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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region 2 Docket No. NY28-2-180b, FRL-6134-7]

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 approving the

State Plan submitted by New York to fulfill the requirements of

sections 111(d)/129 of the Clean Air Act for Municipal Waste Combustors

(MWC). The State Plan addresses the implementation and enforcement of

the Emissions Guidelines (EG) applicable to existing large MWC units

with individual capacity to combust more than 250 tons per day of

municipal solid waste. The State Plan imposes emission limits and

control requirements for the existing MWC's in New York which will

reduce the designated pollutants.

DATES: This direct final rule is effective on October 5, 1998 without

further notice, unless EPA receives adverse comment by September 3,

1998. If adverse comment is 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: Ronald J. Borsellino,

Chief, Air Programs Branch, Environmental Protection Agency, Region 2

Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

Copies of the state submittal are available at the following

addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 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, 50 Wolf Road, Albany, New York 12233.

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Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, S.W., Washington,

D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Christine DeRosa or Kirk Wieber, Air

Programs Branch, Environmental Protection Agency, Region 2 Office, 290

Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Background

On December 19, 1995, pursuant to sections 111 and 129 of the Clean

Air Act (Act), EPA promulgated new source performance standards (NSPS)

applicable to new Municipal Waste Combustors (MWCs) and Emission

Guidelines (EG) applicable to existing MWCs. The NSPS and EG are

codified at 40 CFR part 60, subparts Eb and Cb, respectively, see 60 FR

65387. Subparts Cb and Eb regulate the following designated pollutants:

particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides

of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and

dibenzofurans.

On April 8, 1997, the United States Court of Appeals for the

District of Columbia Circuit vacated subparts Cb and Eb as they apply

to MWC units with capacity to combust less than or equal to 250 tons

per day (tpd) of municipal solid waste (small MWCs), consistent with

their opinion in Davis County Solid Waste Management and Recovery

District v. EPA, 101 F.3d 1395 (D.C. Cir. 1996), as amended, 108 F.3d

1454 (D.C. Cir. 1997). As a result, subparts Eb and Cb apply only to

MWC units with individual capacity to combust more than 250 tpd of

municipal solid waste (large MWC units). Under section 129 of the Act,

emission guidelines are not federally enforceable. Section 129(b)(2) of

the Act requires states to submit to EPA for approval State Plans that

implement and enforce the emission guidelines. 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, see 60 FR 65414. This action approves the State Plan

submitted by New York to implement and enforce subpart Cb, as it

applies to existing large MWC units with individual capacity to combust

more than 250 tpd of municipal solid waste.

State Submittal

On December 15, 1997, the New York State Department of

Environmental Conservation (NYSDEC) submitted to EPA a section 111(d)/

129 plan to implement 40 CFR part 60 subpart Cb--Emission Guidelines

for existing large MWC units located in New York State. This submittal

was supplemented by the NYSDEC on June 22, 1998. New York's submittal

as supplemented included: the necessary legal authority; enforceable

mechanisms; enforceable compliance schedules; inventory of MWC units;

emissions inventory; testing, monitoring, recordkeeping, and reporting

requirements; provision for annual state progress reports; and record

of public hearing. New York held a public hearing on May 27, 1998 for

all of the required elements of the MWC State Plan.

Review of State Submittal

New York has adopted by reference the requirements of the emissions

guidelines (including emissions limitations, testing, monitoring,

recordkeeping and reporting requirements) in Part 200 of title 6 of the

New York Code of Rules and Regulations of the State of New York,

entitled, ``General Provisions'' and will enforce the requirements

under Part 201, entitled, ``Permits and Registration'' both effective

July 7, 1996. By incorporating the EG by reference into Part 200,

NYSDEC has the authority to include them as applicable requirements in

permits of emission sources subject to such requirements and to enforce

such requirements.

New York included in its submittal an inventory of all seven MWC

plants/units in the State affected by the State Plan. New York has also

confirmed that affected units located in New York State that have

ceased operation are either partially or totally dismantled. Facilities

that have chosen a schedule for compliance that exceeds one year

following State Plan approval have provided post-1990 dioxin/furan test

results and these were included in New York's submittal.

The schedules for compliance with the requirements incorporated by

reference in Part 200 for each of the seven affected facilities were

included as part of New York's submittal to EPA. These schedules are

enforceable and have been incorporated into each facility's existing

State operating permit and will also be incorporated into each

facility's Title V permit. In addition, the Title V permits for each

facility, once issued, will contain the applicable requirements of 40

CFR part 60, subpart Cb (EG for existing large MWC's) that were

incorporated by reference in New York's Part 200. These include

emission limitations, operating requirements, testing requirements and

training requirements. The Title V permit process will include a public

hearing for each affected facility.

New York will submit to EPA annual reports on the progress in the

implementation of the State Plan. These will be incorporated into the

reports required by 40 CFR part 51, Sec. 51.321, ``Annual source

emissions and state action report.'' These reports will include

compliance status, enforcement actions, increments of progress,

identification of sources that have ceased operation or started

operation, emissions inventory information for sources that have

started operation, updated emission inventory and compliance

information, and copies of technical reports on all performance testing

and monitoring, including concurrent process data.

Conclusion

EPA has evaluated the MWC State Plan submitted by New York for

consistency with the Act, EPA guidelines and policy. EPA has determined

that New York's State Plan meets all requirements and, therefore, EPA

is approving New York's Plan to implement and enforce subpart Cb, as it

applies to existing large MWC units with individual capacity to combust

more than 250 tpd of municipal solid waste.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

relevant 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 Plan

should relevant adverse comments be filed. This rule will be effective

October 5, 1998 without further notice unless the Agency receives

relevant adverse comments by September 3, 1998.

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 on

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this rule. Only parties interested in commenting on this rule should do

so at this time. If no such comments are received, the public is

advised that this rule will be effective on October 5, 1998 and no

further action will be taken on the proposed rule.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State Plan. Each request for revision to the State Plan

shall be considered separately in light of specific technical,

economic, and environmental factors and in relation to relevant

statutory and regulatory requirements.

II. Administrative Requirements

Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from E.O. 12866 review.

Executive Order 13045

The final rule is not subject to E.O. 13045, entitled ``Protection

of Children from Environmental Health Risks and Safety Risks,'' because

it is not an ``economically significant'' action under E.O. 12866.

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 final rule will not have a significant impact on a substantial

number of small entities because State Plan approvals under section 111

of the Act do not create any new requirements but simply approve

requirements that the State is already imposing. Therefore, because the

Federal State Plan approval does not impose any new requirements, I

certify that this action will not have a significant economic impact on

a substantial number of small entities. Moreover, due to the nature of

the Federal-State relationship under the Clean Air Act, preparation of

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning State Plans on such grounds. Union Electric Co.,

v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Unfunded Mandates

Under section 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

annual costs to state, local, or tribal governments in the aggregate;

or to 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 annual costs of

$100 million or more to either state, 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, local, or

tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

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 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. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by October 5, 1998. 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, Municipal waste combustors, Reporting and recordkeeping

requirements.

Dated: July 24, 1998.

William J. Muszynski,

Acting 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 Sec. 62.8103 and an undesignated

heading to subpart HH to read as follows:

Metals, Acid Gases, Organic Compounds and Nitrogen Oxide Emissions

From Existing Municipal Waste Combustors With the Capacity to

Combust Greater Than 250 Tons Per Day of Municipal Solid Waste

Sec. 62.8103 Identification of plan

(a) The New York State Department of Environmental Conservation

submitted to the Environmental Protection Agency a ``State Plan for

implementation and enforcement of 40 CFR part 60, subpart Cb, Emissions

Guidelines for Large Municipal Waste Combustors'' on December 15, 1997

and supplemented on June 22, 1998.

(b) Identification of sources: The plan applies to existing

facilities with a municipal waste combustor unit capacity greater than

250 tons per day of municipal solid waste.

[FR Doc. 98-20771 Filed 8-3-98; 8:45 am]

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