[Federal Register Volume 68, Number 49 (Thursday, March 13, 2003)]
[Rules and Regulations]
[Pages 11978-11981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5908]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region II Docket No. NY58-253a, FRL-7464-8]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve the State plan submitted by New York State to 
implement and enforce the Emission Guidelines (EG) for existing small 
Municipal Waste Combustion (MWC) Units. New York's plan establishes 
emission limits and other requirements for the purpose of reducing 
toxic air emissions from small MWC units throughout the State. New York 
submitted its plan to fulfill the requirements of sections 111(d) and 
129 of the Clean Air Act.

DATES: This direct final rule is effective on May 12, 2003 without 
further notice, unless EPA receives adverse comment by April 14, 2003.
    If EPA receives such comment, EPA will publish a timely withdrawal 
in the Federal Register informing the public that this rule will not 
take effect.

ADDRESSES: All comments should be addressed to: Raymond Werner, Chief, 
Air Programs Branch, Environmental Protection Agency, Region II Office, 
290 Broadway, New York, New York 10007-1866.
    Copies of the state submittal is available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division of 
Air Resources, 625 Broadway, 2nd Floor, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the SUPPLEMENTARY INFORMATION section:

I. EPA Action
    A. What action is EPA taking today?
    B. Why is EPA taking this action?
    C. Who is affected by New York's State plan?
    D. How does this approval affect sources located in Indian 
Nation Land?
    E. How does this approval relate to the Federal plan?
II. Background
    A. What is a State plan?
    B. What is a small MWC State plan?
    C. Why is EPA requiring New York to submit a small MWC State 
plan?
    D. What are the requirements for a small MWC State plan?
III. New York's State Plan
    A. What is contained in the New York State plan?
    B. What approval criteria did we use to evaluate New York's 
State plan?
IV. EPA's Rulemaking Action
V. Statutory and Executive Order Reviews

I. EPA Action

A. What Action Is EPA Taking Today?

    EPA is approving New York's State plan, submitted on October 22, 
2002, for the control of air emissions from existing small Municipal 
Waste Combustion (MWC) units throughout the State, except for those 
small MWCs located on Indian Nation land. New York submitted its plan 
to fulfill the requirements of section 111(d) and 129 of the Clean Air 
Act (CAA). The State plan adopts and implements the Emission Guidelines 
(EG) applicable to existing small MWCs, and establishes emission limits 
and other requirements for units constructed on or before August 30, 
1999. This approval, once effective, will make the New York small MWC 
rules included in the State plan federally enforceable.

B. Why Is EPA Taking This Action?

    EPA has evaluated New York's small MWC State plan for consistency 
with the CAA, EPA guidelines and policy. EPA has determined that New 
York's State plan meets all requirements and therefore, EPA is 
approving New York's State plan to implement and enforce the EG 
applicable to existing small MWCs.

C. Who Is Affected by New York's State Plan?

    New York's State plan regulates all the units designated by the EG 
for existing small MWCs which commenced construction on or before 
August 30, 1999 and which have the capacity to combust at least 35 tons 
per day of municipal solid waste or refuse-derived fuel but no more 
than 250 tons per day of municipal solid waste or refuse-derived fuel. 
If the owner or operator of a small MWC made changes after June 6, 
2001, that meet the definition of modification or reconstruction for 
subpart AAAA (New Source Performance Standards for New Small Municipal 
Waste Combustion Units) of 40 CFR part 60, the small MWC unit becomes 
subject to subpart AAAA and the State plan no longer applies to that 
unit.

D. How Does This Approval Affect Sources Located in Indian Nation Land?

    New York's State plan does not cover units located in Indian Nation 
Land. Therefore, any units located in Indian Nation Land will be 
subject to the Federal plan, subpart JJJ of 40 CFR part 62, promulgated 
on January 31, 2003 (see 68 FR 5144).

E. How Does This Approval Relate to the Federal Plan?

    The Federal plan is applicable to small MWC units located in Indian 
Nation Land and units throughout New York for which there is no 
approved State plan. Therefore, until this approval action becomes 
effective, small MWC units within New York State's jurisdiction are 
subject to the Federal plan. Upon approval of New York's

[[Page 11979]]

State plan, small MWC units within the State of New York's jurisdiction 
will be subject to New York's State plan as of the effective date of 
this action and the Federal plan will no longer apply.

II. Background

A. What Is a State Plan?

    Section 111 of the CAA, ``Standards of Performance for New 
Stationary Sources,'' authorizes EPA to set air emissions standards for 
certain categories of sources. These standards are called New Source 
Performance Standards (NSPS). When a NSPS is promulgated for new 
sources, section 111(d) also requires that EPA publish an EG applicable 
to the control of the same pollutant from existing (or designated) 
facilities. States with designated facilities must then develop a State 
plan to adopt the EG into the State's body of regulations. States must 
also include in their State plan other requirements, such as 
inventories, legal authority, and public participation documentation, 
to demonstrate their ability to enforce the State plans.

B. What Is a Small MWC State Plan?

    A small MWC State plan is a State plan, as described above, that 
controls air pollutant emissions from existing small incinerators with 
a combustion design capacity of 35 to 250 tons per day of municipal 
solid waste or refuse derived fuel that commenced construction on or 
before August 30, 1999.

C. Why Is EPA Requiring New York To Submit a Small MWC State Plan?

    When EPA developed the NSPS for small MWCs, we simultaneously 
developed the EG to control air emissions from existing small MWCs (see 
62 FR 76378, December 6, 2000). Under section 129 of the CAA, the EG is 
not federally enforceable; therefore, section 129 of the CAA also 
requires states to submit to EPA for approval State plans that 
implement and enforce the EG. These State plans must be at least as 
protective as the EG, and they become federally enforceable upon 
approval by EPA.
    The procedures for adopting and submitting State plans are located 
in 40 CFR part 60, subpart B. If a state fails to have an approvable 
plan in place by December 6, 2001, the EPA is required to promulgate a 
Federal plan to establish requirements for those sources not under an 
EPA-approved State plan. Even though EPA promulgated the Federal plan 
on January 31, 2003, New York's State plan is approvable since it was 
deemed at least as protective as the standards set in the EG. New York 
has developed and submitted a State plan, as required by section 111(d) 
of the CAA, to gain Federal approval to implement and enforce the small 
MWC EG.

D. What Are the Requirements for a Small MWC State Plan?

    A section 111(d) State plan submittal must meet the requirements of 
40 CFR part 60, subpart B, Sec. Sec.  60.23 through 60.26, and 40 CFR 
part 60, subpart BBBB (see 62 FR 76378, December 6, 2000). Subpart B 
contains the procedures for the adoption and submittal of State plans. 
This subpart addresses public participation, legal authority, emission 
standards and other emission limitations, compliance schedules, 
emission inventories, source surveillance, and compliance assurance and 
enforcement requirements.
    EPA promulgated the EG as 40 CFR part 60, subpart BBBB on December 
6, 2000. Subpart BBBB contains the technical requirements for existing 
small MWCs and applies to units that commenced construction on or 
before August 30, 1999. A state will generally address the small MWC 
technical requirements by adopting by reference subpart BBBB. The 
section 111(d) state plan is required to be submitted within one year 
of the EG promulgation date, i.e. by December 6, 2001. Prior to 
submittal to EPA, the State must make available to the public the State 
plan and provide opportunity for public comment.

III. New York's State Plan

A. What Is Contained in the New York State Plan?

    On October 22, 2002, the New York State Department of Environmental 
Conservation (NYSDEC) submitted its section 111(d) State plan for 
implementing EPA's EG for existing small MWC units located in New York 
State.
    New York has adopted by reference the requirements of the EG in 
Part 200 of Title 6 of the New York Code of Rules and Regulations 
(6NYCRR) of the State of New York, entitled ``General Provisions'' and 
in Subpart 219-1 of 6NYCRR entitled ``Incineration-General Provisions'' 
and Subpart 219-8 of 6NYCRR entitled ``Emission Guidelines and 
Compliance Times for Small Municipal Waste Combustion Units Constructed 
on or before August 30, 1999.'' These amended regulations became 
effective on October 18, 2002. By incorporating the EG by reference 
into Part 200, NYSDEC has the authority to include them as applicable 
within Subpart 219-8, which addresses the applicability of the various 
Part 219 (New York's incineration rules) requirements. Part 219 now 
includes the new requirements incorporated from the EG, as well as the 
necessary compliance schedules and necessary definition changes 
required for the transformation of emission guidelines into a State 
plan. As a result, the Part 219 requirements are enforceable by New 
York and become federally enforceable once the State plan is approved 
by EPA.
    New York's State plan contains the following:
    (1) A demonstration of the State's legal authority to implement the 
section 111(d) State plan;
    (2) State rules adopted into 6NYCRR Parts 200 and 219 as the 
mechanism for implementing and enforcing the State plan;
    (3) An inventory of three known small MWC facilities, including 
eight small MWC units, along with an inventory of their air pollutant 
emissions;
    (4) Emission limits that are as protective as the EG;
    (5) Enforceable compliance schedules incorporated into Part 219, 
New York's incineration rule. For Class I Units, compliance dates vary 
from three years from the effective date of EPA's approval of New 
York's State plan to not later than December 6, 2005, whichever is 
earlier. For Class II Units, compliance dates vary from one year from 
the effective date of EPA's approval of New York's State plan to not 
later than December 6, 2005, whichever is earlier.
    (6) Testing, monitoring, reporting and recordkeeping requirements 
for the designated facilities;
    (7) Records of the public hearing on the State plan; and,
    (8) Provisions for annual state progress reports to EPA on 
implementation of the State plan.

B. What Approval Criteria Did We Use To Evaluate New York's State Plan?

    EPA reviewed New York's State plan for approval against the 
following criteria: 40 CFR 60.23 through 60.26 , ``Subpart B--Adoption 
and Submittal of State Plans for Designated Facilities;'' and 40 CFR 
60.1600 through 60.1940, ``Subpart BBBB--Emission Guidelines and 
Compliance Times for Small Municipal Waste Combustion Units Constructed 
on or Before August 30, 1999.''

IV. EPA's Rulemaking Action

    The EPA has determined that New York's State plan meets all the 
applicable approval criteria and, therefore, EPA is approving, through 
direct final rulemaking action, New

[[Page 11980]]

York State's sections 111(d) and 129 State plan for small MWCs.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal 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 SIP revision should 
adverse comments be filed. This rule will be effective May 12, 2003 
without further notice unless the Agency receives adverse comments by 
April 14, 2003.
    If the EPA receives adverse comments, then EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

V. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities. Therefore, because the Federal 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.

Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either state, commonwealth, local, or tribal 
governments in the aggregate, or to the private sector. This Federal 
action approves pre-existing requirements under state or local law, and 
imposes no new requirements. Accordingly, no additional costs to state, 
commonwealth, local, or tribal governments, or to the private sector, 
result from this action.

Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. Under section 6(c) of Executive 
Order 13132, EPA may not issue a regulation that has federalism 
implications and that preempts state law, unless the Agency consults 
with state and local officials early in the process of developing the 
proposed regulation.
    New York's State plan applies to all affected sources regardless of 
whether it has been identified in its plan. Therefore, EPA has 
concluded that this rulemaking action does not have federalism 
implications. It will not impose substantial direct compliance costs on 
state or local governments, nor will it preempt state law. Thus, the 
requirements of sections 6(b) and 6(c) of the Executive Order do not 
apply to this rule.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, 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 in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

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National Technology Transfer Advancement Act

    Section 12 of the National Technology Transfer Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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. 
section 804(2). This rule will be effective May 12, 2003 unless EPA 
receives material adverse written comments by April 14, 2003.

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 May 12, 2003. 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, Lead, Reporting and recordkeeping requirements.

    Dated: March 3, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.

    Part 62, chapter I, title 40 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 HH--New York

    2. Part 62 is amended by adding new Sec.  62.8107 and an 
undesignated heading to subpart HH to read as follows:
    Air Emissions From Existing Small Municipal Waste Combustion Units 
With The Capacity To Combust At Least 35 Tons Per Day But No More Than 
250 Tons Per Day Of Municipal Solid Waste Or Refuse Derived Fuel and 
Constructed on or Before August 30, 1999.


Sec.  62.8107  Identification of plan.

    (a) On October 22, 2002, the New York State Department of 
Environmental Conservation submitted to the Environmental Protection 
Agency ``Section 111(d)/129 State Plan for Implementation of Municipal 
Waste Combustor Emission Guidelines [Title 40 CFR Part 60, Subparts B 
and BBBB]''
    (b) Identification of sources: The plan applies to all existing 
Small Municipal Waste Combustion Units with the capacity to combust at 
least 35 tons per day but no more than 250 tons per day of municipal 
solid waste or refuse derived fuel and constructed on or before August 
30, 1999.
    (c) The effective date for the portion of the plan applicable to 
existing municipal waste combustor units is May 12, 2003.

[FR Doc. 03-5908 Filed 3-12-03; 8:45 am]
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