Rule2021-19005
Approval and Promulgation of State Plans for Designated Facilities; New York
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 3, 2021
Effective
October 4, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving the state plan submitted by New York State to implement and enforce Emission Guidelines (EG) for existing large municipal waste combustor (MWC) units. The state plan is consistent with the amended EG promulgated by the EPA on May 10, 2006. New York's plan establishes emission limits and other requirements for the purpose of reducing emissions of lead, mercury, cadmium, organics, hydrogen chloride, and other air pollutants from large MWC units throughout the state. New York submitted its plan to fulfill the requirements of certain sections of the Clean Air Act.
Full Text
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<title>Federal Register, Volume 86 Issue 169 (Friday, September 3, 2021)</title>
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[Federal Register Volume 86, Number 169 (Friday, September 3, 2021)]
[Rules and Regulations]
[Pages 49482-49484]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19005]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[EPA-R02-OAR-2018-0564, FRL 8921-02-Region 2]
Approval and Promulgation of State Plans for Designated
Facilities; New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
state plan submitted by New York State to implement and enforce
Emission Guidelines (EG) for existing large municipal waste combustor
(MWC) units. The state plan is consistent with the amended EG
promulgated by the EPA on May 10, 2006. New York's plan establishes
emission limits and other requirements for the purpose of reducing
emissions of lead, mercury, cadmium, organics, hydrogen chloride, and
other air pollutants from large MWC units throughout the state. New
York submitted its plan to fulfill the requirements of certain sections
of the Clean Air Act.
DATES: This rule is effective on October 4, 2021. The incorporation by
reference of certain materials listed in the rule is approved by the
Director of the Federal Register as of October 4, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R02-OAR-2018-0564. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through <a href="http://www.regulations.gov">www.regulations.gov</a>, or please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section for
additional available information.
FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Air Programs Branch,
290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-
3378, or by email at <a href="/cdn-cgi/l/email-protection#41152037243320326f07203432352e012431206f262e37"><span class="__cf_email__" data-cfemail="12467364776073613c54736761667d527762733c757d64">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The following table of contents describes
the format for the SUPPLEMENTARY INFORMATION section:
I. What action is the EPA taking?
II. What are the details of the EPA's action?
III. What comments were received in response to the EPA's proposed
action?
IV. What is the EPA's conclusion?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What action is the EPA taking?
The EPA is approving New York's revised state plan, submitted on
July 12, 2013, for the control of air emissions from existing large
municipal waste combustor (MWC) units throughout the state, except for
any existing large MWC units located in Indian Nation Land. In
accordance with the Clean Air Act (``CAA'' or the ``Act''), New York
previously submitted a state plan on December 15, 1997, as supplemented
on June 22, 1998, which was approved by the EPA on August 4, 1998. See
63 FR 41427. New York also submitted a revised state plan on October 7,
1998, as supplemented on November 5, 1998, which was approved by the
EPA on February 9, 1999. See 64 FR 6237. New York submitted its July
12, 2013 revised plan to fulfill the requirements of sections 111(d)
and 129 of the CAA. The revised state plan adopts and implements the
Emission Guidelines (EG) amended by the EPA on May 10, 2006 applicable
to existing large MWC units and establishes revised emission limits and
other requirements for units constructed on or before September 20,
1994. See 71 FR 27324 (May 10, 2006); 40 CFR 60.32b(a). New York's
revised state plan regulates all the existing units designated as large
MWCs by the amended EG with a combustion capacity greater than 250 tons
per day of municipal solid waste for which construction commenced on or
before September 20, 1994. This approval, once effective, will render
New York's revised large MWC rules included in the state plan federally
enforceable.
II. What are the details of the EPA's action?
On July 12, 2013,\1\ the New York State Department of Environmental
Conservation (NYSDEC) submitted to the EPA its sections 111(d) and 129
state plan to implement the EPA's amended EG for existing large MWC
units located in New York state. New York has incorporated by reference
the applicable requirements of the amended EG in Part 200 of Title 6 of
the New York Codes, Rules and Regulations (6 NYCRR), entitled,
``General Provisions.'' The amended regulation became effective on
October 20, 2007. New York will enforce the requirements under Part
201, entitled ``Permits and Registration.'' By incorporating the
requirements of the amended EG into Part 200, NYSDEC has the authority
to include them as applicable requirements in the permits of subject
emission sources. As a result, the Part 200 requirements are
enforceable by New York and become federally enforceable once the state
plan is approved by the EPA.
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\1\ In an email dated December 6, 2017, the New York State
Department of Environmental Conservation (NYSDEC) provided a copy of
the New York State Office of Attorney General opinion dated June 9,
1980, finding that New York state administrative agencies are
authorized to incorporate by reference federal statutes and
regulations that are applicable to the state, and that such action
is not prohibited by the New York State Constitution.
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New York's revised state plan includes all of the EPA's required
elements as described in the amended EG and 40 CFR subpart B, as
summarized herein:
(1) A demonstration of the state's legal authority to implement the
CAA sections 111(d) and 129 state plan;
[[Page 49483]]
(2) State rules adopting the amended EG (6 NYCRR Part 200) as the
mechanism for implementing and enforcing the state plan;
(3) An inventory of seven known large MWC facilities, including
eighteen large MWC units, along with an inventory of their air
pollutant emissions (see section C of New York's state plan);
(4) Emission limits, emission standards, operator training and
qualification requirements, and operating limits that are at least as
protective as the amended EG;
(5) Enforceable compliance schedules as indicated in the amended
EG. Compliance with revised emission limits (see 40 CFR 60.39b) was
required as expeditiously as practicable, but not later than April 28,
2009, except as noted in 40 CFR 60.39b(g)(2) for a facility that was
planning an extensive emission control system upgrade that petitioned
the Administrator for a longer compliance schedule. If approved by the
Administrator, the longer compliance schedule may have been extended no
later than May 10, 2011. If no plan for implementing the amended EG was
approved by the EPA, all MWC units that meet the applicability
standards set forth in 40 CFR 60.32b must have been in compliance with
all requirements of the amended EG no later than May 10, 2011 (see 40
CFR 60.39b(h)).
(6) Testing, monitoring, reporting, and recordkeeping requirements
for the designated facilities;
(7) Records of the public hearing on the revised state plan; and,
(8) Provisions for annual state progress reports to the EPA on
implementation of the revised state plan.
The EPA reviewed New York's revised 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,''
``Subpart Cb--Emissions Guidelines and Compliance Times for Large
Municipal Waste Combustors That are Constructed on or Before September
20, 1994,'' and 40 CFR part 62 subpart A, ``General Provisions'' for
``Approval and Promulgation of State Plans for Designated Facilities
and Pollutants.''
On September 10, 2018 (see 83 FR 45589), the EPA proposed to
determine that New York's revised state plan for large MWC units
includes all the required state plan elements described in the amended
EG and, therefore, the EPA proposed approval of New York's July 12,
2013 state plan submittal.
III. What comments were received in response to the EPA's proposed
action?
In response to the EPA's September 10, 2018 (see 83 FR 45589)
proposed rulemaking on New York's state plan submission for existing
large MWCs, the EPA received two comments during the 30-day public
comment period. The first public comment, posted on October 9, 2018,
supports the EPA's proposed rulemaking to approve New York's state
plan. Also, the EPA has determined that the second public comment,
posted on October 17, 2018, is outside the scope of our proposed action
and fails to identify any material issue necessitating a response. The
second public comment does not raise any issues germane to the EPA's
proposed action. For these reasons, the EPA will not provide a specific
response to the second public comment. The specific public comments may
be viewed under Docket ID Number EPA-R02-OAR-2018-0564 on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website.
IV. What is the EPA's conclusion?
The EPA has determined that New York's revised state plan meets all
the applicable approval criteria as discussed above and, therefore, the
EPA is approving New York state's CAA sections 111(d) and 129 revised
state plan for existing large municipal waste combustor units.
V. Incorporation by Reference
In accordance with the requirements of 1 CFR 51.5, the EPA is
finalizing regulatory text that includes the incorporation by reference
of Table 2 of subdivision 200.10(b) at Part 200 of Title 6 NYCRR
(effective October 20, 2007) which is part of the CAA section 129 plan
applicable to existing large MWCs in New York. The regulatory provision
at 6 NYCRR section 200.10(b), entitled, ``Delegated Federal New Source
Performance Standards of 40 CFR 60,'' incorporates by reference the
Emission Guidelines (EG) for existing large MWCs, promulgated by the
EPA at 40 CFR part 60 subpart Cb, and establishes emission standards
and compliance times for the control of lead, mercury, cadmium,
organics, hydrogen chloride, and other air pollutants from certain MWCs
that commenced construction on or before September 20, 1994. The EPA
has made, and will continue to make, Table 2 of subdivision 200.10(b)
at Part 200 of Title 6 NYCRR generally available electronically through
<a href="http://www.regulations.gov">www.regulations.gov</a>, Docket No. EPA-R02-OAR-2018-0564 and in hard copy
at the EPA Region 2 office (please contact the person identified in the
For Further Information Contact section of this preamble for more
information). Therefore, these materials have been approved by EPA for
inclusion in the state plan, have been incorporated by reference by EPA
into that plan, and are fully federally enforceable under the CAA as of
the effective date of the final rulemaking.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a CAA
section 111(d)/129 plan submission that complies with the provisions of
the Act and applicable federal regulations. See 42 U.S.C. 7411(d); 40
CFR part 60 subparts B and Cb; and 40 CFR part 62 subpart A; and 40 CFR
62.04. Thus, in reviewing CAA section 111(d)/129 plan submissions, the
EPA's role is to approve state choices, provided that they meet the
criteria of the Act and implementing regulations. Accordingly, this
action, as finalized, merely approves state law that meets federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action, as finalized:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, Oct. 4, 1993) and Executive Order 13563 (76 FR
3821, Jan. 21, 2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, Aug. 10, 1999);
<bullet> Is not an ``economically significant'' regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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 application of those requirements would be inconsistent
with the CAA; and
[[Page 49484]]
<bullet> Does not provide the 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, Feb. 16, 1994).
In addition, this final rule is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, Nov. 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., which was
included as part of 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 Congress and to the Comptroller
General of the United States. The 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, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the Second Circuit by November 2, 2021. 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. 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).)
List of Subjects in 40 CFR Part 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Reporting and recordkeeping requirements, Sulfur oxides,
Waste treatment and disposal.
Dated: August 26, 2021.
Walter Mugdan,
Acting Regional Administrator, Region 2.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 62 as set forth below:
PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS
0
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. Amend Sec. 62.8103, by adding paragraphs (d) through (g) to read as
follows:
Sec. 62.8103 Identification of plan.
* * * * *
(d) Identification of plan: On July 12, 2013, the New York State
Department of Environmental Conservation (NYSDEC) submitted to the
Environmental Protection Agency (EPA) a Clean Air Act section 111(d)/
129 revised plan, and the associated Table 2 of subdivision 200.10(b)
at Part 200 of Title 6 NYCRR, addressing 40 CFR part 60 subpart Cb,
``Emissions Guidelines and Compliance Times for Large Municipal Waste
Combustors That are Constructed on or Before September 20, 1994,'' as
amended on May 10, 2006. The plan includes the regulatory provisions
cited in paragraph (g) of this section, which the EPA incorporates by
reference.
(e) Identification of sources: The plan applies to all existing
facilities in New York with a municipal waste combustion capacity
greater than 250 tons per day of municipal solid waste for which
construction commenced on or before September 20, 1994, and which are
subject to 40 CFR part 60 subpart Cb.
(f) Effective date: The effective date of the plan for October 4,
2021.
(g) Incorporation by reference:
(1) The material incorporated by reference in this section was
approved by the Director of the Federal Register Office in accordance
with 5 U.S.C. 552(a)(1) and 1 CFR part 51. The material is available
from the sources identified elsewhere in this paragraph. It may be
inspected or obtained from the EPA Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866, 212-637-3378. It may be inspected
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
<a href="/cdn-cgi/l/email-protection#0167732f686f7271646275686e6f416f6073602f666e77"><span class="__cf_email__" data-cfemail="3157431f585f4241545245585e5f715f5043501f565e47">[email protected]</span></a> or go to: <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a>.
(2) State of New York, Department of State, Albany, New York 12231;
<a href="https://dos.ny.gov/state-register">https://dos.ny.gov/state-register</a>.
(i) 6 NYCRR sec. 200.10(b)-Cb: Official Compilation of (New York)
Codes, Rules and Regulations; Title 6--Environmental Conservation; Part
200--General Provisions; Section 200.10--Federal standards and
requirements; Paragraph (b)--Table 2--Delegated Federal New Source
Performance Standards of 40 CFR 60, entry Cb, Large Municipal Waste
Combustors That are Constructed on or Before September 20, 1994;
effective September 4, 2019 (original effective date: October 20, 2007)
(ii) [Reserved]
[FR Doc. 2021-19005 Filed 9-2-21; 8:45 am]
BILLING CODE 6560-50-P
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