[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 [www.gpo.gov]
[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 http://www.regulations.gov 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 www.regulations.gov, 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 Taveras.Fausto@epa.gov.

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 http://www.regulations.gov 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 
www.regulations.gov, 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:
     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);
     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, Aug. 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 application of those requirements would be inconsistent 
with the CAA; and

[[Page 49484]]

     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 
fr.inspection@nara.gov or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.
    (2) State of New York, Department of State, Albany, New York 12231; 
https://dos.ny.gov/state-register.
    (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


