Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Massachusetts; Plan for Controlling MWC Emissions From Existing MWC Plants

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Docket # MA-068-7203a; FRL-6377-1]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants: Massachusetts; Plan for Controlling MWC

Emissions From Existing MWC Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The United States Environmental Protection Agency (EPA)

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

Massachusetts Department of Environmental Protection on January 11,

1999. This State Plan is for implementing and enforcing provisions at

least as protective as the Emissions Guidelines (EG) applicable to

existing Municipal Waste Combustors (MWCs) units with capacity to

combust more than 250 tons/day of municipal solid waste (MSW). See 40

CFR part 60, subpart Cb.

DATES: This direct final rule is effective on September 13, 1999

without further notice unless EPA receives significant, material and

adverse comment by August 13, 1999. If EPA receives adverse comment by

the above date, we 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: You should address your written comments to: Mr. Gerald

Potamis, Chief, Air Permits Unit, Office of Ecosystem Protection, U.S.

EPA-New England, Region 1, One Congress Street, Suite 1100 (CAP),

Boston, Massachusetts 02114-2023.

Documents which EPA has incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

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

D.C. 20460. You may examine copies of materials the DEP submitted to

EPA relative to this action 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 day of the visit.

Environmental Protection Agency-New England, Region 1, Air Permits

Unit, Office of Ecosystem Protection, Suite 1100, One Congress Street,

Boston, Massachusetts 02114-2023.

Massachusetts Department of Environmental Protection, Bureau of

Waste Prevention, Division of Business Compliance, One Washington

Street, Boston, Massachusetts 02108, (617) 556-1120.

FOR FURTHER INFORMATION CONTACT: John Courcier at (617) 918-1659.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?

II. When did these requirements first become known?

III. When does the State Plan become effective?

IV. What happens to the Federal Plan after the effective date of the

State Plan?

V. Who must comply with the requirements?

VI. By what date must MWCs in Massachusetts achieve compliance?

VII. What pollutants must be controlled?

VIII. What emission controls are necessary to achieve compliance?

IX. What happens if an MWC does not/cannot meet the requirements by

the final compliance date?

X. What options are available to operators if they cannot achieve

compliance within one year of the effective date of the State Plan?

XI. What did the state submit as part of its State Plan?

XII. How did the state show that its plan is approvable?

XIII. Will these requirements force some plants to close?

XIV. When did EPA publish the rules?

XV. Why does EPA need to approve State Plans?

XVI. Administrative Requirements

I. What action is EPA taking today?

EPA is approving the above referenced State Plan. However, we

should note that by approving only the State Plan, EPA is taking no

action on the proposed SIP revisions the MADEP also submitted with its

State Plan. EPA will take action on these proposed SIP revisions and

publish its findings in a future Federal Register document.

EPA is publishing this approval action without prior proposal

because the Agency views this as a noncontroversial action 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 State Plan

should relevant adverse comments be filed. If EPA receives no

significant, material, and adverse comments by August 13, 1999, this

action will be effective September 13, 1999.

If EPA receives significant, material, and adverse comments by the

above date, we will withdraw this action before the effective date by

publishing a subsequent document in the Federal Register that will

withdraw this final action. EPA will address all public

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comments received in a subsequent final rule based on the parallel

proposed rule published in today's Federal Register. EPA will not

institute a second comment period on this action. Any parties

interested in commenting on this action should do so at this time. If

EPA receives no comments, this action will be effective September 13,

1999.

EPA's approval of MADEP's State Plan is based on our findings that:

(1) MADEP provided adequate public notice of public hearings for

the proposed rule-making that allows Massachusetts to carry out and

enforce provisions that are at least as protective as the EG for large

MWCs, and

(2) MADEP demonstrated 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 recordkeeping; conduct inspections and

tests; require the use of monitors; require emission reports of owners

and operators; and make emission data publicly available.

II. When did these requirements first become known?

Some form of the EG was first published in the Federal Register in

1989. On December 19, 1995, according to sections 111 and 129 of the

Clean Air Act (Act), the EPA published the current form of the EG

applicable to existing MWCs. The EG are at 40 CFR part 60, subpart

Cb. See 60 FR 65387 and the Background section.

III. When Does the State Plan Become Effective?

This direct final rule is effective on September 13, 1999 without

further notice unless as explained under A. above, unless EPA receives

adverse comment by August 13, 1999.

IV. What Happens to the Federal Plan After the Effective Date of

the State Plan?

The Federal Plan is an interim action. On the effective date of

this action, the Federal Plan will no longer apply to MWC units covered

by the State Plan.

V. Who Must Comply With the Requirements?

The State Plan affects all MWCs:

1. With a combustion capacity greater than 250 tons per day of

municipal solid waste (large MWC units), and

2. Which commenced construction on or before September 20, 1994

(existing MWC units).

MADEP submitted its Plan after the Court of Appeals vacated 40 CFR

part 60, subpart Cb as it applies to small MWC units. Thus, the

Massachusetts State Plan covers only large, existing MWC units. Small

units are not subject to the requirements of subpart Cb and not subject

to this approval.

VI. By What Date Must MWCs in Massachusetts Achieve Compliance?

All existing large MWC units in the state of Massachusetts must

comply with these requirements by December 19, 2000.

VII. What Pollutants Must Be Controlled?

Subpart Cb regulates the following pollutants: particulate matter,

opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon

monoxide, lead, cadmium, mercury, and dioxin and dibenzofurans.

VIII. What Emission Controls Are Necessary to Achieve Compliance?

The basis for control of each pollutant is as follows:

a. for PM, opacity, Cd, Pb, and Hg...... GCP and SD/ESP/CI, or GCP and

SD/FF/CI;

b. for dioxin/furan..................... GCP and SD/ESP, or GCP and SD/

FF;

c. for SO2 and HCl...................... GCP and SD/ESP, or GCP and SD/

FF;

d. for NOX.............................. SNCR.

GCP--good combustion practice.

SD--spray dryer.

ESP--electrostatic precipitator.

FF--fabric filter.

CI--carbon injection.

SNCR--selective noncatalytic reduction.

IX. What Happens If An MWC Does Not/Cannot Meet the Requirements By

the Final Compliance Date?

Any existing large MWC unit that fails to meet the requirements by

December 19, 2000 must shut down. The unit will not be allowed to start

up until the owner/operator installs the controls necessary to meet the

requirements.

X. What Options Are Available to Operators If They Cannot Achieve

Compliance Within One Year of the Effective Date of the State Plan?

If an MWC cannot achieve compliance within one year of the

effective date of the State Plan, the operator must agree to meet

certain increments of progress until they achieve compliance. The State

Rule details the increments of progress for the affected MWCs.

XI. What Did the State Submit as Part of its State Plan?

The MADEP submitted to EPA on January 11, 1999 the following

sections 111(d)/129 State Plan components for carrying out and

enforcing the emission guidelines for existing MWCs in the State: Legal

Authority; Emission Standards and Limitations; Compliance Schedule; MWC

Emissions and MWC Plant/Unit Inventories; Procedures for Testing and

Monitoring Sources of Air Pollutants; Source Surveillance, Compliance

Assurance and Enforcement; Demonstration That the Public Had Adequate

Notice and Opportunity to Submit Written Comments and Public Hearing

Summary; and applicable State regulations (MADEP regulations 310 CMR

7.08(2)).

The State Plan excludes the ``Material Separation Plan'' provisions

and definition that are included in its regulation (310 CMR

7.08(2)(f)(7)). EPA may approve the plan without such provisions, since

the material separation plan provisions are not required by the

Emission Guidelines. Consequently, these provisions are not necessary

to make the plan at least as protective as the Emission Guidelines. The

State Plan also excludes the site assignment provisions of its

regulations (310 CMR 7.08(2)(a)).

XII. How Did the State Show That Its Plan Is Approvable?

In appendix A of Massachusetts' Plan, MADEP cites the following in

support of its demonstration of legal authority: Commonwealth of

Massachusetts Attorney General's Demonstration of the Legal Authority

to carry out the requirements of sections 111(d) and 129 of the Clean

Air Act and to enforce the MWC New Source Performance Standards and

Emissions Guidelines.

In appendix B of the State Plan, MADEP cites all emission standards

and limitations for the major pollutant categories related to the

designated sites and facilities. These standards are in MADEP's Air

Pollution Control Regulations 310 CMR 7.08(2) for Municipal Waste

Combustors. On the basis of the Attorney General's Opinion and

Demonstration and the statutes of the Commonwealth of Massachusetts,

EPA approved these standards and limitations under 310 CMR 7.08(2) as

being at least as protective as the Federal requirements contained in

subpart Cb for existing large MWC units.

In its State Plan and section 7.08(2) MWC Regulations, MADEP

established a compliance schedule and legally enforceable increments of

progress for each large MWC. EPA has reviewed and approved this portion

of the State Plan as being at least as protective as Federal

requirements for existing large MWC units.

On pages 4-7 of Massachusetts' Plan, MADEP submitted an emissions

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inventory of all designated pollutants for each of its six large MWCs.

EPA reviewed and approved this portion of the Plan as meeting the

Federal requirements for existing large MWC units.

On page 9, Massachusetts' Plan describes its legal authority to

require owners and operators of designated facilities to maintain

records and report to the State the nature and amount of emissions and

any other information necessary to enable the State to judge the

compliance status of the affected facilities. MADEP also cites its

legal authority to provide periodic inspection and testing and

provisions for making reports of MWC emissions data, correlated with

applicable emission standards, available to the general public. MADEP

incorporated by reference into 310 CMR 7.08(2) the testing, monitoring,

reporting and recordkeeping requirements under 40 CFR part 60. EPA

reviewed and approved all of these State rules as being at least as

protective as the Federal requirements for existing large MWC units.

As stated on page 9 of the State Plan, Massachusetts is committed

to provide annual progress reports of Plan implementation. These

progress reports will include the required items according to 40 CFR

51.323 through 51.326 and 40 CFR part 60, subpart B and appendix D. EPA

reviewed and approved this portion of the Plan as meeting the minimum

Federal requirement for State Plan reporting.

XIII. Will These Requirements Force Some Plants to Close?

EPA has not been notified of any further plant closures. It may be

that an older plant may decide to close rather than pay the cost for

bringing the plant into compliance with the regulations.

XIV. When Did EPA Publish the Rules?

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

Clean Air Act (Act), EPA issued new source performance standards (NSPS)

applicable to new MWCs and emissions 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: particulate matter, opacity, sulfur dioxide, hydrogen

chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury,

and dioxin 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/

day of MSW (small MWCs), consistent with its 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/day of municipal solid waste

(large MWC units).

XV. Why Does EPA Need To Approve State Plans?

Under section 129 of the Act, emission guidelines are not federally

enforceable. Section 129(b)(2) of the Act requires states to submit

State Plans to EPA for approval. Each state must show that its State

Plan will carry out and enforce the emission guidelines. State Plans

must be at least as protective as the emission guidelines, and they

become federally enforceable upon EPA's approval.

The procedures for adopting and submitting State Plans are in 40

CFR part 60, subpart B. EPA originally issued 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.

XVI. 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

To reduce the burden of Federal regulations on States and small

governments, the President issued E.O. 12875 on October 26, 1993,

entitled ``Enhancing the Intergovernmental Partnership.'' Under E.O.

12875, EPA is required to consult with representatives of affected

State, local, and tribal governments, and keep these affected parties

informed about the content and effect of the promulgated standards and

emission guidelines.

In developing the MWC emission guidelines and standards, EPA

consulted with affected State, local, and tribal governments, and kept

those parties informed about the MWC standards and guidelines. EPA

prepared a written statement pursuant to E.O. 12875 which it published

in the 1995 promulgation notice (see 60 FR 65412 to 65413). The EPA has

determined that this State Plan does not include any new Federal

mandates or additional Federal requirements beyond those previously

considered during promulgation of the 1995 MWC guidelines. Therefore,

E.O. 12875 does not require further consultation or information. To the

extent that the State Plan contains requirements that differ from, but

that are at least as protective as, the Federal MWC guidelines, EPA

notes that it has consulted with State government representatives

during the State's development of the Plan, and that affected local and

tribal governments have been provided with information and afforded

opportunities to comment through Massachusetts' public hearing and

comment procedures.

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

that EPA has reason to believe may have a disproportionate effect on

children.

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 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

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of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected and other 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 action does not create any new requirements on any entity

affected by this State Plan. Thus, the action will 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

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

State Plan approvals under section 111(d) and section 129(b)(2) of

the Clean Air Act do not create any new requirements on any entity

affected by this rule, including small entities. They simply approve

requirements that the state is already imposing. Furthermore, in

developing the MWC emission guidelines and standards, EPA prepared a

written statement pursuant to the Regulatory Flexibility Act which it

published in the 1995 promulgation notice (see 60 FR 65413). In

accordance with EPA's determination in issuing the 1995 MWC emission

guidelines, this State Plan does not include any new requirements that

will have a significant economic impact on a substantial number of

small entities. Therefore, because the Federal 111(d) Plan approval

does not impose any new requirements and pursuant to section 605(b) of

the Regulatory Flexibility Act, the Regional Administrator certifies

that this rule will not have a significant impact on a substantial

number of small entities.

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

costs to State, local, or tribal governments in the aggregate, or to

the 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 on by the rule.

In developing the MWC emission guidelines and standards, EPA

prepared a written statement pursuant to section 202 of the Unfunded

Mandates Act which it published in the 1995 promulgation notice (see 60

FR 65405 to 65412). The EPA has determined that this State Plan does

not include any new Federal mandates above those previously considered

during promulgation of the 1995 MWC guidelines. The State Plan does

include an emission limitation for mercury that will be more stringent

than the limit required by the EG. However, that limit is not the

result of a Federal mandate. In approving the State Plan, EPA is

approving pre-existing requirements under State law and imposing no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from EPA's

approval of State Plan provisions that may be more stringent than the

EG requirements, nor will EPA's approval of the State Plan

significantly or uniquely affect small governments. Thus, this action

is not subject to the requirements of sections 202, 203, 204, and 205

of the Unfunded Mandates Act.

G. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as amended by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.

272 note) directs EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus bodies. The NTTAA directs EPA to provide

Congress, through OMB, explanations when the Agency decides not to use

available and applicable voluntary consensus standards.

In approving or disapproving state plans under section 129 of the

Clean Air Act, EPA does not have the authority to revise or rewrite the

State's rule, so the Agency does not have authority to require the use

of particular voluntary consensus standards. Accordingly, EPA has not

sought to identify or require the State to use voluntary consensus

standards. Furthermore, Massachusetts' Plan incorporates by reference

test methods and sampling procedures for existing MWC units already

established by the emissions guidelines for MWCs at 40 CFR part 60,

subpart Cb, and does not establish new technical standards for MWCs.

Therefore, the requirements of the NTTAA are not applicable to this

final rule.

I. 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 September 13, 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), 42

U.S.C. 7607(b)(2)). EPA encourages interested parties to comment in

response to the proposed rule rather than petition for judicial review,

unless the objection arises after the comment period allowed for in the

proposal.

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.

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Dated: July 3, 1999.

John P. DeVillars,

Regional Administrator, Region 1.

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 W--Massachusetts

2. Part 62 is amended by adding a new Sec. 62.5340 and a new

undesignated center heading to Subpart W to read as follows:

Plan for the Control of Designated Pollutants From Existing

Facilities (Section 111(d) Plan)

Sec. 62.5340 Identification of Plan.

(a) Identification of Plan. Massachusetts Plan for the Control of

Designated Pollutants from Existing Plants (Section 111(d) Plan).

(b) The plan was officially submitted as follows:

(1) Control of metals, acid gases, organic compounds and nitrogen

oxide emissions from existing municipal waste combustors, submitted on

January 11, 1999. The Plan does not include: the site assignment

provisions of 310 CMR 7.08(2)(a); the definition of ``materials

separation plan'' at 310 CMR 7.08(2)(c); and the materials separation

plan provisions at 310 CMR 7.08(2)(f)(7).

(c) Designated facilities. The plan applies to existing sources in

the following categories of sources:

(1) Municipal waste combustors.

3. Part 62 is amended by adding a new Sec. 62.5425 and a new

undesignated center heading to Subpart W 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. 62.5425 Identification of sources.

(a) The plan applies to the following existing municipal waste

combustor facilities:

(1) Fall River Municipal Incinerator in Fall River.

(2) Ogden Martin-Haverhill MWC in Haverhill.

(3) SEMASS RRF in Rochester.

(4) Wheelabrator Millbury Inc. in Millbury.

(5) Saugus RESCO in Saugus.

(6) NESWC MWC in North Andover.

[FR Doc. 99-17768 Filed 7-13-99; 8:45 am]

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