Approvals and Promulgations of State Plans for Designated Facilities and Pollutants:

Federal Register: December 30, 2010 (Volume 75, Number 250)

Rules and Regulations

Page 82269-82272

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr30de10-10

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62

EPA-R04-OAR-2010-0392(a); FRL-9246-6

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants; State of Florida; Control of Large Municipal

Waste Combustor (LMWC) Emissions From Existing Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; notice of administrative change.

SUMMARY: EPA is approving the Clean Air Act (CAA) section 111(d)/129

State Plan (the Plan) submitted by the Florida Department of

Environmental Protection (FDEP) for the State of Florida on July 12, 2007, for implementing and enforcing the Emissions Guidelines (EGs) applicable to existing Large Municipal Waste Combustors (LMWCs). These

EGs apply to municipal waste combustors with a capacity to combust more than 250 tons per day of municipal solid waste (MSW).

DATES: This direct final rule is effective February 28, 2011 without further notice, unless EPA receives adverse comment by January 31, 2011. 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: Submit your comments, identified by Docket ID Number EPA-

R04-OAR-2010-0392 by one of the following methods: 1. http://www.regulations.gov: Follow the on-line instructions for submitting comments. 2. E-mail: garver.daniel@epa.gov. 3. Fax: (404) 562-9095. 4. Mail: EPA-R04 OAR-2010-0392, Daniel Garver, U.S. Environmental

Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303. 5. Hand Delivery or Courier: Mr. Daniel Garver, Air Toxics

Assessment and Implementation Section, Air Toxics and Monitoring

Branch, Air, Pesticides and Toxics Management Division, U.S.

Environmental Protection Agency, Region 4, 61 Forsyth Street, SW,

Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 am to 4:30 pm, excluding federal holidays.

Instructions: Direct your comments to Docket ID Number EPA-R04-OAR- 2010-0392. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be

Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http:// www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/ epahome/dockets.htm.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on

Page 82270

the Internet and will be publicly available only in hard copy form.

Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Toxics

Assessment and Implementation Section, Air Toxics and Monitoring

Branch, Air, Pesticides and Toxics Management Division, U.S.

Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,

Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 am to 4:30 pm, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Garver, Air Toxics Assessment and Implementation Section, Air Toxics and Monitoring Branch, Air,

Pesticides and Toxics Management Division, U.S. Environmental

Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9839. Mr. Garver can also be reached via electronic mail at garver.daniel@epa.gov.

SUPPLEMENTARY INFORMATION:

1. Background

2. Review of Florida's Municipal Waste Combustor (MWC) Plan

   Revision

3. Final Action

4. Statutory and Executive Order Reviews

1. Background

   Section 129(a)(5) of the CAA requires EPA to conduct a 5-year review of the solid waste incinerator new source performance standards

   (NSPS) and emission guidelines (EGs) and revise both, as appropriate.

   Accordingly, in the May 10, 2006, edition of the Federal Register, EPA promulgated revised LMWC rules under sections 111 and 129 of the CAA.

   Section 129(b)(2) of the CAA requires states to submit to EPA for approval state plans and revisions that implement and enforce the amended EGs, in this case, 40 CFR part 60, subpart Cb. State plans and revisions must be at least as protective as the EGs, and become federally enforceable as a section 111(d)/129 plan revision upon approval by EPA. The procedures for adoption and submittal of state plans and revisions are codified in 40 CFR part 60, subpart B.

2. Review of Florida's MWC Plan Revision

   The required Florida 111(d)/129 Plan revision was submitted by FDEP to EPA on July 12, 2007. EPA has reviewed the plan revision for existing LMWC units in the context of the requirements of 40 CFR part 60, and subparts B and Cb, as amended. State plans must include the following nine essential elements: (1) Identification of legal authority, (2) identification of mechanism for implementation, (3) inventory of affected facilities, (4) emissions inventory, (5) emissions limits, (6) compliance schedules, (7) testing, monitoring, recordkeeping, and reporting, (8) public hearing records, and (9) annual state progress reports on facility compliance.

   1. Identification of Legal Authority

      Federal regulations found at 40 CFR 60.26 require the plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules. FDEP has demonstrated that it has the legal authority to adopt and implement the emission standards and compliance governing MWC emissions. FDEP's legal authority is derived from state law found at Florida Statutes (F.S.)

      Sec. 403.031 (Definitions), F.S. Sec. 403.061 (Department powers and duties), F.S. Sec. 403.0872 (Title V air operating permits), and F.S.

      Sec. 403.8055 (Authority to adopt federal standards by reference). F.S.

      Subsections 403.061(6), (7), (8), and (13) give the authority for obtaining information and for requiring recordkeeping, and use of monitors. F.S. Subsection 403.061(35) gives the department authority to exercise the duties, powers, and responsibilities required of the State under the CAA. The sections of the Florida Statutes that give authority for compliance and enforcement authority are 403.121 (Judicial and administrative remedies), F.S. Sec. 403.131 (Injunctive relief), F.S.

      Sec. 403.141 (Civil remedies), and 403.161 (Civil and criminal penalties) Finally, F.S. Sec. 119.07 is the authority for making the information available to the public. Furthermore, FDEP has submitted and EPA has approved a previous Florida 111(d)/129 Plan for LMWCs that demonstrate the required legal authority (40 CFR 62.2355). Therefore, the Plan meets the requirements of 40 CFR 60.26.

   2. Identification of Enforceable State Mechanisms for Implementing the

      Plan

      The subpart B provision at 40 CFR 60.24(a) requires that state plans include emissions standards, defined 40 CFR 60.21(f) as ``a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.'' Florida Administrative Code

      (F.A.C.) Chapter 62-204.800, ``Federal Regulations Adopted by

      Reference'' has been amended to incorporate revisions to subpart Cb.

      These amendments to F.A.C. Rule 62-204.800(8) and (9), for Standards of

      Performance for New Stationary Sources and Emission Guidelines and

      Compliance Times, respectively, were proposed on April 6, 2007, and became effective on May 31, 2007. These rules meet the requirement of 40 CFR 60.24(a) to have a legally enforceable emission standard.

   3. Inventory of Affected MWC Units

      Federal regulations found at 40 CFR 60.25(a) require the plan to include a complete source inventory of all LMWC units. FDEP has identified ten (10) affected facilities. An affected facility is not exempt from applicable sections 111(d)/129 requirements because it is not listed in the inventory compiled by FDEP. The affected facilities identified by FDEP are shown in the table below:

      Facility name

      City

      Lake County Resource Recovery........ Okahumpka.

      Pasco County Solid Waste............. Hudson.

      Hillsborough County Resource Recovery Tampa.

      McKay Bay Refuse-to-Energy........... Tampa.

      Pinellas Resource Recovery........... St. Petersburg.

      Lee County Resource Recovery......... Fort Myers.

      Palm Beach Solid Waste Authority..... West Palm Beach.

      North Broward County Resource

      Pompano Beach.

      Recovery.

      South Broward County Resource

      Fort Lauderdale.

      Recovery.

      Dade County Resource Recovery........ Miami.

      Page 82271

   4. Inventory of Emissions From Affected MWC Units

      Federal regulations found at 40 CFR 60.25(a) require that the plan include an emissions inventory that estimates emissions of the pollutant regulated by the EGs. Emissions from MWC units contain organics (dioxin/furans), metals (cadmium, lead, mercury, particulate matter, opacity), and acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides). FDEP submitted a supplement to its 111(d)/129

      Plan to EPA on September 30, 2009. This supplement contains MWC unit emissions rates for each regulated pollutant for each designated facility based on the most recent stack test data. This meets the emission inventory requirements of 40 CFR 60.25(a).

   5. Emissions Limitations for MWC Units

      Federal regulations found at 40 CFR 60.24(c) specify that the state plan or revision must include emission standards that are no less stringent than the EGs, except as specified in 40 CFR 60.24(f), which allows for less stringent emission limitations on a case-by-case basis if certain conditions are met. This exception clause is superseded by section 129(b)(2) of the CAA, which requires that state plans be ``at least as protective'' as the EGs. Since F.A.C. Rule 62-204.800(9) b.3.a. through i., specifically adopts by reference the EGs contained in 40 CFR part 60 subpart Cb, the emission standards are ``at least as protective'' as those in subpart Cb, as amended.

   6. Compliance Schedules

      Federal regulations found at 40 CFR 60.24(c) and (e), require that a state plan must include an expeditious compliance schedule that owners and operators of affected MWC units must meet in order to comply with the requirements of the plan. F.A.C. Rule 62-204.800(9) b.3.a. through i., specifically adopts by reference the compliance schedules listed in 40 CFR 60.33b. The Plan revision meets applicable Federal requirements for compliance schedules.

   7. Testing, Monitoring, Recordkeeping, and Reporting Requirements

      The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), stipulate facility testing, monitoring, recordkeeping and reporting requirements for state plans. F.A.C. Rule 62-204.800(9)b.7., and 8., adopts by reference the monitoring, recordkeeping, and reporting requirements found at 40 CFR 60.58b and 60.59b, respectively. The Plan revision meets applicable Federal requirements for testing, monitoring, recordkeeping, and reporting requirements.

   8. A Record of Public Hearing on the State Plan Revision

      A public hearing on the plan revision was held on April 27, 2007.

      Applicable portions of F.A.C. Chapter 62-204.800, amendments became effective on May 31, 2007. FDEP provided evidence of complying with public notice and other hearing requirements, including a record of public comments received. FDEP also certified that ``the public notice and hearing requirements of all applicable state and federal regulations have been satisfied with respect to this submittal.'' FDEP has met the requirement of 40 CFR 60.23 for a public hearing.

1. Annual State Progress Reports to EPA

   FDEP must submit to EPA on an annual basis a report which details the progress in the enforcement of the plan in accordance with 40 CFR 60.25(e) and (f). Accordingly, FDEP will submit annual reports on progress in plan enforcement to EPA on an annual (calendar) basis, commencing with the first full report period after plan revision approval.

3. Final Action

   Based upon the rationale discussed above, EPA is approving the

   Florida Plan revision and related F.A.C. Rule 62-204.800(9) amendments, as adopted on May 31, 2007. This approval excludes certain authorities retained by EPA, and as stated in 40 CFR 60.30b(b) and 60.50b(n). As required by 40 CFR 60.28(c), any revisions to the Florida Plan or supporting regulations will not be considered part of the applicable plan until submitted by FDEP in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B, requirements.

   EPA is publishing this rule without prior proposal because the

   Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects already existing Federal requirement for state air pollution control agencies and existing LMWC units that are subject to the provisions of 40 CFR part 60, subpart Cb and related subpart Eb. 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 section 111(d)/ 129 Plan revision should relevant adverse or critical comments be filed. This rule will be effective January 31, 2011 without further notice unless EPA receives adverse comments by January 31, 2011. If EPA receives adverse comments, EPA will publish a timely withdrawal in the

   Federal Register informing the public that the rule did 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. If no such comments are received, the public is advised that this rule will be effective on February 28, 2011 and no further action will be taken on the proposed rule.

4. Statutory and Executive Order Reviews

   Under the CAA, the Administrator is required to approve a 111(d)/ 129 plan submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).

   Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA.

   Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

   Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

   Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

   Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory

   Flexibility Act (5 U.S.C. 601 et seq.);

   Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded

   Mandates Reform Act of 1995 (Pub. L. 104-4);

   Does not have Federalism implications as specified in

   Executive Order 13132 (64 FR 43255, August 10, 1999);

   Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

   Is not a significant regulatory action subject to

   Executive Order 13211 (66 FR 28355, May 22, 2001);

   Is not subject to requirements of Section 12(d) of the

   National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because

   Page 82272

   application of those requirements would be inconsistent with the CAA; and

   Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under

   Executive Order 12898 (59 FR 7629, February 16, 1994).

   In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 111(d)/129 Plan is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

   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 action 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. 804(2).

   Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 28, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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, Reporting and recordkeeping requirements.

   Dated: November 8, 2010.

   1. Stanley Meiburg,

   Acting Regional Administrator, Region 4. 0 40 CFR part 62, subpart K, is amended as follows:

   PART 62--[AMENDED] 0 1. The authority citation for part 62 continues to read as follows:

   Authority: 42 U.S.C. 7401 et seq.

   Subpart K--Florida 0 2. Section 62.2355 is revised to read as follows:

   Sec. 62.2355 Identification of sources.

   (a) 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), and for which construction, reconstruction, or modification was commenced on or before July 12, 2007.

   (b) On July 12, 2007, Florida submitted a revised State plan and related Florida Administrative Code amendments as required by 40 CFR part 60, subpart Cb, amended on May 10, 2006.

   (c) The plan is effective as of May 31, 2007.

   FR Doc. 2010-32971 Filed 12-29-10; 8:45 am

   BILLING CODE 6560-50-P