[Federal Register Volume 73, Number 68 (Tuesday, April 8, 2008)]
[Rules and Regulations]
[Pages 18968-18970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7347]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2008-MD-0209; FRL-8552-5]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; State of Maryland; Control of 
Large Municipal Waste Combustor (LMWC) Emissions From Existing 
Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the Maryland 
Department of the Environment (MDE) large municipal waste combustor 
plan (the plan) revision for implementing emission guideline (EG) 
amendments promulgated on May 10, 2006 by EPA under the Clean Air Act 
(the Act). The plan revision establishes revised emission limits, 
monitoring, and recordkeeping requirements for existing LMWC units with 
a unit capacity greater than 250 tons per day (TPD). An existing LMWC 
unit is one for which construction commenced on or before September 20, 
1994.

DATES: This rule is effective June 9, 2008 without further notice, 
unless EPA receives adverse written comment by May 8, 2008. If EPA 
receives such comments, it 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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0209 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: http://[email protected].
    C. Mail: EPA--R03 OAR-2008 MD-0209, Walter Wilkie, Chief, Air 
Quality Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2008-MD-0209. EPA's policy is that all comments received will be 
included in the public docket without change, and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the Maryland Department of the Environment, 1800 
Washington Boulevard, Suite 705, Baltimore, Maryland, 21230.

FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 129(a)(5) of the Clean Air Act (the Act) requires EPA to 
conduct a 5-year review of the solid waste incinerator new source 
performance standards (NSPS) and emission guidelines (EG) and revise 
both, as appropriate. Accordingly, in the May 10, 2006 edition of the 
Federal Register, EPA promulgated revised LMWC rules under sections 111 
and 129 of the Act. EG for existing affected facilities are not 
federally enforceable. However, section 129(b)(2) of the Act requires 
States to submit to EPA for approval State Plans and revisions that 
implement and enforce the amended EG, in this case, 40 CFR part 60, 
subpart Cb. State Plans and revisions must be at least as protective as 
the EG, and become federally enforceable as a section 111(d)/129 plan 
revision upon approval by EPA. The procedures for adoption and 
submittal of State Plans and revisions are codified in 40 CFR Part 60, 
subpart B.

[[Page 18969]]

II. Review of Maryland's MWC Plan Revision

    The required Maryland 111(d)/129 plan revision (07-15) was 
submitted to EPA on October 24, 2007. EPA has reviewed the plan 
revision for existing LMWC units in the context of the requirements of 
40 CFR part 60, and subparts B and Cb, as amended. State plans must 
include the following essential elements: (1) Identification of legal 
authority, (2) identification of mechanism for implementation, (3) 
inventory of affected facilities, (4) emissions inventory, (5) 
emissions limits, (6) compliance schedules, (7) testing, monitoring, 
recordkeeping, and reporting, (8) public hearing records, and (9) 
annual state progress reports on facility compliance.

A. Identification of Legal Authority

    Title 40 CFR 60.26 requires the plan to demonstrate that the State 
has legal authority to adopt and implement the emission standards and 
compliance schedules. The initial LMWC plan submittal demonstrates that 
the MDE has the legal authority to adopt and implement a plan.

B. Identification of Enforceable State Mechanisms for Implementing the 
Plan

    The subpart B provision at 40 CFR 60.24(a) requires that state 
plans 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.'' The MDE Code of Maryland 
Regulations (COMAR) for LMWC units has been amended to incorporate 
revisions to subpart Cb. These amendments to Regulations .01, .02 and 
.08 under COMAR 26.11.08, Control of Incinerators, were adopted 
September 12, 2007 and became effective on October 8, 2007. Other 
applicable and effective supporting air program rules were identified 
in EPA's initial plan approval. (64 FR 19919). These rules collectively 
met the requirement of 40 CFR 60.24(a) to have a legally enforceable 
emission standard.

C. Inventory of Affected MWC Units

    Title 40 CFR 60.25(a) requires the plan to include a complete 
source inventory of all LMWC units. The MDE has identified two (2) 
affected facilities--Wheelabrator Baltimore, L.P., and Montgomery 
County Resource Recovery Facility. An unknown affected facility is not 
exempt from applicable 111(d)/129 requirements because it is not listed 
in the source inventory.

D. Inventory of Emissions From Affected MWC Units

    Title 40 CFR 60.25(a) requires that the plan include an emissions 
inventory that estimates emissions of the pollutant regulated by the 
EG. Emissions from MWC units contain organics (dioxin/furans), metals 
(cadmium, lead, mercury, particulate matter, opacity), and acid gases 
(hydrogen chloride, sulfur dioxide, and nitrogen oxides). For each 
affected MWC facility, the MDE plan revision contains MWC unit 
emissions rates for each regulated pollutant based on 2006 and 2007 
stack test and continuous emission monitoring data. This meets the 
emission inventory requirements of 40 CFR 60.25(a).

E. Emissions Limitations for MWC Units

    Title 40 CFR 60.24(c) specifies that the State plan or revision 
must include emission standards that are no less stringent than the EG, 
except as specified in 40 CFR 60.24(f) which allows for less stringent 
emission limitations on a case-by-case basis if certain conditions are 
met. This exception clause is superseded by section 129(b)(2) of the 
Act which requires that state plans be ``at least as protective'' as 
the EG. A review of COMAR 26.11.08.08 emissions limitations shows that 
all are ``at least as protective'' as those in the EG, subpart Cb, as 
amended.

F. Compliance Schedules

    Under 40 CFR 60.24(c) and (e), a state plan must include an 
expeditious compliance schedule that owners and operators of affected 
MWC units must meet in order to comply with the requirements of the 
plan. The plan revision and related COMAR 26.11.08.08 rule amendments 
contain a compliance schedule, consistent with subpart Cb requirements, 
with specific increments of progress for meeting the revised and more 
stringent emission limitations. Sec.  60.24(e)(1) requires that 
compliance schedules extending more than 12 months from the date 
required for submittal of the plan must include legally enforceable 
increments of progress. The required state plan revision was due at EPA 
on May 10, 2007. Accordingly, the submitted plan revision contains 
increments of progress which require full facility compliance by a date 
no later than April 28, 2009, assuming an extensive emission control 
system upgrade is not required. This requirement does not preclude an 
affected facility from demonstrating full compliance prior to April 28, 
2009. In the case where an extensive emission control system upgrade is 
required, the facility's first increment of progress is to complete a 
control system and cost analysis by April 1, 2008; if that is the case, 
full compliance is then required by March 10, 2011. The state plan 
revision meets applicable Federal requirements.

G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), 
stipulate facility testing, monitoring recordkeeping and reporting 
requirements for state plans. COMAR 26.11.08.08 has also been amended 
to be consistent with EPA's May 10, 2006 EG amendments, subpart Cb, 
relating to source testing, monitoring, recordkeeping and reporting 
requirements.

H. A Record of Public Hearing on the State Plan Revision

    A public hearing on the plan revision was held August 8, 2007. 
Applicable portions of COMAR 26.11.08.01, .02, and .08 amendments 
became effective on October 8, 2007. The state provided evidence of 
complying with public notice and other hearing requirements, including 
a record of public comments received. The MDE has met the requirement 
of 40 CFR 60.23 for a public hearing.

I. Annual State Progress Reports to EPA

    The MDE will submit to EPA on an annual basis a report which 
details the progress in the enforcement of the plan in accordance with 
40 CFR 60.25. Accordingly, the MDE will submit annual reports on 
progress in plan enforcement to EPA on an annual (calendar) basis, 
commencing with the first full report period after plan revision 
approval.

III. Final Action

    Based upon the rationale discussed above and in further detail in 
the technical support document (TSD) associated with this action, EPA 
is approving the Maryland plan revision and related COMAR 26.11.08 
Regulation, Control of Incinerators, amendments to .01, .02, and .08, 
as adopted September 12, 2007. This approval excludes certain 
authorities retained by EPA, and as stated in 40 CFR 60.30b(b) and 
60.50b(n). As required by 40 CFR 60.28(c), any revisions to the 
Maryland plan or supporting regulations will not be considered part of 
the applicable plan until submitted by the MDE 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, requirements.

[[Page 18970]]

    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirement for state air pollution control agencies and existing LMWC 
units that are subject to the provisions of 40 CFR part 60, subpart Cb 
and related subpart Eb. However, in the ``Proposed Rules'' section of 
today's Federal Register, EPA is publishing a separate document that 
will serve as the proposal to approve the section 111(d)/129 plan 
revision should relevant adverse or critical comments be filed. This 
rule will be effective June 9, 2008 without further notice unless EPA 
receives adverse comments by May 8, 2008. If EPA receives adverse 
comments, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule did 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.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
111(d)/129 plan submission that complies with the provisions of the Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the 
Clean Air Act. Accordingly, this action merely approves state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the 111(d)/129 plan is not approved to apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law.
    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 action 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 June 9, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements, Sulfur 
oxides, Waste treatment and disposal.

    Dated: March 31, 2008.
Donald S. Welsh,
Regional Administrator, Region III.

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40 CFR part 62 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 V--Maryland

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2. Section 62.5110 is amended by redesignating the existing paragraph 
as paragraph (a) and adding paragraph (b) to read as follows:


Sec.  62.5110  Identification of plan.

* * * * *
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(b) On October 24, 2007, Maryland submitted a revised State plan (Phase 
II) and related COMAR 26.11.08.01, .02, and .08 amendments as required 
by 40 CFR part 60, subpart Cb, amended May 10, 2006.
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3. Section 62.5112 is amended by redesignating the existing paragraph 
as paragraph (a) and adding paragraph (b) to read as follows:


Sec.  62.5112  Effective date.

* * * * *
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(b) The plan revision (Phase II) is effective June 9, 2008.

[FR Doc. E8-7347 Filed 4-7-08; 8:45 am]
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