Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Oklahoma

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[OK-15-1-7399a: FRL-6183-5]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Oklahoma

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the State Plan submitted by the State of

Oklahoma on July 10, 1998. The plan was developed in accordance with

sections 111 and 129 of the Clean Air Act, and provides for

implementation and enforcement of the Emissions Guidelines (EG)

applicable to existing Municipal Waste Combustors (MWCs) with capacity

to combust more than 250 tons per day of municipal solid waste (MSW)

(see 40 CFR part 60, subpart Cb).

DATES: This direct final rule is effective January 5, 1999 without

further notice, unless EPA receives adverse comment by December 7,

1998. If adverse comments are received, EPA will publish a timely

withdrawal of the

[[Page 59888]]

direct final rule in the Federal Register and inform the public that

the rule will not take effect.

ADDRESSES: Written comments should be addressed to: Mr. Thomas H.

Diggs, Chief, Air Planning Section, EPA Region 6, 1445 Ross Avenue,

Suite 1200, Dallas, TX 75202. Copies of documents relative to this

action are available for public inspection during normal business hours

at the following locations. The interested persons wanting to examine

these documents should make an appointment with the appropriate office

at least 24 hours before the visiting day.

Air Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 6, Air Planning Section,

1445 Ross Avenue, Suite 1200, Dallas, TX 75202, telephone (214) 665-

7214.

Oklahoma Department of Environmental Quality, 707 North Robinson,

Oklahoma City, OK 73101-1677, telephone (405) 702-4100.

FOR FURTHER INFORMATION CONTACT:

Lt. Mick Cote, Air Planning Section, 1445 Ross Avenue, Suite 1200,

Dallas, TX 75202, telephone (214) 665-7219.

SUPPLEMENTARY INFORMATION:

I. Background

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

Air Act (the Act), EPA promulgated New Source Performance Standards

(NSPS) applicable to new MWCs and 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: 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 of MSW (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 tons per day of MSW (large MWC

units).

Under section 129 of the Act, EG are not Federally enforceable.

Section 129(b)(2) of the Act requires states to submit to EPA for

approval, 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. The EPA originally

promulgated the subpart B provisions on November 17, 1975. The 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 plan submitted by Oklahoma to implement

and enforce subpart Cb, as it applies to large MWC units.

II. Discussion

Oklahoma submitted to EPA on July 10, 1998, the following in their

111(d)/129 State Plan for implementation and enforcement of the EG for

existing MWCs under their direct jurisdiction in the State of Oklahoma

pursuant to 40 CFR 60.23 through 60.26: Demonstration of Legal

Authority; Enforceable Mechanism; Inventory of MWC Plants/Units; MWC

Emissions Inventory; Emission Limits; Compliance Schedule; Testing,

Monitoring, Recordkeeping and Reporting Requirements; Demonstration

that the Public had Adequate Notice and Opportunity to Submit Written

Comments; Provisions for Submittal of Progress Reports to EPA; and

applicable State of Oklahoma statutes. Oklahoma submitted its State

Plan after the Court of Appeals vacated subpart Cb as it applies to

small MWC units. Thus, the Oklahoma State Plan covers only large MWC

units.

One MWC facility exists in Oklahoma with units affected by the MWC

EG. This facility is owned by the City of Tulsa, and operated by Ogden-

Martin Systems of Tulsa, Incorporated. The Facility has three MWC

units, each with the capacity to burn more than 250 tons per day of

municipal solid waste.

The approval of the Oklahoma State Plan is based on finding that:

(1) The Oklahoma Department of Environmental Quality (ODEQ) provided

adequate public notice of public hearings for the proposed rulemaking

and State Plan which allow the ODEQ to implement and enforce the EG for

large MWCs, and (2) the ODEQ also demonstrated legal authority to adopt

emission standards and compliance schedules applicable to the

designated facility; enforce applicable laws, regulations, standards

and compliance schedules; seek injunctive relief; obtain information

necessary to determine compliance; require recordkeeping; conduct

inspections and tests; require the use of monitors; require emission

reports of owners and operators; and make emission data publicly

available. Please see the Region & Evaluation Report and the State Plan

submittal, as enclosed in the official file, for the detailed technical

evaluation of the Oklahoma State Plan.

III. Final Action

The EPA is approving the above referenced State Plan because it

meets the Agency requirements. The EPA is publishing this rule without

prior proposal because the Agency views this as a noncontroversial

amendment and anticipates no adverse comments. However, in the proposed

section of this Federal Register publication, the 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 January 5, 1999 without further notice unless, by December 7,

1998, relevant adverse comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on the proposed action. The

EPA will not institute a second comment period. Any parties interested

in commenting on this action should do so at this time. If no such

comments are received, the public is advised that this action will be

effective January 5, 1999.

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.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government,

[[Page 59889]]

unless the Federal Government provides the funds necessary to pay the

direct compliance costs incurred by those governments. If the mandate

is unfunded, EPA must provide to the Office of Management and Budget a

description of the extent of EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates. Today's rule does not create

a mandate on state, local or tribal governments. The rule does not

impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide the Office of Management and Budget, in a separately

identified section of the preamble to the rule, a description of the

extent of EPA's prior consultation with representatives of affected

tribal governments, a summary of the nature of their concerns, and a

statement supporting the need to issue the regulation. In addition,

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. Accordingly, the requirements of section 3(b) of

E.O. 13084 do not apply to this rule.

E. 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 Clean Air 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 create 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 on such grounds. Union

Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.

7410(a)(2).

F. 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 mostly 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.

The 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.

G. Submission to Congress and the Comptroller General

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. The 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 rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. Petitions for Judicial Review

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 December 7, 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, Municipal waste

combustors, Reporting and recordkeeping requirements.

[[Page 59890]]

Dated: October 28, 1998.

Lynda F. Carroll,

Acting Regional Administrator, Region 6.

40 CFR Part 62 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 LL--Oklahoma

2. Section 62.9100 is amended by adding paragraphs (b)(3) and

(c)(3) as follows:

Sec. 62.9100 Identification of plan.

* * * * *

(b) * * *

(3) Oklahoma State Plan for Existing Large Municipal Waste

Combustors, submitted on July 10, 1998, by the Oklahoma Department of

Environmental Quality.

(c) * * *

(3) Existing municipal waste combustors.

3. Subpart LL is amended by adding a new Sec. 62.9150 and a new

undesignated center heading 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. 62.9150 Identification of sources.

The plan applies to existing facilities with a municipal waste

combustor (MWC) unit capacity greater than 250 tons per day of

municipal solid waste (MSW) at the following MWC site: Ogden-Martin

Systems of Tulsa, Incorporated, 2122 South Yukon Avenue, Tulsa, OK

74107.

[FR Doc. 98-29654 Filed 11-5-98; 8:45 am]

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