[Federal Register Volume 67, Number 196 (Wednesday, October 9, 2002)]
[Rules and Regulations]
[Pages 62894-62896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25685]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[MA-01-7203a; FRL -7387-5a]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the Sections 111(d)/129 State Plan originally 
submitted by the Massachusetts Department of Environmental Protection 
(MA DEP) on January 11, 1999, and revised on November 16, 2001. This 
State Plan is for implementing and enforcing provisions at least as 
protective as the federal Emission Guidelines (EGs) applicable to 
existing Municipal Waste Combustors (MWCs) units with capacity to 
combust more than 250 tons/day of municipal solid waste (MSW).

EFFECTIVE DATE: This final rule will become effective on November 8, 
2002.

ADDRESSES: Documents which EPA has incorporated by reference for 
previous rulemaking are available for public inspection at the Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, Room B102, 1301 Constitution Avenue NW., Washington, DC 20460. 
You may examine copies of materials the MA DEP submitted to EPA 
relative to this action during normal business hours at the following 
locations:

Environmental Protection Agency-New England, Region 1, Air Permits 
Program, Office of Ecosystem Protection, Suite 1100, One Congress 
Street, Boston, Massachusetts 02114-2023.
Massachusetts Department of Environmental Protection, Bureau of Waste 
Prevention, Division of Business Compliance, One Washington Street, 
Boston, Massachusetts 02108, (617) 556-1120.

    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.

FOR FURTHER INFORMATION CONTACT: John Courcier at (617) 918-1659, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?
II. Why did EPA withdraw its original approval?
III. How has EPA addressed the adverse comments on its original 
direct final approval?
IV. Why is EPA approving the State's Plan at this time?
V. When does the State Plan become effective and what becomes of the 
Federal Plan?
VI. By what date must MWCs in Massachusetts achieve compliance?
VII. Administrative Requirements

I. What Action Is EPA Taking Today?

    EPA is approving the above referenced State Plan with revisions. 
EPA finds the State Plan to be at least as protective as EPA's Emission 
Guidelines. See 40 CFR part 60, subpart Cb.

II. Why Did EPA Withdraw Its Original Approval?

    This rulemaking was originally published as a direct final notice 
in the July 14, 1999 Federal Register. See 64 FR 37923 for additional 
information. Subsequent to this notice, EPA received numerous adverse 
and supportive comments. Because of the adverse comments, EPA withdrew 
the direct final notice on September 1, 1999. See 64 FR 47680. EPA has 
responded to these adverse comments under III below.

III. How Has EPA Addressed the Adverse Comments on Its Original Direct 
Final Approval?

    As mentioned under section II above, EPA published its direct final 
and proposed approval of the State's MWC Plan, including the MWC rule, 
on July 14, 1999. The plan was to become effective on September 13, 
1999, unless EPA received adverse comment by August 13, 1999. 
Subsequently, we did receive timely comments objecting to the State's 
Plan and EPA's approval of it. Following the September 1, 1999 
withdrawal of EPA's proposed direct final approval, EPA received 
additional adverse comments as well as supportive comments. The adverse 
comments received include the following:
    [sbull] The MA DEP's mercury limit is arbitrary and has not been 
demonstrated to be consistently achievable.
    [sbull] There are no test methods that have been validated at the 
28 [mu]g/dscm level.
    [sbull] MA DEP did not provide the public with adequate notice and 
opportunity to comment, in that MA DEP modified the mercury standard to 
be more stringent after the close of the public comment period, and did 
not provide further opportunity for comment.
    The full text of written comments and EPA's responses can be found 
in the docket located at EPA's Boston office.

[[Page 62895]]

EPA will briefly address the adverse comments below:
    EPA does not find the mercury limit to be arbitrary. Units equipped 
with fabric filters and carbon injection have been shown to be capable 
of meeting the limit. Although some MWC units equipped with 
electrostatic precipitators (ESPs) have not been shown to be able to 
achieve the limit consistently, MA DEP can reasonably determine that 
well-controlled units should be able to meet the 28 [mu]g/dscm level. 
MA DEP has addressed the issue of mercury spikes based on MSW content 
by allowing facilities to average four quarterly test results to 
achieve the standard. In addition, the Plan allows ESP-controlled 
sources unable to meet the standard within the first year to apply for 
a limited waiver for periods of up to five years, to provide time to 
install and test additional control measures.
    The more stringent numerical limit, and the elimination of the 85% 
reduction option, are not contrary to Clean Air Act requirements. 
Section 129(b)(2) of the Act requires a State to submit a plan that is 
``at least as protective'' as EPA's EGs. By proposing a more stringent 
mercury standard, MA DEP has provided a standard that is at least as 
protective as the federal mercury standard. The provisions of sections 
111(d) and 129 do not prevent a State from submitting emission limits 
that are more stringent than the federal EGs. Even if the State's limit 
has not been consistently achieved by all ESP-controlled units in the 
past, the State may require such units to achieve a level of control 
that has been shown to be achievable by other municipal waste 
combustors.
    One commenter indicated that there are no approved test methods 
available for measuring mercury at and below the 28 [mu]g/dscm level. 
This commenter believes EPA can not approve a limit for which there is 
no validated test method. It is correct that Method 29 (the approved 
EPA test method for measuring mercury) has not been validated at a 
large MWC at the MA DEP's mercury level. However, Method 29 has been 
validated at both smaller MWCs and at power plants at the low levels 
being discussed here. Therefore, EPA has no reason to believe that 
Method 29 is not an appropriate test method to use in this situation.
    As required by 40 CFR 60.23(c), the State conducted public hearings 
and received comments on the State Plan. One of the comments to EPA is 
that the State should have conducted a further public process before 
adopting a standard that differed from the standard it had proposed in 
the notice of public hearing. In particular, the commenter claimed that 
the State was required to provide further opportunity for comment 
before adopting a mercury standard that differed from the proposal in 
eliminating the compliance option of 85% reduction by weight. EPA 
believes that the State has met EPA's requirement that it provide a 
public hearing on the State Plan prior to adoption. With respect to the 
adequacy of the public hearing process under Massachusetts law, the 
Massachusetts Attorney General's Office has stated that the procedures 
were adequate under the Massachusetts Administrative Procedure Act. 
Accordingly, EPA is satisfied that the State has demonstrated that it 
provided an adequate public hearing process, and that it has adequate 
legal authority to enforce the standard, in accordance with 40 CFR 
60.26(a).

IV. Why Is EPA Approving the State's Plan at This Time?

    EPA's approval of MA DEP's State Plan is based on our findings 
that:
    (1) MA DEP provided adequate public notice of, and held public 
hearings for the proposed rule-making, and Massachusetts may carry out 
and enforce its provisions which are at least as protective as the EGs 
for large MWCs, and
    (2) MA DEP 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.

V. When Does the State Plan Become Effective and What Becomes of the 
Federal Plan?

    This final rule is effective on November 8, 2002, without further 
notice. The Federal Plan is an interim action. On the effective date of 
this action, the Federal Plan will no longer apply to MWC units covered 
by the State Plan.

VI. By What Date Must MWCs in Massachusetts Achieve Compliance?

    All existing large MWC units in the Commonwealth of Massachusetts 
must now be in compliance with these requirements. The final compliance 
date was December 19, 2000.

VII. Administrative 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 action 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 action 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 action also does not have tribal implications because it will 
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). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and 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 action also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing section 111(d) State 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),

[[Page 62896]]

EPA has no authority to disapprove a State Plan submission for failure 
to use VCS. It would thus be inconsistent with applicable law for EPA, 
when it reviews a State Plan submission, to use VCS in place of a State 
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. This action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.)
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 December 9, 2002. 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 Sec.  307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Sulfur oxides, Waste treatment and disposal 
.

    Dated: September 27, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.

    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 W--Massachusetts

    2. Part 62 is amended by adding a new Sec.  62.5340 and a new 
undesignated center heading to Subpart W to read as follows:

Plan for the Control of Designated Pollutants From Existing Facilities 
(Section 111(d) Plan)


Sec.  62.5340  Identification of Plan.

    (a) Identification of Plan. Massachusetts Plan for the Control of 
Designated Pollutants from Existing Plants (Section 111(d) Plan).
    (b) The plan was officially submitted as follows:
    (1) Control of metals, acid gases, organic compounds and nitrogen 
oxide emissions from existing municipal waste combustors, originally 
submitted on January 11, 1999 and amended on November 16, 2001. The 
Plan does not include: the site assignment provisions of 310 CMR 
7.08(2)(a); the definition of ``materials separation plan'' at 310 CMR 
7.08(2)(c); and the materials separation plan provisions at 310 CMR 
7.08(2)(f)(7).
    (2) [Reserved]
    (c) Designated facilities. The plan applies to existing sources in 
the following categories of sources:
    (1) Municipal waste combustors.
    (2) [Reserved]

    3. Part 62 is amended by adding a new Sec.  62.5425 and a new 
undesignated center heading to subpart W 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.  62.5425  Identification of sources.

    (a) The plan applies to the following existing municipal waste 
combustor facilities:
    (1) Fall River Municipal Incinerator in Fall River.
    (2) Covanta Haverhill, Inc., in Haverhill.
    (3) American Ref-Fuel of SEMASS, L.P. in Rochester.
    (4) Wheelabrator Millbury Inc., in Millbury.
    (5) Wheelabrator Saugus, J.V., in Saugus.
    (6) Wheelabrator North Andover Inc., in North Andover.
    (b) [Reserved]

[FR Doc. 02-25685 Filed 10-8-02; 8:45 am]
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