[Federal Register: March 13, 2003 (Volume 68, Number 49)]
[Rules and Regulations]
[Page 11978-11981]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr03-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[Region II Docket No. NY58-253a, FRL-7464-8]
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 taking direct
final action to approve the State plan submitted by New York State to
implement and enforce the Emission Guidelines (EG) for existing small
Municipal Waste Combustion (MWC) Units. New York's plan establishes
emission limits and other requirements for the purpose of reducing
toxic air emissions from small MWC units throughout the State. New York
submitted its plan to fulfill the requirements of sections 111(d) and
129 of the Clean Air Act.
DATES: This direct final rule is effective on May 12, 2003 without
further notice, unless EPA receives adverse comment by April 14, 2003.
If EPA receives such comment, EPA will publish a timely withdrawal
in the Federal Register informing the public that this rule will not
take effect.
ADDRESSES: All comments should be addressed to: Raymond Werner, Chief,
Air Programs Branch, Environmental Protection Agency, Region II Office,
290 Broadway, New York, New York 10007-1866.
Copies of the state submittal is available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region II 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, 625 Broadway, 2nd Floor, Albany, New York 12233.
FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New
York, New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION: The following table of contents describes
the format for the SUPPLEMENTARY INFORMATION section:
I. EPA Action
A. What action is EPA taking today?
B. Why is EPA taking this action?
C. Who is affected by New York's State plan?
D. How does this approval affect sources located in Indian
Nation Land?
E. How does this approval relate to the Federal plan?
II. Background
A. What is a State plan?
B. What is a small MWC State plan?
C. Why is EPA requiring New York to submit a small MWC State
plan?
D. What are the requirements for a small MWC State plan?
III. New York's State Plan
A. What is contained in the New York State plan?
B. What approval criteria did we use to evaluate New York's
State plan?
IV. EPA's Rulemaking Action
V. Statutory and Executive Order Reviews
I. EPA Action
A. What Action Is EPA Taking Today?
EPA is approving New York's State plan, submitted on October 22,
2002, for the control of air emissions from existing small Municipal
Waste Combustion (MWC) units throughout the State, except for those
small MWCs located on Indian Nation land. New York submitted its plan
to fulfill the requirements of section 111(d) and 129 of the Clean Air
Act (CAA). The State plan adopts and implements the Emission Guidelines
(EG) applicable to existing small MWCs, and establishes emission limits
and other requirements for units constructed on or before August 30,
1999. This approval, once effective, will make the New York small MWC
rules included in the State plan federally enforceable.
B. Why Is EPA Taking This Action?
EPA has evaluated New York's small MWC State plan for consistency
with the CAA, EPA guidelines and policy. EPA has determined that New
York's State plan meets all requirements and therefore, EPA is
approving New York's State plan to implement and enforce the EG
applicable to existing small MWCs.
C. Who Is Affected by New York's State Plan?
New York's State plan regulates all the units designated by the EG
for existing small MWCs which commenced construction on or before
August 30, 1999 and which have the capacity to combust at least 35 tons
per day of municipal solid waste or refuse-derived fuel but no more
than 250 tons per day of municipal solid waste or refuse-derived fuel.
If the owner or operator of a small MWC made changes after June 6,
2001, that meet the definition of modification or reconstruction for
subpart AAAA (New Source Performance Standards for New Small Municipal
Waste Combustion Units) of 40 CFR part 60, the small MWC unit becomes
subject to subpart AAAA and the State plan no longer applies to that
unit.
D. How Does This Approval Affect Sources Located in Indian Nation Land?
New York's State plan does not cover units located in Indian Nation
Land. Therefore, any units located in Indian Nation Land will be
subject to the Federal plan, subpart JJJ of 40 CFR part 62, promulgated
on January 31, 2003 (see 68 FR 5144).
E. How Does This Approval Relate to the Federal Plan?
The Federal plan is applicable to small MWC units located in Indian
Nation Land and units throughout New York for which there is no
approved State plan. Therefore, until this approval action becomes
effective, small MWC units within New York State's jurisdiction are
subject to the Federal plan. Upon approval of New York's
[[Page 11979]]
State plan, small MWC units within the State of New York's jurisdiction
will be subject to New York's State plan as of the effective date of
this action and the Federal plan will no longer apply.
II. Background
A. What Is a State Plan?
Section 111 of the CAA, ``Standards of Performance for New
Stationary Sources,'' authorizes EPA to set air emissions standards for
certain categories of sources. These standards are called New Source
Performance Standards (NSPS). When a NSPS is promulgated for new
sources, section 111(d) also requires that EPA publish an EG applicable
to the control of the same pollutant from existing (or designated)
facilities. States with designated facilities must then develop a State
plan to adopt the EG into the State's body of regulations. States must
also include in their State plan other requirements, such as
inventories, legal authority, and public participation documentation,
to demonstrate their ability to enforce the State plans.
B. What Is a Small MWC State Plan?
A small MWC State plan is a State plan, as described above, that
controls air pollutant emissions from existing small incinerators with
a combustion design capacity of 35 to 250 tons per day of municipal
solid waste or refuse derived fuel that commenced construction on or
before August 30, 1999.
C. Why Is EPA Requiring New York To Submit a Small MWC State Plan?
When EPA developed the NSPS for small MWCs, we simultaneously
developed the EG to control air emissions from existing small MWCs (see
62 FR 76378, December 6, 2000). Under section 129 of the CAA, the EG is
not federally enforceable; therefore, section 129 of the CAA also
requires states to submit to EPA for approval State plans that
implement and enforce the EG. These State plans must be at least as
protective as the EG, and they become federally enforceable upon
approval by EPA.
The procedures for adopting and submitting State plans are located
in 40 CFR part 60, subpart B. If a state fails to have an approvable
plan in place by December 6, 2001, the EPA is required to promulgate a
Federal plan to establish requirements for those sources not under an
EPA-approved State plan. Even though EPA promulgated the Federal plan
on January 31, 2003, New York's State plan is approvable since it was
deemed at least as protective as the standards set in the EG. New York
has developed and submitted a State plan, as required by section 111(d)
of the CAA, to gain Federal approval to implement and enforce the small
MWC EG.
D. What Are the Requirements for a Small MWC State Plan?
A section 111(d) State plan submittal must meet the requirements of
40 CFR part 60, subpart B, Sec. Sec. 60.23 through 60.26, and 40 CFR
part 60, subpart BBBB (see 62 FR 76378, December 6, 2000). Subpart B
contains the procedures for the adoption and submittal of State plans.
This subpart addresses public participation, legal authority, emission
standards and other emission limitations, compliance schedules,
emission inventories, source surveillance, and compliance assurance and
enforcement requirements.
EPA promulgated the EG as 40 CFR part 60, subpart BBBB on December
6, 2000. Subpart BBBB contains the technical requirements for existing
small MWCs and applies to units that commenced construction on or
before August 30, 1999. A state will generally address the small MWC
technical requirements by adopting by reference subpart BBBB. The
section 111(d) state plan is required to be submitted within one year
of the EG promulgation date, i.e. by December 6, 2001. Prior to
submittal to EPA, the State must make available to the public the State
plan and provide opportunity for public comment.
III. New York's State Plan
A. What Is Contained in the New York State Plan?
On October 22, 2002, the New York State Department of Environmental
Conservation (NYSDEC) submitted its section 111(d) State plan for
implementing EPA's EG for existing small MWC units located in New York
State.
New York has adopted by reference the requirements of the EG in
Part 200 of Title 6 of the New York Code of Rules and Regulations
(6NYCRR) of the State of New York, entitled ``General Provisions'' and
in Subpart 219-1 of 6NYCRR entitled ``Incineration-General Provisions''
and Subpart 219-8 of 6NYCRR entitled ``Emission Guidelines and
Compliance Times for Small Municipal Waste Combustion Units Constructed
on or before August 30, 1999.'' These amended regulations became
effective on October 18, 2002. By incorporating the EG by reference
into Part 200, NYSDEC has the authority to include them as applicable
within Subpart 219-8, which addresses the applicability of the various
Part 219 (New York's incineration rules) requirements. Part 219 now
includes the new requirements incorporated from the EG, as well as the
necessary compliance schedules and necessary definition changes
required for the transformation of emission guidelines into a State
plan. As a result, the Part 219 requirements are enforceable by New
York and become federally enforceable once the State plan is approved
by EPA.
New York's State plan contains the following:
(1) A demonstration of the State's legal authority to implement the
section 111(d) State plan;
(2) State rules adopted into 6NYCRR Parts 200 and 219 as the
mechanism for implementing and enforcing the State plan;
(3) An inventory of three known small MWC facilities, including
eight small MWC units, along with an inventory of their air pollutant
emissions;
(4) Emission limits that are as protective as the EG;
(5) Enforceable compliance schedules incorporated into Part 219,
New York's incineration rule. For Class I Units, compliance dates vary
from three years from the effective date of EPA's approval of New
York's State plan to not later than December 6, 2005, whichever is
earlier. For Class II Units, compliance dates vary from one year from
the effective date of EPA's approval of New York's State plan to not
later than December 6, 2005, whichever is earlier.
(6) Testing, monitoring, reporting and recordkeeping requirements
for the designated facilities;
(7) Records of the public hearing on the State plan; and,
(8) Provisions for annual state progress reports to EPA on
implementation of the State plan.
B. What Approval Criteria Did We Use To Evaluate New York's State Plan?
EPA reviewed New York's State plan for approval against the
following criteria: 40 CFR 60.23 through 60.26 , ``Subpart B--Adoption
and Submittal of State Plans for Designated Facilities;'' and 40 CFR
60.1600 through 60.1940, ``Subpart BBBB--Emission Guidelines and
Compliance Times for Small Municipal Waste Combustion Units Constructed
on or Before August 30, 1999.''
IV. EPA's Rulemaking Action
The EPA has determined that New York's State plan meets all the
applicable approval criteria and, therefore, EPA is approving, through
direct final rulemaking action, New
[[Page 11980]]
York State's sections 111(d) and 129 State plan for small MWCs.
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 May 12, 2003
without further notice unless the Agency receives adverse comments by
April 14, 2003.
If the EPA receives adverse comments, then EPA will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
V. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
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 rule will not have a significant impact on a substantial
number of small entities. Therefore, because the Federal 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.
Unfunded Mandates Reform Act
Under sections 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 by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either state, commonwealth, 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,
commonwealth, local, or tribal governments, or to the private sector,
result from this action.
Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6(b) of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. Under section 6(c) of Executive
Order 13132, EPA may not issue a regulation that has federalism
implications and that preempts state law, unless the Agency consults
with state and local officials early in the process of developing the
proposed regulation.
New York's State plan applies to all affected sources regardless of
whether it has been identified in its plan. Therefore, EPA has
concluded that this rulemaking action does not have federalism
implications. It will not impose substantial direct compliance costs on
state or local governments, nor will it preempt state law. Thus, the
requirements of sections 6(b) and 6(c) of the Executive Order do not
apply to this rule.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
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
Executive Order 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 Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
[[Page 11981]]
National Technology Transfer Advancement Act
Section 12 of the National Technology Transfer Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 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. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective May 12, 2003 unless EPA
receives material adverse written comments by April 14, 2003.
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 May 12, 2003. 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, Lead, Reporting and recordkeeping requirements.
Dated: March 3, 2003.
Jane M. Kenny,
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 new Sec. 62.8107 and an
undesignated heading to subpart HH to read as follows:
Air Emissions From Existing Small Municipal Waste Combustion Units
With The Capacity To Combust At Least 35 Tons Per Day But No More Than
250 Tons Per Day Of Municipal Solid Waste Or Refuse Derived Fuel and
Constructed on or Before August 30, 1999.
Sec. 62.8107 Identification of plan.
(a) On October 22, 2002, the New York State Department of
Environmental Conservation submitted to the Environmental Protection
Agency ``Section 111(d)/129 State Plan for Implementation of Municipal
Waste Combustor Emission Guidelines [Title 40 CFR Part 60, Subparts B
and BBBB]''
(b) Identification of sources: The plan applies to all existing
Small Municipal Waste Combustion Units with the capacity to combust at
least 35 tons per day but no more than 250 tons per day of municipal
solid waste or refuse derived fuel and constructed on or before August
30, 1999.
(c) The effective date for the portion of the plan applicable to
existing municipal waste combustor units is May 12, 2003.
[FR Doc. 03-5908 Filed 3-12-03; 8:45 am]
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