[Federal Register Volume 68, Number 27 (Monday, February 10, 2003)]
[Rules and Regulations]
[Pages 6630-6633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2540]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[NH-51-7175a; FRL -7447-7]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: New Hampshire; Plan for Controlling MWC 
Emissions From Existing Municipal Waste Combustors

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 New 
Hampshire Department of Environmental Services (NH DES) on August 16, 
2002. This State Plan is for implementing and enforcing provisions at 
least as protective as the federal Emission Guidelines (EGs) applicable 
to existing large and small Municipal Waste Combustion (MWC) units.

DATES: This rule is effective on April 11, 2003 without further notice 
unless EPA receives significant adverse comment by March 12, 2003. If 
EPA receives such comments, we will publish a timely withdrawl of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Comments must be submitted to Mr. Steven Rapp, Chief, Air 
Permits, Toxics & Indoors Programs Unit, Office of Ecosystem 
Protection, U.S. EPA, One Congress Street, Suite 1100 (CPA), Boston, 
Massachusetts 02114-2023. You may examine copies of materials relevant 
to this action during normal business hours, by appointment at the 
following locations:

Environmental Protection Agency-New England, Region 1, Air Permits, 
Toxics & Indoor Programs, Office of Ecosystem Protection, Suite 1100, 
One Congress Street, Boston, Massachusetts 02114-2023.
New Hampshire Department of Environmental Services, Air Resources 
Division, 6 Hazen Drive, P.O. Box 95, Concord, New Hampshire 03302-
0095.

    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.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?
II. Why Does EPA Want To Regulate Air Emissions From MWCs?
III. When did EPA first publish these requirements?
IV. Who must comply with the requirements?
V. Are any sources exempt from the requirements?
VI. By what date must MWCs in New Hampshire achieve compliance?
VII. What happens if an MWC does not/cannot meet the requirements by 
the final compliance date?
VIII. What options are available to operators if they cannot achieve 
compliance within one year of the effective date of the State Plan?
IX. What Is a State Plan?
X. What did the state submit as part of its State Plan?
XI. Why Is EPA Approving New Hampshire's State Plan?
XII. Why does EPA need to approve State Plans?
XIII. Regulatory Assessment Requirements

I. What Action Is EPA Taking Today?

    EPA is approving the above referenced State Plan which New 
Hampshire submitted on August 16, 2002 for the control of air emissions 
from existing large (units with an individual capacity greater than 250 
tons per day) and small (units with an individual capacity of 250 tons 
per day or less) MWCs throughout the State.
    EPA is publishing this approval 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 EPA receives no 
significant, material, and adverse comments by March 12, 2003, this 
action will be effective April 11, 2003.
    If EPA receives significant, material, and adverse comments by the 
above date, the Agency will withdraw this action before the effective 
date by publishing a subsequent document in the Federal Register that 
will withdraw this final action. EPA will address all public comments 
received in a subsequent final rule based on the parallel proposed rule 
published in today's Federal Register. 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.

II. Why Does EPA Want To Regulate Air Emissions From MWCs?

    When burned, municipal solid wastes emit various air pollutants, 
including hydrochloric acid, dioxin/furan, toxic metals (lead, cadmium, 
and mercury) and particulate matter. Mercury is highly hazardous and is 
of particular concern because it persists in the environment and 
bioaccumulates through the food web. Serious developmental and adult 
effects in humans, primarily damage to the nervous system, have been 
associated with exposures to mercury. Harmful effects in wildlife have 
also been reported; these include nervous system damage and behavioral 
and reproductive deficits. Human and wildlife exposure to mercury occur 
mainly through eating of fish. When inhaled, mercury vapor attacks also 
the lung tissue and is a cumulative poison. Short-term exposure to 
mercury in certain forms can cause hallucinations and impair 
consciousness. Long-term exposure to mercury in certain forms can 
affect the central nervous system and cause kidney damage.
    Exposure to particulate matter can aggravate existing respiratory 
and cardiovascular disease and increase risk of premature death. 
Hydrochloric acid is a clear colorless gas. Chronic exposure

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to hydrochloric acid has been reported to cause gastritis, chronic 
bronchitis, dermatitis, and photosensitization. Acute exposure to high 
levels of chlorine in humans may result in chest pain, vomiting, toxic 
pneumonitis, pulmonary edema, and death. At lower levels, chlorine is a 
potent irritant to the eyes, the upper respiratory tract, and lungs.
    Exposure to dioxin and furan can cause skin disorders, cancer, and 
reproductive effects such as endometriosis. These pollutants can also 
affect the immune system.

III. When Did EPA First Publish These Requirements?

    The EPA originally promulgated the EGs for large and small MWCs on 
December 19, 1995. However, the EGs for the small MWCs were vacated by 
the U.S. Court of Appeals for the District of Columbia Circuit in March 
1997. In response to the Court's decision, EPA again proposed the small 
MWC emission guidelines on August 30, 1999. On December 19, 1995 and 
December 6, 2000, according to sections 111 and 129 of the Clean Air 
Act (Act), the EPA published the final form of the EGs applicable to 
existing large and small MWCs, respectively. The EGs are at 40 CFR part 
60, subparts Cb (large MWCs) and BBBB (small MWCs). See 60 FR 65382 
(large) and 65 FR 76378 (small) and the Background section.

IV. Who Must Comply With the Requirements?

    All large MWCs that commenced construction before December 19, 
1995, and all small MWCs that commenced construction on or before 
August 30, 1999 must comply with these requirements.

V. Are Any Sources Exempt From the Requirements?

    The following incinerator source categories are exempt from the 
federal requirements for small MWCs:
    (1) Small MWC units that combust less than 11 tons per day.
    (2) Small power production facilities.
    (3) Cogeneration facilities.
    (4) MWC units that combust only tires.
    (5) Hazardous waste combustion.
    (6) Materials recovery units.
    (7) Co-fired units.
    (8) Plastics/rubber recycling units.
    (9) Units that combust fuels made from products of plastics/rubber 
recycling plants.
    (10) Cement kilns.
    (11) Air curtain incinerators.
    Please refer to 40 CFR 60.1555 for specific definitions of these 
incinerator source categories, and any recordkeeping or other 
requirements that still may need to be met.

VI. By What Date Must MWCs in New Hampshire Achieve Compliance?

    All existing large MWCs must now be in compliance. The final 
compliance date for large MWCs was December 19, 2000. All existing 
small MWC units in the State of New Hampshire must comply with these 
requirements by December 6, 2005.

VII. What Happens If a Small MWC Does Not/Cannot Meet the Requirements 
by the Final Compliance Date?

    Any existing small MWC that fails to meet the requirements by 
December 6, 2005 must shut down. The unit will not be allowed to start 
up until the owner/operator installs the controls necessary to meet the 
requirements.

VIII. What Options Are Available to Operators if They Cannot Achieve 
Compliance Within One Year of the Effective Date of the State Plan?

    If a small MWC cannot achieve compliance within one year of the 
effective date of EPA approval of the State Plan, the operator must 
agree to meet certain increments of progress until they achieve 
compliance. The State Rule details the increments of progress for the 
affected small MWCs.

IX. What Is a State Plan?

    Section 111(d) of the Act requires that pollutants controlled under 
NSPS must also be controlled at older sources in the same source 
category. Once an NSPS is issued, EPA then publishes an EG applicable 
to the control of the same pollutant from existing (designated) 
facilities. States with designated facilities must then develop State 
Plans to adopt the EGs into their body of regulations. States must also 
include in their State Plans other elements, such as inventories, legal 
authority, and public participation documentation, to demonstrate their 
ability to enforce the State Plans.

X. What Did the State Submit as Part of Its State Plan?

    The State of New Hampshire submitted its sections 111(d)/129 State 
Plan to EPA for approval on August 16, 2002. The State adopted the EG 
requirements into the New Hampshire Code of Administrative Rules Env-A-
3300, ``Municipal Waste Combustion'' on June 7, 2002. The State Plan 
contains:
    1. A demonstration of the State's legal authority to implement the 
State Plan.
    2. New Hampshire Rule CHAPTER Env-A-3300, ``Municipal Waste 
Combustion'' as the enforceable mechanism.
    3. An inventory of the sources on pages 5 and 6 of the State Plan.
    4. An emissions inventory on pages 6 and 7 of the State Plan.
    5. Emission limits, at least as protective as the limits found 
under Subparts Cb and DDDD, that are contained in Env-A-3303. (Please 
note that the State's mercury limit of 0.028 ug/dscm is more stringent 
than EPA's EG.)
    6. Provisions for compliance schedules that are contained in Env-A-
3308.
    7. Testing, monitoring, and inspection requirements that are 
contained in Env-A-3306.
    8. Reporting and Recordkeeping requirements that are contained in 
Env-A-3307.
    9. Operator training and qualification requirements that are 
contained in Env-A-3305.
    10. A record of the public notice and hearing requirements that are 
contained in Appendices E and F of the State Plan.
    11. Provisions for state progress reports to EPA that are contained 
on page 10 of the State Plan.
    12. A final compliance date of December 6, 2005.

XI. Why Is EPA Approving New Hampshire's State Plan?

    EPA has evaluated the MWC State Plan submitted by New Hampshire for 
consistency with the Act, EPA guidelines and policy. EPA has determined 
that New Hampshire's State Plan meets all requirements and, therefore, 
EPA is approving New Hampshire's Plan to implement and enforce the EGs, 
as it applies to existing Large and Small MWCs.
    EPA's approval of New Hampshire's State Plan is based on our 
findings that:
    (1) NHDES provided adequate public notice of public hearings for 
the proposed rule-making that allows New Hampshire to carry out and 
enforce provisions that are at least as protective as the EGs for Large 
and Small MWCs, and
    (2) NHDES 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

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owners and operators; and make emission data publicly available.
    A detailed discussion of EPA's evaluation of the State Plan is 
included in the technical support document (TSD) located in the 
official file for this action and available from the EPA contact listed 
above. The State Plan meets all of the applicable approval criteria.

XII. Why Does EPA Need To Approve State Plans?

    Under section 129 of the Act, EGs are not federally enforceable. 
Section 129(b)(2) of the Act requires states to submit State Plans to 
EPA for approval. Each state must show that its State Plan will carry 
out and enforce the emission guidelines. State Plans must be at least 
as protective as the EGs, and they become federally enforceable upon 
EPA's approval.
    The procedures for adopting and submitting State Plans are in 40 
CFR part 60, subpart B. EPA originally issued 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.

XIII. Regulatory Assessment 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 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 rule 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 sections 111(d)/129 State Plans, 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 state plan for failure to use VCS. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a state plan, to use VCS in place of a 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 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.)
    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 April 11, 2003. Interested 
parties should 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. 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).)

List of Subjects in 40 CFR Part 62

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

    Dated: January 23, 2003.
Robert W. Varney,
Regional Administrator, EPA New England.

    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:

    Authority: 42 U.S.C. 7401-7671q.

Subpart EE--New Hampshire

    2. Part 62 is amended by adding a new Sec.  62.7325(b)(4) and 
(c)(4) to subpart EE to read as follows:

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


Sec.  62.7325  Identification of plan.

* * * * *
    (b) * * *
    (4) Control of air emissions from existing large and small 
municipal waste combustors, submitted on August 16, 2002.
    (c) * * *
    (4) Municipal waste combustors.
    (i) Large MWCs with a capacity greater than 250 tons per day.
    (ii) Small MWCs with a capacity of 250 tons per day or less.
    3. Part 62 is amended by adding a new Sec.  62.7460 and a new 
undesignated

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center heading to subpart EE to read as follows:

Air Emissions From Existing Large and Small Municipal Waste Combustors


Sec.  62.7460  Identification of sources.

    (a) The plan applies to the following existing large municipal 
waste combustor:
    (1) The Wheelabrator Concord Co., L.P. in Penacook.
    (2) [Reserved]
    (b) The plan applies to the following existing small municipal 
waste combustor:
    (1) The Wheelabrator Claremont Co., L.P. in Claremont.
    (2) [Reserved]

[FR Doc. 03-2540 Filed 2-7-03; 8:45 am]
BILLING CODE 6560-50-P