[Federal Register Volume 66, Number 152 (Tuesday, August 7, 2001)]
[Rules and Regulations]
[Pages 41146-41148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19558]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region II Docket No. NY50-224a, FRL-7024-7]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
negative declaration submitted by the State of New York. The negative 
declaration satisfies EPA's promulgated Emission Guidelines (EG) for 
existing commercial and industrial solid waste incinerator (CISWI) 
sources. In accordance with the EG, states are not required to submit a 
plan to implement and enforce the EG if there are no existing CISWI 
sources in the state and if it submits a negative declaration letter in 
place of the State Plan.

DATES: This direct final rule is effective on October 9, 2001 without 
further notice, unless EPA receives adverse comment by September 6, 
2001.
    If an adverse comment is received, 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, Albany, New York 12233-3251
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, SW., Washington, 
DC 20460


FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the SUPPLEMENTARY INFORMATION section:

Table of Contents

A. What action is EPA taking today?
B. Why is EPA approving New York's negative declaration?
C. What if an existing CISWI source is discovered after today's 
action becomes effective?
D. What is the background for Emission guideline and State Plans?
E. Where can you find the EG requirements for CISWI sources?
F. Who must comply with the requirements?
G. What are EPA's conclusions?
H. Administrative Requirements

A. What Action Is EPA Taking Today?

    The Environmental Protection Agency (EPA) is approving a negative 
declaration submitted by the State of New York dated February 1, 2001. 
This negative declaration concerns existing commercial and industrial 
solid waste incinerators (CISWI) throughout the State of New York. The 
negative declaration satisfies the federal Emission Guidelines (EG) 
requirements of EPA's promulgated regulation entitled ``Standards of 
Performance for New Stationary Sources and Emission Guidelines for 
Existing Sources: Commercial and Industrial Solid Waste Incineration 
Units'' (65 FR 75338, December 1, 2000; and corrected at 66 FR 16605, 
March 27, 2001). The negative declaration officially certifies to EPA 
that, to the best of the State's knowledge, there are no CISWI sources 
in operation in the State of New York.

B. Why Is EPA Approving New York's Negative Declaration?

    EPA has evaluated the negative declaration submitted by New York 
for consistency with the Clean Air Act (Act), EPA guidelines and 
policy. EPA has determined that New York's negative declaration meets 
all the requirements and, therefore, EPA is approving the State's 
certification that there are no existing CISWI units in operation 
throughout the State.
    EPA's approval of New York's negative declaration is based on the 
following:
    (1) New York has met the requirements of Sec. 60.23(b) in Title 40, 
part 60, subpart B of the Code of Federal Regulations (40 CFR part 60) 
for submittal of a letter of negative declaration that certifies there 
are no existing facilities in the State. Such certification exempts the 
State from the requirements to submit a plan.
    (2) EPA's own source inventory indicates there are no existing 
CISWI units operating in the State of New York. In November 2000, EPA 
compiled an inventory of CISWI sources (Docket No. A-94-63, IV-J-28) as 
a required element of a CISWI Federal Plan that is

[[Page 41147]]

to be proposed in 2001. EPA's CISWI inventory was developed from EPA's 
Industrial Combustion Coordinated Rulemaking \1\ (ICCR) survey 
database. The ICCR survey database contains incineration data compiled 
by EPA in 1998 from responses to an information collection request.
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    \1\ The ICCR has not been proposed by EPA and is not planned for 
publication in the future.
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C. What if an Existing CISWI Source Is Discovered After Today's 
Action Becomes Effective?

    Section 60.2530 of 40 CFR 60, subpart DDDD (page 75363 @ 65 FR 
75338, December 1, 2001) requires that if, after the effective date of 
today's action, an existing CISWI unit is found in the State, the 
Federal Plan implementing the EG would automatically apply to that 
CISWI unit until a State Plan is approved by EPA.

D. What Is the Background for Emission Guidelines and State Plans?

    Section 111(d) of the Act requires that pollutants controlled under 
New Source Performance Standards (NSPS) must also be controlled at 
existing sources in the same source category. Once an NSPS is issued, 
EPA then publishes an EG applicable to the control of the same 
pollutant from existing (designated) facilities. States with designated 
facilities must then develop State Plans to adopt the EG into their 
body of regulations.
    Under section 129 of the Act, the EG is not federally enforceable. 
Section 129(b)(2) of the Act requires states to submit State Plans to 
EPA for approval. State Plans must be at least as protective as the EG, 
and they become federally enforceable upon EPA approval. The procedures 
for adopting and submitting State Plans, as well as state requirements 
for a negative declaration, are in 40 CFR part 60, subpart B.
    EPA originally issued the Subpart B provisions on November 17, 
1975. EPA amended subpart B on December 19, 1995, to allow the subparts 
developed under section 129 to include specifications that supersede 
the general provisions in subpart B regarding the schedule for 
submittal of State Plans, the stringency of the emission limitations, 
and the compliance schedules (60 FR 65414).

E. Where Can You Find the EG Requirements for CISWI sources?

    On December 1, 2000, under sections 111 and 129 of the Act, EPA 
issued the NSPS applicable to new CISWI sources and the EG applicable 
to existing CISWI sources. The NSPS and EG are codified at 40 CFR part 
60, subparts CCCC and DDDD (65 FR 75338), respectively.

F. Who Must Comply With the EG Requirements?

    All CISWI sources that commenced construction on or before November 
30, 1999 (``existing CISWI sources'') must comply with these 
requirements. See Sec. 60.2555 of 40 CFR part 60, subpart DDDD for a 
list of incinerator source categories that are exempt from the federal 
requirements for CISWIs.

G. What Are EPA's Conclusions?

    EPA has determined that New York's negative declaration meets all 
the requirements and, therefore, EPA is approving New York's 
certification that no CISWI units are in operation in New York State. 
If any existing CISWI sources are discovered in the future, the Federal 
Plan implementing the EG would automatically apply to that CISWI unit 
until the State Plan is approved by EPA.
    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 negative declaration 
should relevant adverse comments be filed. This rule will be effective 
October 9, 2001 without further notice unless the Agency receives 
significant, material adverse comments by September 6, 2001.
    If EPA receives significant, material adverse comments by the above 
date, the Agency will withdraw this action before the effective date by 
publishing a subsequent document in the Federal Register that will 
withdraw this final action. EPA will address all public comments 
received in a subsequent final rule based on the parallel proposed rule 
published in today's Federal Register. EPA will not institute a second 
comment period on this action. Any parties interested in commenting on 
this action should do so at this time.

H. Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

Executive Order 13045

    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.

Executive Order 13132

    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.
    EPA has concluded that this rule may have federalism implications. 
The only reason why this rule may have federalism implications is if in 
the future a CISWI source is found in the State of New York the source 
will become subject to the Federal Plan until a State Plan is approved 
by EPA. However, 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.

[[Page 41148]]

Executive Order 13175

    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.

Regulatory Flexibility

    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 because as a negative declaration it is not 
subject to the CISWI EG requirements. 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

    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, 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, local, or 
tribal governments, or to the private sector, result from this action.

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. 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). This rule will be effective October 9, 2001 unless EPA receives 
material adverse written comments by September 6, 2001.

National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and 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.

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 9, 2001. 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, Reporting and recordkeeping requirements, Waste treatment 
and disposal.

    Dated: July 26, 2001
Kathleen C. Callahan,
Acting 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:  62 U.S.C. 7401-7671q.

Subpart HH--New York

    2. Part 62 is amended by adding new Sec. 62.8106 and an 
undesignated heading to subpart HH to read as follows:
Air Emissions From Existing Commercial and Industrial Solid Waste 
Incinerator Units


Sec. 62.8106  Identification of plan--negative declaration.

    Letter from the New York State Department of Environmental 
Conservation, submitted February 1, 2001, certifying that there are no 
commercial and industrial solid waste incinerators in the State of New 
York subject to part 60, subpart DDDD of this chapter.
[FR Doc. 01-19558 Filed 8-6-01; 8:45 am]
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