[Federal Register Volume 68, Number 71 (Monday, April 14, 2003)]
[Rules and Regulations]
[Pages 17883-17885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8953]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[FL-094-200316a; FRL-7481-8]


Approval and Promulgation of State Plan for Designated Facilities 
and Pollutants: Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the sections 111(d)/129 plan submitted by the 
Florida Department of Environmental Protection (FDEP) for the State of 
Florida on November 29, 2001, for implementing and enforcing the 
Emissions Guidelines (EG) applicable to existing Commercial and 
Industrial Solid Waste Incineration (CISWI) units that commenced 
construction on or before November 30, 1999.

DATES: This direct final rule is effective June 13, 2003 without 
further notice, unless EPA receives adverse comments by May 14, 2003. 
If adverse comments are received, EPA 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: All comments should be addressed to: Joydeb Majumder, EPA 
Region 4, Air Toxics and Management Branch, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-3104. Copies of materials submitted to EPA may 
be examined during normal business hours at the above listed Region 4 
location. Anyone interested in examining this document should make an 
appointment with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: Joydeb Majumder at (404) 562-9121 or 
Heidi LeSane at (404) 562-9035.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 1, 2000, pursuant to sections 111 and 129 of the Clean 
Air Act (Act), EPA promulgated new source performance standards (NSPS) 
applicable to new CISWIs and EG applicable to existing CISWIs. The NSPS 
and EG are codified at 40 CFR part 60, subparts CCCC and DDDD, 
respectively. Subparts CCCC and DDDD regulate the following: 
Particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides 
of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and 
dibenzofurans.
    Section 129(b)(2) of the Act requires States to submit to EPA for 
approval State Plans that implement and enforce the EG. State Plans 
must be at least as protective as the EG, and become Federally 
enforceable upon approval by EPA. The procedures for adoption and 
submittal of State Plans are codified in 40 CFR part 60, subpart B. EPA 
originally promulgated 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.
    This action approves the State Plan submitted by FDEP for the State 
of Florida to implement and enforce subpart DDDD, as it applies to 
existing CISWI units only.

II. Discussion

    FDEP submitted to EPA on November 29, 2001, the following in their 
111(d)/129 State Plan for implementing and enforcing the EG for 
existing CISWIs under their direct jurisdiction in the State of 
Florida: Public Participation-Demonstration that the Public Had 
Adequate Notice and Opportunity to Submit Written Comments and Attend 
the Public Hearing; Legal Authority; Emission Limits and Standards; 
Compliance Schedule; Inventory of CISWI Plants/Units; CISWI Emissions 
Inventory; Source Surveillance, Compliance Assurance and Enforcement 
Procedures; Submittal of Progress Reports to EPA; and applicable State 
of Florida statutes and rules of the FDEP.
    The approval of the Florida State Plan is based on finding that: 
(1) FDEP provided adequate public notice of public hearings for the EG 
for CISWIs, and (2) FDEP also demonstrated legal authority to adopt 
emission standards and compliance schedules; enforceable applicable 
laws, regulations, standards, and compliance schedules; the ability to 
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.
    FDEP cites the following references for the legal authority: The 
Florida Statues (F.S.), sections 403.031 definitions, 403.061 powers 
and duties, 403.0872 Title V air operating permits, and 403.8055 
authority to adopt federal

[[Page 17884]]

standards by reference. Subsections 403.061(6), (7), (8), and (13), 
F.S., gives the authority for obtaining information, requiring record 
keeping, and using monitors. Most importantly, subsection 403.061(35), 
F.S., gives FDEP the authority to exercise the duties, powers, and 
responsibilities required of the state under the Act. The sections of 
Florida Statues that give authority for compliance and enforcement are 
403.121 judicial and administrative remedies, 403.131 injunctive 
relief, 403.141 civil remedies, and 403.161 civil and criminal 
penalties. Finally, section 119.07, F.S., is the authority for making 
the information available to the public.
    An enforcement mechanism is a legal instrument by which the FDEP 
can enforce a set of standards and conditions. The FDEP has adopted 40 
CFR 60, subpart DDDD, into Chapter 62-204 of the Florida Administrative 
Code, thereby making it an enforceable rule. Therefore, FDEP's 
mechanism for enforcing the standards and conditions of 40 CFR 60, 
subpart DDDD, is Rule 62.204.800(8)(f), F.A.C. On the basis of these 
statutes and rules of the State of Florida, the State Plan is approved 
as being at least as protective as the Federal requirements for 
existing CISWI units.
    FDEP adopted by reference, all emission standards and limitations 
applicable to existing CISWI units. These standards and limitation have 
been approved as being at least as protective as the Federal 
requirements contained in subpart DDDD for existing CISWI units.
    FDEP submitted the compliance schedule for CISWIs under their 
jurisdiction in the State of Florida. This portion of the Plan has been 
reviewed and approved as being at least as protective as Federal 
requirements for existing CISWI units.
    FDEP submitted an emissions inventory of all designated pollutants 
for CISWI units under their jurisdiction in the State of Florida. This 
portion of the Plan has been reviewed and approved as meeting the 
Federal requirements for existing CISWI units.
    FDEP includes its legal authority to require owners and operators 
of designated facilities to maintain records and report to their Agency 
the nature and amount of emissions and any other information that may 
be necessary to enable their Agency to judge the compliance status of 
the facilities in Appendix B of the State Plan. In Appendix B, FDEP 
also submits its legal authority to provide for periodic inspection and 
testing and provisions for making reports of CISWI emissions data, 
correlated with emission standards that apply, available to the general 
public.
    The State Plan outlines the authority to meet the requirements of 
monitoring, record keeping, reporting, and compliance assurance. This 
portion of the Plan has been reviewed and approved as being at least as 
protective as Federal requirements for existing CISWI units.
    As stated in the Plan, FDEP will provide progress reports of plan 
implementation updates to the EPA on an annual basis. These progress 
reports will include the required items pursuant to 40 CFR part 60, 
subpart B. This portion of the plan has reviewed and approved as 
meeting the Federal requirement for State Plan reporting.
    This action approves the State Plan submitted by FDEP for the State 
of Florida to implement and enforce subpart DDDD, as it applies to 
existing CISWI units only.

III. Final Action

    This action approves the State Plan submitted by FDEP for the State 
of Florida to implement and enforce subpart DDDD, as it applies to 
existing CISWI units only. 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 State 
Implementation Plan (SIP) revision should adverse comments be filed. 
This rule will be effective June 13, 2003 without further notice unless 
the Agency receives adverse comments by May 14, 2003.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on June 13, 2003, and no 
further action will be taken on the proposed rule.

IV. Statutory and Executive Order Reviews

    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 (Pub. L. 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 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 SIP 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 SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the

[[Page 17885]]

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. 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).
    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 June 13, 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, Nitrogen dioxide, 
Particulate matter, Sulfur oxides.

    Dated: March 24, 2003.
A. Stanely Meiburg,
Acting, Regional Administrator, Region 4.


0
Chapter I, title 40 of the Code of Federal Regulation is amended as 
follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart K--Florida

0
2. Subpart K is amended by adding an undesignated center heading and 
Sec.  62.2380 to read as follows:

Air Emissions From Commercial and Industrial Solid Waste Incineration 
(CISWI) Units--Section 111(d)/129 Plan


Sec.  62.2380  Identification of sources.

    The Plan applies to existing Commercial and Industrial Solid Waste 
Incineration Units that Commenced Construction On or Before November 
30, 1999.

[FR Doc. 03-8953 Filed 4-11-03; 8:45 am]
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