[Federal Register Volume 68, Number 47 (Tuesday, March 11, 2003)]
[Proposed Rules]
[Pages 11484-11487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5748]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[CA 216-0387; FRL-7459-2]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; Large Municipal Waste Combustors; California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the California State Plan for 
implementing the emissions guidelines applicable to existing large 
municipal waste combustor units. The plan was submitted by the 
California Air Resources Board for the State of California to satisfy 
requirements of sections 111(d) and 129 of the Clean Air Act. The 
submitted plan applies to large municipal waste combustor units located 
in the San Joaquin Valley Unified Air Pollution Control District and 
South Coast Air Quality Management District. We are taking comments on 
this proposal and intend to follow with a final action.

DATE: Any comments must arrive by April 10, 2003.

ADDRESSES: Mail comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901, or e-mail to 
[email protected].
    You can inspect copies of the submitted State Plan and EPA's 
technical support document at our Region IX office during normal 
business hours. You may also see copies of the submitted State Plan at 
the following location: California Air Resources Board, Stationary 
Source Division, Rule Evaluation Section, 1001 ``I'' Street, 
Sacramento, CA 95814.

FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX, (415) 947-
4124.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Background information
    A. Under what authority is EPA proposing this action?
    B. Why did California submit a State plan?
II. The State's Submittal
    A. What facilities are covered by the Plan?
    B. What is the purpose of the submitted Plan?
III. EPA's Evaluation and Action
    A. How is EPA evaluating the Plan?
    B. Does the Plan meet the evaluation criteria?
    C. EPA recommendations to further improve the Plan
    D. Proposed action
IV. Statutory and Executive Order Reviews

I. Background

A. Under What Authority Is EPA Proposing This Action?

    Section 129 of the Clean Air Act, as amended in 1990 (CAA or the 
Act), requires EPA to develop regulations under section 111 to control 
air pollutant emissions from solid waste incineration units. Emissions 
from new municipal waste combustor (MWC) units are to be addressed by 
standards of performance for new sources (New Source Performance 
Standards or NSPS), and emissions from existing MWC units are to be 
addressed by guidelines (Emission Guidelines or EG). The Act requires 
that the MWC regulations reflect the maximum achievable control 
technology (MACT) and specifies that the emission standards for 
existing units in a category must be at least as stringent as the 
average emissions limitation achieved by the best performing 12 percent 
of units in the category (section 129(a)(2)).

[[Page 11485]]

This is commonly referred to as the ``MACT floor'' for existing MWC 
units. The Act requires that the EG for existing MWC units include 
MACT-based numerical emission limits for the following ten air 
pollutants: particulate matter (PM), opacity, sulfur dioxide 
(SO2), hydrogen chloride (HCl), oxides of nitrogen 
(NOX), carbon monoxide (CO), lead (Pb), cadmium (Cd), 
mercury (Hg), and dioxins/furans (see section 129(a)(4)). The EG must 
also include monitoring and reporting requirements and operator 
training requirements (Sec.  129(b)(1)).
    On December 19, 1995, pursuant to sections 111 and 129 of the Act, 
EPA promulgated 40 CFR part 60, subpart Cb (Emission Guidelines and 
Compliance Schedules for Municipal Waste Combustors). See 60 FR 65387. 
The EG, contained in subpart Cb, apply to existing MWC units, defined 
as MWC units for which construction was commenced on or before 
September 20, 1994.
    On April 8, 1997, the United States Court of Appeals for the 
District of Columbia Circuit vacated subpart Cb as it applies to MWC 
units with an individual capacity to combust less than or equal to 250 
tons per day (tpd) of municipal solid waste (MSW) (small MWC units) and 
all cement kilns combusting MSW, consistent with their opinion in Davis 
County Solid Waste Management and Recovery District v. EPA, 101 F.3d 
1395 (D.C. Cir. 1996), amended, 108 F.3d 1454 (D.C. Cir. 1997). As a 
result, on August 25, 1997, EPA amended subpart Cb to apply only to MWC 
units with an individual capacity to combust more than 250 tpd of MSW 
(large MWC units). See 62 FR 45116.

B. Why Did California Submit a State Plan?

    Section 129(b)(2) of the Act requires States with existing MWC 
units subject to the EG to submit plans to EPA that implement and 
enforce the EG no later than one year after promulgation of the EG. 
Accordingly, State plans were due on December 19, 1996 (See also 40 CFR 
60.39(b)). The court decision vacating the EG requirements for small 
MWC units and cement kilns did not affect the due date or the required 
content of State plans for large MWC units.\1\ For existing large MWC 
units located in States that have not submitted an approvable plan 
within two (2) years of promulgation of the EG (i.e., December 19, 
1997), section 129(b)(3) of the Act requires EPA to adopt a Federal 
Plan to implement and enforce the EG. On November 12, 1998, EPA 
promulgated a Federal Plan for existing large MWC units not covered by 
an EPA-approved State plan, codified at 40 CFR part 62, subpart FFF. 
See 63 FR 63191. Any MWC units covered by a State plan submitted after 
December 19, 1997, are subject to the Federal Plan until EPA approves 
the State plan. California's State Plan (the Plan) was submitted by the 
California Air Resources Board (CARB) on September 23, 1998.
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    \1\ The vacatur of subpart Cb as it applies to small MWC units 
and cement kilns required EPA to reevaluate the emission limits for 
large MWC units. In the August 25, 1997, amendments to subpart Cb, 
EPA revised the emission limits for the following four pollutants: 
lead, hydrogen chloride, sulfur dioxide, and nitrogen oxides. 
Pursuant to section 129(b)(2) of the Act, State plans incorporating 
the revised limits were due on August 25, 1998. See also 40 CFR 
60.39b(e).
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II. The State's Submittal

A. What Facilities Are Covered by the Plan?

    According to CARB, there are only three facilities with existing 
large MWC units in the State. One of these facilities is located in the 
San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD), 
and two facilities are located in South Coast Air Quality Management 
District (SCAQMD). Both air districts are using district operating 
permits, containing the requirements of the EG, as the enforceable 
mechanisms to implement the EG. The following table identifies the 
three MWC facilities (six large MWC units) covered by the State Plan 
and the corresponding permits issued by the districts. If there are 
additional MWC units that meet the applicability criteria of subpart Cb 
but are not identified in the State Plan inventory, then the Federal 
Plan would apply to them.

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            District/facility                         Permit Nos.                        Date of issue
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SJVUAPCD: Stanislaus Resource Recovery    PTO N-2073-1-7                      August 27, 2001.\c\
 Facility (2 units).
SCAQMD:
    Commerce Refuse to Energy Authority   PTO R-D96114 \a\                    May 7, 1998.
     (1 unit).                            PTO R-D96066 \b\                    May 7, 1998.
    Southeast Resource Recovery Facility  PTO R-D87714 \a\                    May 19, 1998.
     (3 units).                           PTO R-D87608 \b\                    May 29, 1998.
                                          PTO R-D87716 \a\                    May 19, 1998.
                                          PTO R-D87609 \b\                    May 29, 1998.
                                          PTO R-D87717 \a\                    May 19, 1998.
                                          PTO R-D87610 \b\                    May 29, 1998.
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\a\ Resource recovery system permit
\b\ Air pollution control system permit
\c\ CARB's original State Plan submittal included PTO N-2073-1-2, issued on March 12, 1998. On May 2, 2002, CARB
  forwarded PTO N-2073-1-7, issued on August 27, 2001, to replace the expired PTO N-2073-1-2.

B. What is the Purpose of the Submitted Plan?

    The California State Plan was submitted to satisfy the requirements 
of sections 111(d) and 129 of the Act, and to implement the EG 
contained in 40 CFR, part 60, subpart Cb. The Plan implements the 
emission limits established in the EG for organics (dioxins/furans), 
metals (cadmium (Cd), lead (Pb), mercury (Hg), particulate matter (PM), 
and opacity), acid gases (hydrogen chloride (HCl) and sulphur dioxide 
(SO2)), nitrogen oxides (NOX), and fugitive ash 
emissions. These pollutants can cause adverse effects to public health 
and the environment. The Plan also implements the EG requirements for 
MWC operating practices, which include requirements for carbon monoxide 
(CO) emissions, load, PM control device inlet flue gas temperature, and 
operator training/certification.

III. EPA's Evaluation and Action

A. How Is EPA Evaluating the Plan?

    Under section 111(d) of the Act, EPA has established general 
procedures, codified at 40 CFR part 60, subpart B, that States must 
follow in adopting and submitting State plans. The following provides a 
brief discussion of the

[[Page 11486]]

requirements, found in subparts B and Cb, for an approvable State plan 
for existing large MWC units and EPA's review of the California State 
Plan with respect to those requirements. A detailed discussion of the 
Plan and EPA's evaluation can be found in the Technical Support 
Document (TSD) for the California Plan (February 2003).
1. Identification of Enforceable State Mechanism for Implementing the 
EG
    Subpart B at 40 CFR 60.24(a) requires that the State 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.'' In the State of California, local 
air quality management and air pollution control districts (districts) 
have primary responsibility for control of stationary air pollution 
sources, such as MWC units. Therefore, each district with existing 
large MWC units is required to develop a regulation or other 
enforceable mechanism to implement the EG. The SJVUAPCD and SCAQMD are 
using district operating permits, containing the requirements of the 
EG, as the enforceable mechanisms. The conditions of these submitted 
permits will remain in effect as part of the State Plan until a 
revision to the Plan is approved. Expiration of a district operating 
permit, or revisions to permit conditions, will not automatically 
revise the State Plan. Any revisions to the Plan must be submitted to 
EPA for review and approval as a section 111(d)/129 state plan 
revision.
2. Demonstration of Legal Authority
    Subpart B at 40 CFR 60.26 requires that the State plan demonstrate 
that the State has legal authority to adopt and implement the emission 
standards and compliance schedules contained in the plan. The State's 
Attorney General has certified that the State of California and the 
districts have sufficient legal authority to develop the State plan to 
implement the EG. In addition, the State's Attorney General has 
certified that the districts have the authority to modify existing 
district operating permits and incorporate the EG requirements. The 
State statutes providing such authority are contained in the California 
Health and Safety Code (H&SC).
3. Inventory of Existing MWCs in the State Affected by the State Plan
    Subpart B at 40 CFR 60.25(a) requires that the State plan include a 
complete source inventory of all designated facilities regulated by the 
EG: existing MWC units (i.e., those MWC units constructed prior to 
September 20, 1994) with the capacity to combust greater than 250 tpd 
of MSW (see 40 CFR 60.32b(a)). CARB has submitted an inventory of all 
existing large MWC units in California as part of the State Plan. These 
facilities were identified in the table shown in Section II.A of this 
document.
4. Inventory of Emissions From Existing MWCs in the State
    Subpart B at 40 CFR 60.25(a) requires that the State plan include 
an emissions inventory that estimates emissions of the designated 
pollutant regulated by the EG: MWC emissions. For each affected MWC 
facility, the California State Plan contains information on estimated 
MWC emission rates (in tpy) for the nine regulated pollutants: dioxins/
furans, Cd, Pb, Hg, PM, HCl, SO2, NOX, and CO. 
These estimated emission rates are based on stack test data and 
continuous emission monitoring data.
5. Emission Standards for MWCs
    Subpart B at 40 CFR 60.24(c) specifies that the State plan must 
include emission standards that are no less stringent than the EG, and 
section 129(b)(2) of the Act requires that State plans be ``at least as 
protective'' as the EG. The district operating permits specify emission 
standards that are consistent with and ``at least as protective'' as 
those in Subpart Cb, as amended.
6. Compliance Schedules
    Subpart B at 40 CFR 60.24(a) requires that the State plan include a 
compliance schedule that owners and operators of affected MWC units 
must meet in complying with the requirements of the plan. Subpart Cb at 
40 CFR 60.39b requires that final compliance with the requirements of 
the EG be accomplished by no later than December 19, 2000.\2\ For any 
compliance schedule extending more than 12 months beyond the date 
required for submittal of the State plan (December 19, 1996), 40 CFR 
60.24(e)(1) requires that the compliance schedule include enforceable 
increments of progress toward compliance, as specified in 60.21(h)(1). 
The district operating permits establish interim and final compliance 
dates, as required by 60.24(e)(1) and 60.39(b). However, the SJVUAPCD 
permit for the Stanislaus Resource Recovery Facility does not require 
final compliance with all requirements of the EG by December 19, 2000. 
As discussed in the TSD, the Stanislaus facility is currently subject 
to the Federal Plan and should already be in compliance. Approval of 
the State Plan will not extend the compliance dates contained in the 
Federal Plan.
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    \2\ As discussed in footnote 1, the amended subpart Cb contains 
revised emission limits for lead, hydrogen chloride, sulfur dioxide, 
and nitrogen oxides. 40 CFR 60.39b(f) requires compliance with these 
limits by no later than August 26, 2002. However, the Federal Plan 
requires compliance with the applicable revised limits by December 
19, 2000.
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7. Testing, Monitoring, Recordkeeping and Reporting Requirements
    Subpart Cb at 40 CFR 60.38b and 60.39b requires that the State plan 
contain applicable 40 CFR part 60, subpart Eb (MWC NSPS) requirements 
relating to performance testing, monitoring, reporting and 
recordkeeping. The district operating permits meet the requirements of 
60.38b and 60.39b. However, as explained in the TSD, the SJVUAPCD 
permit contains language that is potentially confusing regarding the 
federal enforceability of certain conditions. EPA expects the facility 
to conduct annual tests in accordance with the district permit 
conditions and in accordance with 60.58b. Approval of the Plan does not 
relieve the facility from any testing requirements. Requirements 
contained in the State Plan become federally enforceable once the Plan 
is approved.
8. A Record of Public Hearings on the State Plan
    Subpart B at 40 CFR 60.23 contains the requirements for public 
participation that must be met by the State in adopting a State plan. 
California fulfilled the public participation requirements for the 
State plan through separate district public participation and 
notification processes. CARB included documents in the Plan submittal 
demonstrating that the districts met the requirements by providing 
public notice of the Plan and the opportunity for public hearings on 
the Plan.\3\
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    \3\ SJVUAPCD provided 30-day notice on March 16, 1998 of a 
public hearing held on April 16, 1998, on its portion of the State 
plan. SCAQMD provided public notice on February 19, 1998, of the 
opportunity for a public hearing to be held on March 26, 1998, if 
requested. SCAQMD did not hold a hearing because the district 
received no requests.
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9. Submittal of Annual State Progress Reports to EPA
    Subpart B at 40 CFR 60.25(e) and (f) requires States to submit to 
EPA annual reports on the progress of plan enforcement. The first 
progress report must be submitted by the State one year after EPA 
approval of the State plan.

[[Page 11487]]

    In summary, EPA finds that the California State Plan meets the 
requirements applicable to such plans in 40 CFR part 60, subparts B and 
Cb.

B. Does the Plan Meet the Evaluation Criteria?

    We believe the Plan is consistent with the relevant policy and 
guidance regarding approval of CAA section 111(d)/129 State plans. The 
TSD describes in detail the discrepancies between the Plan and the EG 
regarding waivers, floating compliance dates, and testing requirements. 
EPA has determined that these discrepancies in the submitted Plan have 
limited impact because of the following reasons:
    1. Waivers: The underlying federal conditions in the EG and Federal 
Plan will continue to apply in the case of waivers. EPA cannot delegate 
to districts the ability to approve waivers of load and temperature 
limits that are not in accordance with the purposes specified in 
60.53b(b) and (c). Waivers of operator training course requirements 
must be approved by EPA, and as of this date, EPA Region 9 has not 
received any such requests.
    2. Floating compliance dates: The final dates of compliance for the 
Stanislaus facility, as contained in the Federal Plan, have already 
passed and thus the facility should already be in compliance. Approval 
of the State Plan will not extend the compliance dates contained in the 
Federal Plan. The facility is subject to the Federal Plan until the 
State Plan approval becomes effective.
    3. Testing requirements: The Stanislaus permit does contain the 
appropriate requirements for source testing, but it does not cite to 
the EG for these provisions. The permit contains language that is 
potentially confusing regarding federal enforceability of certain 
conditions. After a State incorporates a requirement in the State Plan 
and the State Plan is approved by EPA, the State requirement becomes 
federally enforceable.

C. EPA Recommendations To Further Improve the Plan

    The TSD describes additional revisions that do not affect EPA's 
current action but are recommended for the next time the local agencies 
modify the facility permits.

D. Proposed Action

    Based on the rationale discussed above and in further detail in the 
TSD, EPA is proposing approval of the State of California section 
111(d)/129 plan for the control of emissions from existing large MWC 
units. Until the State Plan receives final approval, the sources 
covered by this plan will remain subject to the Federal Plan. The 
compliance schedules contained in the Federal Plan (40 CFR part 62, 
subpart FFF) will continue to apply to the Stanislaus Resource Recovery 
Facility. As provided by 40 CFR 60.28(c), any revisions to the 
California State Plan will not be considered part of the applicable 
plan until submitted by CARB 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. We will accept comments from the public on this proposal 
for the next 30 days. Unless we receive significant new information 
during the comment period, we intend to publish a final approval action 
that will make the State Plan requirements federally enforceable.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 proposed 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 proposed 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 proposed 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 proposes to 
approve 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). This action merely proposes to approve a 
State plan implementing a Federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This proposed 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 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), 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 
proposed 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.).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfuric acid plants, Waste treatment and disposal.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: February 19, 2003.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 03-5748 Filed 3-10-03; 8:45 am]
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