylvania's MWC 111d/129 Plan Revision and EPA's 
Evaluation

    On July 7, 2000, PADEP formally submitted the required compliance 
schedule revisions through the use of amended operating permits. EPA 
has determined that PADEP has satisfied the condition imposed in the 
August 23, 1999 conditional approval. In addition, on August 15, 2000, 
the PADEP provided supplemental information that clarifies certain 
Lancaster County Solid Waste Management Authority operational 
requirements for its resource recovery facility's dry lime injection 
system and the determination of sulfur dioxide and hydrogen chloride 
percent emission reductions in the combustor units.

III. Final Action

    EPA is approving the revision to the Commonwealth's MWC 111d/129 
plan submitted by PADEP on July 7, 2000 which requires compliance with 
the supplemental emissions limits by a date no later than December 19, 
2000. As a result of this approval, the conditional nature of EPA's 
August 23, 1999 approval of the Pennsylvania large MWC 111(d)/129 plan 
is, hereby, removed and converted to a full approval. Also, EPA accepts 
the PADEP explanation regarding the operational requirements, noted 
above, for the Lancaster County Solid Waste Management Authority MWC 
facility. This action is being published without prior proposal because 
we view this as a noncontroversial amendment and because we anticipate 
no adverse comments. In a separate document in the ``Proposed Rules'' 
section of this Federal Register publication, we are proposing to 
approve the plan revision. This action will be effective without 
further notice unless we receive relevant adverse comment by September 
19, 2001. If we receive such comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule. Any parties 
interested in commenting must do so at this time. EPA will not 
institute a second comment period. If no such comments are received by 
September 19, 2001, you are advised that this action will be effective 
on October 4, 2001.

IV. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, (May 22, 2001). This 
action merely approves state law as meeting Federal requirements and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. Because this 
rule approves pre-existing requirements under state law and does not 
impose any additional enforceable duty beyond that required by state 
law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and

[[Page 43511]]

responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant. In reviewing 111(d)/129 
plan submissions, EPA's role is to approve state choices, provided that 
they meet the criteria of the Clean Air Act. In this context, in the 
absence of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a 111(d)/129 submission, to use 
VCS in place of a 111(d)/129 plan submission that otherwise satisfies 
the provisions of the Clean Air Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.

B. 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).

C. 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 October 19, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
converting EPA's conditional approval of the Commonwealth of 
Pennsylvania's 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, Air pollution control, Carbon monoxide, 
Hydrocarbons, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

    Dated: August 10, 2001.
 Judith Katz,
Acting Regional Administrator, Region III.

     40 CFR part 62 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 NN--Pennsylvania

    2. Section 62.9640 is revised to read as follows:


Sec. 62.9640  Identification of plan.

    The 111(d)/129 plan for municipal waste combustors (MWC) units with 
a capacity greater than 250 tons per day (TPD) and the associated 
Pennsylvania Department of Environmental Protection operating permits 
that were submitted to EPA on April 27, 1998, and as amended on 
September 8, 1998, and July 7, 2000, including supplemental information 
dated August 15, 2000. All affected facilities must achieve full 
compliance with all 111(d)/129 plan requirements on or before December 
19, 2000.

    3. Section 62.9642 is revised to read as follows:


Sec. 62.9642  Effective dates.

    (a) The effective date of the submitted 1998 111(d)/129 plan is 
October 22, 1999.
    (b) The effective date of the submitted 2000 111(d)/129 plan 
revision is October 4, 2001.

[FR Doc. 01-20892 Filed 8-17-01; 8:45 am]
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