[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Proposed Rules]
[Pages 58294-58297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20379]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2022-0515; FRL-10220-01-R1]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: Maine; 111(d)/129 Revised State Plan for 
Large Municipal Waste Combustors and State Plan for Small Municipal 
Waste Combustors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the Clean Air Act (CAA) State Plan for Municipal Waste 
Combustor (MWC) units submitted by the Maine Department of 
Environmental Protection (Maine DEP). This submission includes 
revisions to Maine's previously-approved State Plan for existing Large 
MWCs in response to amended emission guidelines (EGs) for Large MWCs. 
This submission also includes a State Plan for existing Small MWCs. 
Maine DEP's State Plans for Large and Small MWCs implement and enforce 
provisions at least as protective as the EGs applicable to these 
subcategories of solid waste incinerators. This action is being taken 
in accordance with the CAA.

DATES: Written comments must be received on or before October 26, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2022-0515 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, 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, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. EPA requests that, if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT: Shutsu Wong, Air Quality Branch, U.S. 
Environmental Protection Agency, EPA Region 1, 5 Post Office Square--
Suite 100, (Mail Code 05-2), Boston, MA 02109-3912, tel. 617-918-1078, 
email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What is a state plan?
II. Why does EPA need to approve state plans?
III. What history does Maine DEP have with MWC state plans?
    A. Large MWCs
    B. Small MWCs
IV. Why did Maine DEP revise the Large MWC state plan?
V. Why did Maine DEP submit a Small MWC state plan?
VI. Review of Maine DEP's State Plan
    A. State Plan Elements Applicable to Large and Small MWCs
    B. Revised Requirements for Large MWCs Constructed on or Before 
September 20, 1994 in 06-096 CMR Chapter 121
    C. Requirements for Small MWCs Established in 06-096 CMR Chapter 
121
VII. Why is EPA proposing to approve Maine DEP's state plan?
VIII. Proposed Action
IX. Incorporation by Reference
X. Statutory and Executive order reviews

I. What is a state plan?

    Section 111(d) of the CAA requires that pollutants controlled under 
new source performance standards (NSPS) also be controlled at existing 
sources in the same source category. Once an NSPS is issued, EPA then 
publishes emission guidelines (EGs) applicable to the control of the 
same pollutant for existing (designated) facilities. States with 
designated facilities must develop state plans to adopt the EGs into 
their body of regulations. States must also include in their state 
plans other elements, such as legal authority, inventories, and public 
participation documentation to demonstrate their ability to enforce the 
state plans.

II. Why does EPA need to approve state plans?

    Section 129(b)(2) of the CAA requires states to submit state plans 
to EPA for approval. Each state must show that its state plan will 
carry out and enforce the EGs. State plans must be at least as 
protective as the EGs and will become federally enforceable upon EPA's 
approval. The procedures for adopting and submitting state plans are in 
40 CFR part 60, subpart B.

III. What history does Maine DEP have with MWC state plans?

A. Large MWCs

    On April 15, 1998, the Maine DEP submitted a Section 111(d)/129 
State Plan for implementing and enforcing EGs for existing Large MWCs 
with capacity to combust more than 250 tons per day (TPD) of municipal 
solid waste (MSW) pursuant to 40 CFR part 60, subpart Cb and Eb, 
respectively. On December 11, 1998, EPA approved this State Plan (63 FR 
68394).
    On December 21, 2007, Maine DEP submitted a revised State Plan for 
Large MWCs. This State Plan incorporated revisions made by EPA to 40 
CFR part 60, subpart Cb and Eb in 2006. This State Plan did not receive 
final EPA approval. In 2019, further amendments and updates were made 
to align the state's rules with Federal requirements, and Maine DEP 
submitted the revised State Plan to EPA on December 24, 2019.

B. Small MWCs

    Maine's December 21, 2007 submittal to EPA containing revisions to 
its State Plan for Large MWCs also contained necessary elements for a 
State Plan for Small MWCs. This 2007 submittal did not receive final 
EPA approval. In 2019, amendments and updates were made to align the 
state's rules with Federal requirements, and Maine DEP submitted the 
State Plan to EPA on December 24, 2019.

IV. Why did Maine DEP revise the Large MWC state plan?

    Section 129(a)(5) of the CAA requires EPA to conduct a 5-year 
review of NSPS and EGs for solid waste incinerators and to amend 
standards and requirements as appropriate. Accordingly, EPA promulgated 
amended standards and requirements for Large MWCs on May 10, 2006 (71 
FR 27324). This rulemaking included revised limits for dioxin/furan

[[Page 58295]]

(only for units equipped with electrostatic precipitators), mercury, 
cadmium, lead, particulate matter, and nitrogen oxides (for some types 
of units). It also contained revisions to the compliance testing 
provisions to require increased data availability from continuous 
emissions monitoring systems (CEMS). CEMS are required to generate at 
least ninety-five percent (95%) data availability on a calendar year 
basis and at least ninety percent (90%) data availability on a calendar 
quarter basis. The compliance testing provisions have also been revised 
to allow the optional use of CEMS to monitor particulate matter and 
mercury. Other revisions include:
     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 eight-hour block average for measuring activated carbon 
injection rate;
     A provision for waiver of operating parameter limits 
during the mercury performance test and for two weeks preceding the 
test, as is already allowed for dioxin testing;
     A revision to relative accuracy criteria 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 nine 
months and no more than 15 months since the previous test;
     Allowing 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.
    In response to the amended EGs, Maine DEP made two revisions to the 
06-096 Code of Maine Regulations (CMR) Chapter 121, entitled ``Emission 
Limitations and Emission Testing of Resource Recovery Facilities,'' 
effective on November 14, 2007 and September 14, 2019, respectively. 
The provisions for new Large MWCs covered in 06-096 CMR Chapter 121, 
Section 6., entitled ``Large Municipal Waste Combustor Units Subject to 
40 CFR part 60, subpart Eb'' were excluded from the State Plan.

V. Why did Maine DEP submit a Small MWC state plan?

    The EPA originally promulgated the EGs for large and Small MWCs on 
December 19, 1995. In 1997, the United States Court of Appeals for the 
District of Columbia Circuit vacated the initial MWC unit rules, 
subparts Cb and Eb as they apply to MWC units with a capacity to 
combust less than or equal to 250 TPD of MSW (i.e., Small MWCs). As a 
result, subparts Cb and Eb were amended to apply only to MWC units with 
the capacity to combust more than 250 TPD of MSW per unit (i.e., Large 
MWCs). In response to the court's decision, on December 6, 2000, EPA 
promulgated an NSPS applicable to new Small MWCs (i.e., capacities of 
35 to 250 TPD), an EGs applicable to existing (i.e., construction 
commenced on or before August 30, 1999) Small MWCs. The NSPS and EGs 
are codified at 40 CFR part 60, subparts AAAA and BBBB, respectively 
(65 FR 76350 and 76378). The Small MWC rule regulates the following air 
pollutants: particulate matter, opacity, sulfur dioxide, hydrogen 
chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, 
and dioxins and dibenzofurans.
    As required by Section 129(b)(3) of the Act, on January 31, 2003 
EPA promulgated a Federal Plan (FP) for small MWCs that commenced 
construction on or before August 30, 1999. The FP is a set of maximum 
available control technology (MACT) requirements that implement the EG. 
It is applicable to those small, existing MWC units not specifically 
covered by an approved State Plan under sections 111(d) and 129 of the 
CAA. In addition, it fills a Federal enforceability gap until State 
Plans are approved and ensures that the MWC units stayed on track to 
complete, in an expeditious manner, pollution control equipment 
retrofits in order to meet the final compliance dates on or before of 
May 6, 2005.
    Maine DEP revised the 06-096 CMR Chapter 121, entitled ``Emission 
Limitations and Emission Testing of Resource Recovery Facilities'' in 
2007 and 2019 to regulate existing Small MWCs currently covered by the 
FP. Maine's State Plan submission seeks Federal approval such that the 
FP will no longer apply to existing Small MWCs in Maine, and Maine will 
implement and enforce the State Plan in lieu of the FP. This State Plan 
incorporates the requirements in 40 CFR part 60, subparts B and BBBB.

VI. Review of Maine DEP's State Plan

A. State Plan Elements Applicable to Large and Small MWCs

    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.
    Maine DEP has demonstrated the state's legal authority to carry out 
the 111(d)/129 State Plan under state statutes of 38 Maine Revised 
Statutes sections 585 ``Establishment of emission standards,'' 585-B 
``Hazardous air pollutant standards,'' and 590 ``Licensing.''
    Maine's enforceable mechanisms for implementing the State Plan are 
06-096 CMR Chapter 121, ``Emission Limitations and Emission Testing of 
Resource Recovery Facilities'' and Chapter 140, Part 70 ``Air Emission 
License Regulations.''
    Maine DEP's State Plan provides an updated inventory of affected 
MWC facilities. Penobscot Energy Recovery Company, Limited Partnership, 
and ecomaine (formerly Regional Waste Systems, Inc.) are Large MWCs, 
and Mid-Maine Waste Action Corporation is a Small MWC. Two facilities 
have shut down, Maine Energy Recovery Company Limited Partnership and 
Northern Aroostook Regional Incinerator Facility (NARIF).\1\ An 
inventory of the emissions from the affected sources has been provided 
as part of the State Plan.
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    \1\ NARIF was included in Maine DEP's inventory of sources, but 
the facility ceased operations in March 1991 pursuant to a consent 
decree with EPA, and the facility was never subject to Federal MWC 
standards.
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    Emissions limits, compliance schedules, testing, monitoring, 
recordkeeping, and reporting are established in the State Plan and 
apply to sources based on the size of the facility and the date of 
construction; the following Sections VII. B. and C. review the 
revisions to 06-096 CMR Chapter 121 that are at least as stringent as 
the Federal EGs. Note that the State Plan also provides the license 
limits for each of the identified sources; some license limits are more 
stringent that the emissions limitations established 06-096 CMR Chapter 
121.
    Maine DEP's State Plan includes public hearing records and a 
commitment to submit annual state progress reports on facility 
compliance to EPA.

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B. Revised Requirements for Large MWCs Constructed on or Before 
September 20, 1994 in 06-096 CMR Chapter 121

1. Emissions Limits
    Emissions limits are established in 06-096 CMR Chapter 121 and 
incorporate limits by reference from 40 CFR part 60, subpart Cb except 
for where the state has more stringent standards. The State Plan has 
more stringent standards for mercury, sulfur dioxide and dioxans/
furans.
2. Operating Practices
    The State Plan requires affected sources to follow the operating 
practices specified in 40 CFR part 60, subpart Eb.
3. Operator Training
    The State Plan requires operator training and certification as 
established under 40 CFR part 60, subpart Eb and according to the 
schedule specified in 40 CFR part 60, subpart Cb.
4. Compliance and Performance Testing Requirements
    Compliance and performance testing requirements are incorporated by 
reference from 40 CFR part 60, subpart Eb except as provided for under 
40 CFR part 60, subpart B. In addition, the State Plan establishes 
procedures for common stack testing, requirements for alternative 
performance testing schedule for dioxins/furans in certain conditions, 
requirements for initial performance testing, and requirements for 
emissions testing for arsenic, nickel, chromium and beryllium. Testing 
for arsenic, nickel, chromium and beryllium is not required by the 
Federal EGs.
5. Reporting, Recordkeeping and Compliance Schedules
    The State Plan requires affected facilities to report to Maine DEP 
facility operating status and facility process data, pollutant emission 
data, combustion process data, and summary emission limitations as 
established by license conditions.
    The State Plan requires emission test reports and recordkeeping to 
meet the requirements set forth in 40 CFR part A, except for the siting 
requirements under 40 CFR part 60, subpart Eb. In addition, the State 
Plan also establishes requirements for reporting to Maine DEP.
    The State Plan incorporates by reference the compliance schedule 
specified in 40 CFR part 60, subpart Cb and establishes licensing 
requirements for affected sources.

C. Requirements for Small MWCs Established in 06-096 CMR Chapter 121

1. Emissions Limits
    Emission limits are incorporated by reference from 40 CFR part 60, 
subpart BBBB. The State Plan has more stringent standards for 
particulate matter, cadmium, lead, mercury, nitrogen oxides, dioxins/
furans, sulfur dioxide, hydrogen chloride and carbon monoxide.
2. Operating Practices
    The State Plan requires affected sources to follow the operating 
practices specified in 40 CFR part 60, subpart BBBB.
3. Operator Training
    The State Plan requires operator training and certification as 
established under 40 CFR part 60, subpart BBBB.
4. Compliance and Performance Testing
    The State Plan establishes requirements for owners and operators to 
prepare and submit a performance testing plan for approval by Maine DEP 
prior to facility start up. The State Plan establishes an emission 
testing schedule and a process to request an alternative testing 
schedule. The State Plan references EPA Methods from 40 CFR part 60, 
Appendix A to establish requirements for emission testing of oxygen (or 
carbon dioxide), hydrogen chloride, particulate matter, metals and 
fugitive emissions. The State Plan requires all affected facilities to 
install and operate instruments for continuous emissions monitoring for 
carbon monoxide, sulfur dioxide and opacity and specifies requirements 
for compliance demonstration and instrumentation, including reference 
to 40 CFR part 60, Appendices B and F.
5. Reporting and Recordkeeping
    The State Plan requires affected facilities to report to Maine DEP 
facility operating status and facility process data, pollutant emission 
data, combustion process data, and summary emission limitations as 
established by license conditions. The State Plan also establishes 
reporting requirements for exceedances, maintenance of records and 
submission of reports to Maine DEP.

VII. Why is EPA proposing to approve Maine DEP's State Plans for Large 
and Small MWCs?

    EPA has evaluated the revised State Plan for existing Large MWCs 
and the initial State Plan for existing Small MWCs submitted by Maine 
DEP for consistency with the Act, the May 2006 EGs for Large MWCs, the 
December 2000 EGs for Small MWCs and EPA guidelines and policy. EPA has 
determined that Maine DEP's State Plan that was submitted on December 
24, 2019 meets all requirements and, therefore, EPA is proposing to 
approve MassDEP's Plan to implement and enforce the EGs, as they apply 
to existing Large and Small MWCs. Upon the effective date of this 
notice, the Federal Plan will no longer apply to existing Small MWCs in 
Maine and Maine will implement and enforce the State Plan in lieu of 
the Federal Plan.
    EPA's proposal to approve Maine DEP's State Plan is based on our 
findings that:
    (1) Maine DEP provided adequate public notice of public hearings 
for the proposed rule-making, which allows Maine to carry out and 
enforce provisions that are at least as protective as the EGs for Large 
and Small MWCs, and
    (2) Maine DEP demonstrated its legal authority to: adopt emission 
standards and compliance schedules applicable to the designated 
facilities; enforce applicable laws, regulations, standards and 
compliance schedules; 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.

VIII. Proposed Action

    EPA is proposing to approve the Maine DEP's revised State Plan for 
existing Large MWCs and the initial State Plan for existing Small MWCs. 
EPA is soliciting public comments on the issues discussed in this 
notice or on other relevant matters. These comments will be considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to this 
proposed rule by following the instructions listed in the ADDRESSES 
section of this Federal Register.

IX. Incorporation by Reference

    In this rulemaking, the EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the provisions of 06-096 CMR Chapter 12, 
entitled ``Emissions Limitations and Emissions Testing of Resource 
Recovery Facilities,'' effective September 14, 2019, excluding Section 
6., entitled

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``Large Municipal Waste Combustor Units Subject to 40 CFR part 60, 
subpart Eb,'' which regulate emissions and emissions testing for large 
and small MWCs. The EPA has made, and will continue to make, these 
documents generally available through https://www.regulations.gov and 
at the EPA Region 1 Office (please contact the person identified in the 
FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information).

X. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
State Plan submission that complies with the provisions of the Act and 
applicable Federal regulations. See Clean Air Act sections 111(d) and 
129(b); 40 CFR part 60, subparts B and Cb; and 40 CFR part 62, subpart 
A; and 40 CFR 62.04. Thus, in reviewing state plan submissions, EPA's 
role is to approve state choices, provided that they meet the criteria 
of the Clean Air Act. Accordingly, this proposed 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 proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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 rulemaking 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 proposed 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, Air pollution control, Administrative 
practice and procedure, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements, Sulfur oxides, 
Waste treatment and disposal.

    Dated: September 15, 2022.
David Cash,
Regional Administrator, EPA Region 1.
[FR Doc. 2022-20379 Filed 9-23-22; 8:45 am]
BILLING CODE 6560-50-P