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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[AL-048-1-9901a; FRL-6188-9]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Alabama

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA) is

approving the sections 111(d)/129 State Plan submitted by the Alabama

Department of Environmental Management (ADEM) for the State of Alabama

on September 11, 1998, for implementing and enforcing 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 19, 1999 without

further notice, unless EPA receives adverse comments by December 18,

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: Kimberly Bingham, EPA

Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia

30303-3104.

Copies of materials submitted to EPA may be examined during normal

business hours at the following locations: EPA Region 4, Atlanta

Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104; and

at the Alabama Department of Environmental Management, Air Division,

1751 Congressman W.L. Dickinson Drive, Montgomery, Alabama 36109.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038 or

Scott Davis at (404) 562-9127.

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 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 Cb and Eb apply only to MWC units with individual

capacity to combust more than 250 tons per day of MSW (large MWC

units).

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

approval State 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. 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 ADEM for the State

of Alabama to implement and enforce subpart Cb, as it applies to large

MWC units only.

II. Discussion

ADEM submitted to EPA on September 11, 1998, the following in their

111(d)/129 State Plan for implementing and enforcing the EG for

existing MWCs under their direct jurisdiction in the State of Alabama:

Public Participation Demonstration That the Public Had Adequate Notice

and Opportunity to Submit Written Comments and Attend the Public

Hearing; Legal Authority; Emission Limits and Standards; Compliance

Schedule; Inventory of MWC Plant/Units; MWC Emissions Inventory; Source

Surveillance, Compliance Assurance, and Enforcement Procedures;

Submittal of Progress Reports to EPA; Federally Enforceable State

Operating Permit (FESOP) for the Solid Waste Disposal Authority of the

City of Huntsville MWC facility; and applicable State of Alabama

statutes and rules of the ADEM. ADEM submitted its Plan after the Court

of Appeals vacated subpart Cb as it applies to small MWC units. Thus,

the Alabama State Plan covers only large MWC units. As a result of the

Davis decision and subsequent vacatur order, there are no EG

promulgated under sections 111 and 129 that apply to small MWC units.

Accordingly, EPA's review and approval of the Alabama State Plan for

MWCs addresses only those parts of the Alabama State Plan which affect

large MWC units. Small units are not subject to the requirements of the

Federal Rule and not part of this approval. Until EPA again promulgates

EG for small MWC units, EPA has no authority under section 129(b)(2) of

the Act to review and approve State Plans applying state rules to small

MWC units.

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

(1) ADEM provided adequate public notice of public hearings for the

proposed plan and FESOP which allow ADEM to implement and enforce the

EG for large MWCs, and (2) ADEM 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.

In part F and attachment C of the Plan, ADEM cites the following

references for the legal authority: Opinion of the Region 4

Administrator in response to the Governor of the State of Alabama; The

Alabama Environmental Management Act, section 22-22A, Code of Alabama

1975, as amended; The Alabama Air Pollution Control Act, section 22-28,

Code of Alabama 1975, as amended; The ADEM Administrative Code, Rule

335-3-1-.04. These statutes and regulations are contained in appendix

C. On the basis of these statutes and rules of the State of Alabama,

the State Plan and FESOP are approved as being at least as

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protective as the Federal requirements for existing large MWC units.

ADEM cites all emission standards and limitations for the major

pollutant categories as conditions in the FESOP for the City of

Huntsville MWC, the only designated facility in the State of Alabama

subject to these standards and limitations (in appendix B of the Plan).

These standards and limitations in the FESOP have been approved as

being at least as protective as the Federal requirements contained in

subpart Cb for existing large MWC units.

ADEM submitted the compliance schedule for the City of Huntsville

MWC, the only large MWC under their direct jurisdiction in the State of

Alabama. Part G of the Plan and the FESOP contain conditions consistent

with 40 CFR part 60, subparts B and Cb, specifications for compliance

schedules. This portion of the Plan and FESOP have been reviewed and

approved as being at least as protective as Federal requirements for

existing large MWC units.

In part G of the Plan, ADEM submitted an emissions inventory of all

designated pollutants for the City of Huntsville MWC, the only large

MWC under their direct jurisdiction in the State of Alabama. This

portion of the Plan has been reviewed and approved as meeting the

Federal requirements for existing large MWC units.

ADEM includes its legal authority to require owners and operators

of designated facilities to maintain records and report to their Agency

the nature and amount of emissions and any other information that may

be necessary to enable their Agency to judge the compliance status of

the facilities in part G of the State Plan and as conditions in the

FESOP for the City of Huntsville MWC. In part G, the ADEM also cites

its legal authority to provide for periodic inspection and testing and

provisions for making reports of MWC emissions data, correlated with

emission standards that apply, available to the general public. Part G

of the State Plan outlines the authority to meet the requirements of

monitoring, recordkeeping, reporting, and compliance assurance. These

referenced State of Alabama rules are contained in appendix C of the

Plan. This portion of the Plan and FESOP have been reviewed and

approved as being at least as protective as the Federal requirements

for existing large MWC units.

As stated in part G of the Plan, ADEM will provide progress reports

of Plan implementation updates to the EPA on an annual basis. These

progress reports will include the required items pursuant to 40 CFR

part 60, subpart B. This portion of the Plan has been reviewed and

approved as meeting the Federal requirement for State Plan reporting.

This action approves the State Plan submitted by ADEM for the State

of Alabama to implement and enforce subpart Cb, as it applies to large

MWC units only.

III. Final Action

This action approves the State Plan submitted by ADEM for the State

of Alabama to implement and enforce Subpart Cb, as it applies to large

MWC units only. The EPA is publishing this rule without prior proposal

because the Agency views this as a noncontroversial submittal and

anticipates no 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 SIP revision

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

19, 1999 without further notice unless the Agency receives adverse

comments by December 18, 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. Parties interested in commenting

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

is advised that this rule will be effective on January 19, 1999 and no

further action will be taken on the proposed rule.

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, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, E.O. 12875 requires EPA to

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 EPA complies by

consulting, E.O. 13084 requires EPA to provide to 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, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful

[[Page 63990]]

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. This action does not involve

or impose any requirements that affect Indian Tribes. 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 SIP approvals under

section 110 and subchapter I, part D 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 SIP 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 concerning SIPs 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 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.

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. 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).

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 January 19, 1999. 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, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Municipal waste

combustors, Reporting and recordkeeping requirements.

Dated: November 4, 1998.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

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. 7401-7642.

Subpart B--Alabama

2. Part 62.100 is amended by adding paragraphs (b)(4) and (c)(4) to

read as follows:

Sec. 62.100 Identification of plan.

* * * * *

(b) * * *

(4) State of Alabama Plan for Implementation of 40 CFR part 60,

Subpart Cb, For Existing Municipal Waste Combustors, submitted on

September 11, 1998, by the Alabama Department of Environmental

Management.

(c) * * *

(4) Existing municipal waste combustors.

3. Subpart B is amended by adding a new Sec. 62.104 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. 62.104 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 sites:

(a) Solid Waste Disposal Authority of the City of Huntsville MWC,

Huntsville, Alabama.

(b) [Reserved]

[FR Doc. 98-30602 Filed 11-17-98; 8:45 am]

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