[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Proposed Rules]
[Pages 45589-45592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19598]


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 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2018-0564, FRL-9983-42--Region 2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State plan submitted by New York State to implement and 
enforce Emission Guidelines (EG) for existing large municipal waste 
combustor (MWC) units. The State plan is consistent with the amended EG 
promulgated by EPA on May 10, 2006. New York's plan establishes 
emission limits and other requirements for the purpose of reducing 
emissions of lead, mercury, cadmium, organics, hydrogen chloride and 
other air pollutants from large 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: Comments must be received on or before October 10, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2018-0564 to http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make.
    The EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
([email protected]), Air Programs Branch, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the SUPPLEMENTARY INFORMATION section:
I. EPA Action
    A. What action is EPA proposing today?
    B. Who is affected by New York's revised State plan?
    C. How does this approval affect sources located in Indian Nation 
Land?
II. Background
    A. What is a State plan?
    B. Why is EPA requiring New York to submit a revised large MWC 
State plan?
    C. What are the requirements for a revised large MWC State plan?
    D. What revisions did EPA make to subpart Cb as amended on May 10, 
2006?
III. New York's State Plan
    A. What is contained in the New York State revised plan?
    B. What approval criteria did we use to evaluate New York's revised 
State plan?
IV. What is EPA's conclusion?
V. Statutory and Executive Order Reviews

I. EPA Action

A. What action is EPA proposing today?

    EPA is proposing to approve New York's revised State plan, 
submitted on July 12, 2013, for the control of air emissions from 
existing large municipal waste combustor (MWC) units throughout the 
State, except for any existing large MWC units located in Indian Nation 
Land. In accordance with the Clean Air Act (CAA), New York previously 
submitted a State plan on December 15, 1997, as supplemented on June 
22, 1998, which was approved by EPA on August 4, 1998, 63 FR 41427. New 
York also submitted a revised State plan on October 7, 1998, as 
supplemented on November 5, 1998 which was approved by the EPA on 
February 9, 1999, 64 FR 6237. New York

[[Page 45590]]

submitted its July 2013 revised plan to fulfill the requirements of 
section 111(d) and 129 of the CAA. The revised State plan adopts and 
implements the Emission Guidelines (EG) amended by EPA on May 10, 2006 
applicable to existing large MWC units, and establishes revised 
emission limits and other requirements for units constructed on or 
before September 20, 1994. This proposed approval, once finalized and 
effective, will make New York's revised large MWC rules included in the 
State plan federally enforceable.

B. Who is affected by New York's revised State plan?

    New York's revised State plan regulates all the units designated by 
the amended EG applicable to existing large MWC units with a combustion 
capacity greater than 250 tons per day of municipal solid waste for 
which construction commenced on or before September 20, 1994.

C. How does this approval affect sources located in Indian Nation Land?

    New York's revised State plan is not applicable to units located in 
Indian Nation Land. Therefore, if there are any existing large MWC 
units located in Indian Nation Land these existing large MWC units will 
be subject to the Federal plan.\1\
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    \1\ The EPA has not yet promulgated a Federal plan for the May 
2006 large MWC EG. The current Federal plan was promulgated on May 
24, 2000 (65 FR 33461) and amended on July 14, 2004 (69 FR 42117) 
for the large MWC EG promulgated on August 25, 1997 (62 FR 45124) as 
amended on July 12, 2001 (66 FR 36473).
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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) and EPA regulations also require that EPA 
publish an EG applicable to control the same pollutants from existing 
(or designated) facilities. States with designated facilities must then 
develop a State plan to adopt the requirements of the EG into the 
State's body of regulations. States must also include in their State 
plan other requirements, such as inventories, legal authority, 
reporting and recordkeeping, and public participation documentation, to 
demonstrate their ability to enforce the State plans.
    Section 129 of the CAA requires EPA to establish performance 
standards and emission guidelines for various types of new and existing 
solid waste incineration units. Section 129(b)(2) requires States to 
submit to EPA for approval section 111(d)/129 plans that implement and 
enforce the promulgated EG. Section 129(b)(3) requires EPA to 
promulgate a Federal plan (FP) within two years from the date on which 
the EG, or when revision to the EG, is promulgated. The FP is 
applicable to affected facilities when the state has failed to receive 
EPA approval of the section 111(d)/129 plan. The FP remains in effect 
until the state submits and receives EPA approval of its section 
111(d)/129 plan.
    State plan submittals under CAA sections 111(d) and 129 must be 
consistent with the relevant EG, in this instance 40 CFR part 60, 
subpart Cb, and the requirements of 40 CFR part 60, subpart B and part 
62, subpart A. Section 129 of the CAA regulates air pollutants that 
include organics (dioxins/furans), carbon monoxide, metals (cadmium, 
lead, and mercury), hydrogen chloride, sulfur dioxide, nitrogen oxides, 
particulate matter, and opacity (as appropriate).

B. Why is EPA requiring New York to submit a revised large MWC State 
plan?

    When EPA developed the amended NSPS for large MWC units, we 
simultaneously developed the amended EG to control air emissions from 
existing units (see 71 FR 27324, May 10, 2006). 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. Under section 129 of the CAA, 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, the EPA is required to promulgate a federal plan to 
establish requirements for those sources not under an EPA-approved 
State plan. New York has developed and submitted a revised State plan, 
as required by sections 111(d)/129 of the CAA, to gain federal approval 
to implement and enforce the requirements of the amended EG for 
existing large MWC units. The procedures for EPA's approval and 
disapproval of State plans are located in 40 CFR part 62, subpart A. 
EPA is proposing to approve New York's State plan since it is deemed at 
least as protective as the standards set in the EG, as amended on May 
10, 2006.

C. What are the requirements for a revised large MWC State plan?

    A section 111(d) State plan submittal must meet the requirements of 
40 CFR part 60, subpart B, sections 60.23 through 60.26, and the 
amended EG found at 40 CFR part 60, subpart Cb (see 71 FR 27324, May 
10, 2006). 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 amended EG at 40 CFR part 60, subpart Cb on May 
10, 2006. Subpart Cb contains guidelines to the states for submittal of 
plans that address existing large MWC units. In addition, subpart Cb 
contains the technical requirements for existing large MWC units 
located at a facility designed to combust municipal solid waste and 
applies to each MWC unit with a combustion capacity greater than 250 
tons per day for which construction was commenced on or before 
September 20, 1994. A state can address the large MWC technical 
requirements by adopting its own regulation that includes all the 
applicable requirements of subpart Cb or by incorporating by reference 
subpart Cb if the state meets certain requirements. States with 
affected facilities are required to submit to EPA a section 111(d)/129 
plan to implement and enforce all provisions of subpart Cb, as amended 
on May 10, 2006. Prior to submittal to EPA, the State must make 
available to the public the State plan and provide opportunity for 
public comment, including a public hearing.

D. What revisions did EPA make to subpart Cb as amended on May 10, 
2006?

    Section 129(a)(5) of the CAA requires EPA to conduct 5-year reviews 
of NSPS for solid waste incinerators and amend standards and 
requirements as appropriate. Accordingly, EPA promulgated amended 
standards and requirements for large MWCs on May 10, 2006. This 
rulemaking resulted in two major revisions as well as other revisions. 
The two major revisions include revisions to emission limits and 
revisions to compliance testing provisions.
    Relative to the 1995 EG, the emission limits in the May 2006 
rulemaking for existing large MWC units are revised for dioxin/furans 
(only for units equipped with electrostatic precipitators), mercury, 
cadmium, lead, particulate

[[Page 45591]]

matter, and nitrogen oxides (for some types of units). The second major 
revision to the EG included revisions to the compliance testing 
provisions to require increased data availability from continuous 
emissions monitoring Systems (CEMS). CEMS are required to generate at 
least 95% data availability on a calendar year basis and at least 90% 
data availability on a calendar quarter basis. Also, the compliance 
testing provisions have also been revised to allow the optional use of 
CEMS to monitor particulate matter and mercury.
    Other revisions include the following:
     Operator stand-in provisions to clarify how long a shift 
supervisor is allowed to be off site when a provisionally certified 
control room operator is standing in;
     An 8-hour block average for measuring activated carbon 
injection rate;
     A provision for waiver of operating parameter limits 
during the mercury performance tests and two weeks preceding the test, 
as is already allowed for dioxin testing;
     A revision to the relative accuracy criterion for sulfur 
dioxide and carbon monoxide CEMS;
     Flexibility to the annual compliance testing schedule so 
that a facility tests once per calendar year, but no less than 9 months 
and not more than 15 months since the previous test;
     Allowing the use of parametric monitoring limits from an 
exceptionally well-operated MWC unit to be applied to all identical 
units at the same plant site without retesting for dioxin;
     The option of monitoring the activated carbon injection 
pressure or equivalent parameter; and
     Clarifying the exclusion of monitoring data from 
compliance calculations under certain conditions.
    New York's revised State plan submittal in July 2013 for existing 
large MWCs includes all the revisions to subpart Cb, as amended on May 
10, 2006.

III. New York's State Plan

A. What is contained in the New York State revised plan?

    On July 12, 2013,\2\ the New York State Department of Environmental 
Conservation (NYSDEC) submitted to EPA its section 111(d)/129 State 
plan to implement EPA's amended EG for existing large MWC units located 
in New York State.
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    \2\ In an email dated 12/06/2017, the New York State Department 
of Environmental Conservation provided a copy of the NYS Office of 
Attorney General opinion finding that NY state administrative 
agencies are authorized to incorporate by reference federal statutes 
and regulations that are applicable to the state, and that such 
action is not prohibited by the NYS constitution.
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    New York has incorporated by reference the applicable requirements 
of the amended EG in Part 200 of Title 6 of the New York Code of Rules 
and Regulations (6 NYCRR) of the State of New York, entitled ``General 
Provisions.'' The amended regulation became effective on October 20, 
2007. New York will enforce the requirements under Part 201, entitled 
``Permits and Registration.'' By adopting the requirements of the 
amended EG into Part 200, NYSDEC has the authority to include them as 
applicable requirements in permits of emission sources subject to such 
requirements. As a result, the Part 200 requirements are enforceable by 
New York and become federally enforceable once the State plan is 
approved by EPA.
    New York's revised State plan includes all of EPA's required 
elements as described in the amended EG and 40 CFR subpart B, as 
summarized herein:
    (1) A demonstration of the State's legal authority to implement the 
sections 111(d) and 129 State plan;
    (2) State rules adopting the amended EG (6 NYCRR Part 200) as the 
mechanism for implementing and enforcing the State plan;
    (3) An inventory of seven known large MWC facilities, including 
eighteen large MWC units, along with an inventory of their air 
pollutant emissions (see section C of New York's State plan);
    (4) Emission limits, emission standards, operator training and 
qualification requirements, and operating limits that are at least as 
protective as the amended EG;
    (5) Enforceable compliance schedules as indicated in the amended 
EG. Compliance with revised emission limits (see 60.39b) is required as 
expeditiously as practicable, but not later than April 28, 2009 except 
as noted in 60.39b(g)(2) for a facility planning an extensive emission 
control system upgrade who petitions the Administrator for a longer 
compliance schedule. If approved by the Administrator, the longer 
compliance schedule may be extended but not later than May 10, 2011. In 
the event that no plan for implementing the amended EG is approved by 
EPA, the applicable large MWC units must be in compliance with all 
requirements of the amended EG no later than May 10, 2011 (see 
60.39b(h)).
    (6) Testing, monitoring, reporting and recordkeeping requirements 
for the designated facilities;
    (7) Records of the public hearing on the revised State plan; and,
    (8) Provisions for annual state progress reports to EPA on 
implementation of the revised State plan.
    EPA proposes to determine that New York's revised State plan for 
large MWC units includes all the required State plan elements described 
in the amended EG and 40 CFR subpart.

B. What approval criteria did we use to evaluate New York's revised 
State plan?

    EPA reviewed New York's revised 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 ``Subpart 
Cb Emission Guidelines and Compliance Times for Large Municipal Waste 
Combustors That are Constructed on or Before September 20, 1994;'' and 
40 CFR 62, subpart A, ``General Provisions'' for ``Approval and 
Promulgation of State Plans for Designated Facilities and Pollutants.''

IV. What is EPA's conclusion?

    The EPA has determined that New York's revised State plan meets all 
the applicable approval criteria as discussed above and, therefore, EPA 
is proposing to approve New York State's sections 111(d) and 129 
revised State plan for existing large municipal waste combustor units.

V. Statutory and Executive Order Reviews

    Pursuant to EPA regulations, the Administrator may approve a plan 
or any portion thereof upon a determination that it meets Sections 
111(d) and 129 of the Act and applicable regulations. 40 CFR Section 
62.02.
    Accordingly, this action, if finalized, would merely approve state 
law as meeting Federal requirements and would not impose additional 
requirements beyond those imposed by state law.
    For that reason, this action, if finalized:
     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); and 13563 (76 FR 3821, January 
21, 2011);
     is not an Executive Order 13771 regulatory action because 
this action is not significant under Executive Order 12866;
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 45592]]

     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 CAA; 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 proposed rule is not approved to apply on any 
Indian reservation land or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Sulfur oxides, waste treatment and 
disposal.


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

    Dated: August 19, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.
[FR Doc. 2018-19598 Filed 9-7-18; 8:45 am]
 BILLING CODE 6560-50-P