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Approval and Promulgation of Air Quality Implementation Plans for Designated Facilities and Pollutants; Pennsylvania; Conversion of the Conditional Approval of the Pennsylvania Large Municipal Waste Combustor (MWC) Plan to Full Approval

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to convert its conditional approval of the Commonwealth of Pennsylvania's large municipal waste combustor (MWC) plan submitted by the Pennsylvania Department of Environmental Protection (PADEP) to a full approval. EPA is converting its conditional approval to a full approval because the PADEP submitted a revision to the plan which satisfies the condition imposed by EPA in its conditional approval. That condition required the Commonwealth to submit an expeditious compliance schedule for the supplemental emissions guideline (EG) limits promulgated on August 25, 1997. This action converting EPA's conditional approval of the Pennsylvania plan to a full approval is being taken under the Clean Air Act (CAA).

DATES:

This rule is effective on October 4, 2001 without further notice, unless EPA receives adverse written comment by September 19, 2001. If EPA receives such comments, it 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:

Written comments should be mailed to David L. Arnold, Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and Pennsylvania Department of Environmental Protection, Bureau of Air Quality, Rachel Carson State Office Building, 400 Market Street, Harrisburg, Pennsylvania 17105-8465.

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FOR FURTHER INFORMATION CONTACT:

James B. Topsale (215) 814-2190 at the EPA Region III address above, or by e-mail at topsale.jim@epa.gov. Please note that while questions may be posed via telephone and e-mail, formal comments must be submitted, in writing, as indicated in the ADDRESSES section of this document.

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SUPPLEMENTARY INFORMATION:

I. Background

Section 111(d) of the CAA requires that “designated” pollutants controlled under standards of performance for new stationary sources by section 111(b) of the CAA must also be controlled at existing sources in the same source category. Also, section 129 of the CAA specifically addresses solid waste combustion. It requires EPA to establish emission guidelines (EG) for MWC units and requires states to develop state plans for implementing the promulgated EG.

The part 60, subpart Cb, EG for MWC units differ from other EG adopted in the past because the rule addresses both sections 111(d) and 129 CAA requirements. Section 129 requirements override certain related aspects of section 111(d).

On December 19, 1995, pursuant to sections 111 and 129 of the CAA, EPA promulgated new source performance standards (NSPS) applicable to new MWCs i.e., those for which construction was commenced after September 20, 1994) 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 and 65415. Subparts Eb and Cb regulate MWC emissions. Emissions from MWCs contain organics (dioxins/furans), metals (cadmium, lead, mercury), acid gases, (hydrogen chloride, sulfur dioxide, and nitrogen oxides), and particulate matter, including opacity.

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 the capacity to combust 250 tons per day (TPD) or less than of municipal solid waste (MSW), 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 were amended to apply only to MWC Start Printed Page 43510units with the capacity to combust more than 250 TPD of MSW per unit (i.e., large MWC units). Also, the amended EG made minor revisions to the emissions limitations for four pollutants—hydrogen chloride, sulfur dioxide, nitrogen oxides, and lead. The amended requirements of the NSPS and EG were published in the Federal Register on August 25, 1997. See 62 FR 45119 and 45124 for the EG amendments.

As a result of the Davis County litigation, noted above, compliance with supplemental EG emissions limits for hydrogen chloride, sulfur dioxide, nitrogen oxides, and lead could extend until August 26, 2002, or 3 years after EPA approval of the 111(d)/129 plan, whichever is earlier. However, section 129(f)(2) of the CAA states that requirements promulgated pursuant to sections 111 and 129 must be effective “as expeditiously as practicable after approval of a State plan.” As required by section 129(b)(3) of the CAA, on November 12, 1998 EPA promulgated a Federal Implementation Plan (FIP) for large MWCs that commenced construction on or before September 20, 1994. The FIP is a set of emissions limits, compliance schedules, and other requirements that implement the EG for MWC, as amended. The FIP is applicable to those large existing MWCs not specifically covered by an approved State plan under sections 111(d) and 129 of the CAA. Also, it fills a Federal enforceability gap until State plans are approved and ensures that the MWC units stay on track to complete, in an expeditious manner, required pollution control equipment retrofits on or before the final statutory compliance date of December 19, 2000.

On August 23, 1999 (64 FR 45880), EPA promulgated a conditional approval of Pennsylvania's large MWC 111(d)/129 plan. The conditionally approved Pennsylvania plan requires compliance with the original 1995 EG emissions limits by a date no later than December 19, 2000, and compliance with the 1997 EG supplemental emissions limits by a date no later than August 26, 2002, or 3 years after EPA approval of the 111(d)/129 plan, whichever is earlier. After considering the requirements of section 129(f)(2) and the FIP, including the related background information document (#0106-00-002-002, August 20, 1998), EPA determined that the final compliance dates for the supplemental emissions limits, as stipulated in the Pennsylvania 111(d)/129 plan's Federally enforceable state operating permits (FESOPs) and source-specific plan approval (i.e., construction permit), were not expeditious. The conditionally approved Pennsylvania plan contains no economic, technical, or other rationale to justify a compliance date extension until August 26, 2002 for the supplemental emissions limits. Accordingly, EPA considered the plan's interim and final compliance schedules approvable for the original 1995 EG emissions limits, but not the final compliance schedule (August 26, 2002, or 3 years after EPA approval of the state plan, whichever is earlier) for the 1997 supplemental emissions limits. See 62 FR 45116.

As previously stated, EPA promulgated a conditional approval of Pennsylvania's large MWC 111(d)/129 plan on August 23, 1999 (64 FR 45880). To fulfill the condition imposed by EPA, PADEP was required to amend the affected facility operating permits, as necessary, and include a final compliance date, no later than December 19, 2000, for the supplemental limits; and then submit the amended permits, as a 111(d)/129 plan revision, to EPA by August 22, 2000.

II. Summary of Pennsylvania's MWC 111d/129 Plan Revision and EPA's Evaluation

On July 7, 2000, PADEP formally submitted the required compliance schedule revisions through the use of amended operating permits. EPA has determined that PADEP has satisfied the condition imposed in the August 23, 1999 conditional approval. In addition, on August 15, 2000, the PADEP provided supplemental information that clarifies certain Lancaster County Solid Waste Management Authority operational requirements for its resource recovery facility's dry lime injection system and the determination of sulfur dioxide and hydrogen chloride percent emission reductions in the combustor units.

III. Final Action

EPA is approving the revision to the Commonwealth's MWC 111d/129 plan submitted by PADEP on July 7, 2000 which requires compliance with the supplemental emissions limits by a date no later than December 19, 2000. As a result of this approval, the conditional nature of EPA's August 23, 1999 approval of the Pennsylvania large MWC 111(d)/129 plan is, hereby, removed and converted to a full approval. Also, EPA accepts the PADEP explanation regarding the operational requirements, noted above, for the Lancaster County Solid Waste Management Authority MWC facility. This action is being published without prior proposal because we view this as a noncontroversial amendment and because we anticipate no adverse comments. In a separate document in the “Proposed Rules” section of this Federal Register publication, we are proposing to approve the plan revision. This action will be effective without further notice unless we receive relevant adverse comment by September 19, 2001. If we receive such comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. Any parties interested in commenting must do so at this time. EPA will not institute a second comment period. If no such comments are received by September 19, 2001, you are advised that this action will be effective on October 4, 2001.

IV. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, (May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and Start Printed Page 43511responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 submission, to use VCS in place of a 111(d)/129 plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.

B. 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).

C. 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 October 19, 2001. Filing a petition for reconsideration by the Administrator of this final rule converting EPA's conditional approval of the Commonwealth of Pennsylvania's MWC 111(d)/129 plan 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).)

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List of Subjects in 40 CFR Part 62

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Dated: August 10, 2001.

Judith Katz,

Acting Regional Administrator, Region III.

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PART 62—[AMENDED]

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1. The authority citation for part 62 continues to read as follows:

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Authority: 42 U.S.C. 7401-7671q.

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Subpart NN—Pennsylvania

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2. Section 62.9640 is revised to read as follows:

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Identification of plan.

The 111(d)/129 plan for municipal waste combustors (MWC) units with a capacity greater than 250 tons per day (TPD) and the associated Pennsylvania Department of Environmental Protection operating permits that were submitted to EPA on April 27, 1998, and as amended on September 8, 1998, and July 7, 2000, including supplemental information dated August 15, 2000. All affected facilities must achieve full compliance with all 111(d)/129 plan requirements on or before December 19, 2000.

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3. Section 62.9642 is revised to read as follows:

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Effective dates.

(a) The effective date of the submitted 1998 111(d)/129 plan is October 22, 1999.

(b) The effective date of the submitted 2000 111(d)/129 plan revision is October 4, 2001.

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[FR Doc. 01-20892 Filed 8-17-01; 8:45 am]

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