[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Rules and Regulations]
[Pages 54715-54718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27283]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region II Docket No. PR6-233a, FRL-7093-9]


Approval and Promulgation of State Plans for Designated 
Facilities; Puerto Rico

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 Commonwealth of Puerto Rico. The 
negative declaration satisfies EPA's promulgated Emission Guidelines 
(EG) for existing small municipal waste combustion (MWC) units. In 
accordance with the EG, states are not required to submit a plan to 
implement and enforce the EG if there are no existing small MWC units 
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 December 31, 2001 without 
further notice, unless EPA receives adverse comment by November 29, 
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.
    A copy of the Commonwealth submittal is available for inspection at 
the Region 2 Office in New York City. Those interested in inspecting 
the submittal must arrange an appointment in advance by calling (212) 
637-4249. Alternatively, appointments may be arranged via e-mail by 
sending a message to Ted Gardella at [email protected]. The 
office address is 290 Broadway, Air Programs Branch, 25th Floor, New 
York, New York 10007-1866.
    A copy of the Commonwealth submittal is also available for 
inspection at the respective offices:

Puerto Rico Environmental Quality Board, National Plaza Building, 431 
Ponce De Leon Avenue, Hato Rey, Puerto Rico 00917.

Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, S.W., Washington, 
D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, telephone, (212) 637-4249.

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 Puerto Rico's negative declaration?
C. What if an existing small MWC unit is discovered after today's 
action becomes effective?
D. What is the background for Emission Guidelines and State Plans?
E. Where can you find the EG requirements for small MWC units?

[[Page 54716]]

F. Who must comply with the EG 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 Commonwealth of Puerto Rico dated August 
2, 2001. This negative declaration concerns existing small municipal 
waste combustors throughout the Commonwealth of Puerto Rico. The 
negative declaration satisfies the federal Emission Guidelines (EG) 
requirements of EPA's promulgated regulation entitled ``Emission 
Guidelines for Existing Small Municipal Waste Combustion Units'' (65 FR 
76378, December 6, 2000). The negative declaration officially certifies 
to EPA that, to the best of the Commonwealth's knowledge, there are no 
small MWC units in operation in the Commonwealth of Puerto Rico.

B. Why Is EPA Approving Puerto Rico's Negative Declaration?

    EPA has evaluated the negative declaration submitted by Puerto Rico 
for consistency with the Clean Air Act (Act), EPA guidelines and 
policy. EPA has determined that Puerto Rico's negative declaration 
meets all the requirements and, therefore, EPA is approving the 
Commonwealth's certification that there are no existing small MWC units 
in operation throughout the Commonwealth. Puerto Rico has certified in 
its negative declaration that it searched island wide all the 
facilities that operate solid waste combustors. Puerto Rico's search 
included permits and EPA's Aerometric Information Retrival System 
(AIRS).
    EPA's approval of Puerto Rico's negative declaration is based on 
the following:
    (1) Puerto Rico 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 Commonwealth. Such 
certification exempts Puerto Rico from the requirements to submit a 
plan.
    (2) EPA's own source inventory indicates there are no existing 
small MWC units operating in the Commonwealth of Puerto Rico. During 
July 1998, EPA compiled an inventory of small MWC units as a required 
element of the small MWC EG.

C. What if an Existing Small MWC Unit Is Discovered After Today's 
Action Becomes Effective?

    Section 60.1530 of 40 CFR part 60, subpart BBBB (page 76386, 65 FR 
76378, December 6, 2000) requires that if, after the effective date of 
today's action, an existing small MWC unit is found in the State, the 
Federal Plan implementing the EG would automatically apply to that 
small MWC unit until a State Plan is approved by EPA.
    The Federal Plan was proposed on June 14, 2001 (66 FR 32484) and is 
expected to be promulgated in early 2002. The Federal Plan will apply 
to small MWCs in states, commonwealths, and territories (1) where the 
EPA inventory identifies small MWCs and a plan is required and has not 
been submitted and approved by EPA and (2) where the EPA inventory did 
not identify any small MWC and a negative declaration has been received 
and approved by EPA (such as Puerto Rico) and a small MWC is 
subsequently identified in the State or territory. If and when a State 
Plan (or in this case a Commonwealth Plan) is submitted and approved 
that applies to the small MWC, the Federal Plan would no longer apply.

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 Small MWC Units?

    On December 6, 2000, under sections 111 and 129 of the Act, EPA 
issued the NSPS applicable to new MWC units and the EG applicable to 
existing small MWC units. The NSPS and EG are codified at 40 CFR part 
60, subparts AAAA (65 FR 76350) and BBBB (65 FR 76378), respectively.

F. Who Must Comply With the EG Requirements?

    A small MWC unit having the capacity to combust at least 35 tons 
per day of municipal solid waste but no more than 250 tons per day of 
municipal solid waste or refuse derived fuel that commenced 
construction on or before August 30, 1999 (``existing small MWC unit'') 
must comply with these requirements. See Sec. 60.1555 of 40 CFR part 
60, subpart BBBB for a list of small MWC units exempt from the federal 
requirements.

G. What Are EPA's Conclusions?

    EPA has determined that Puerto Rico's negative declaration meets 
all the requirements and, therefore, EPA is approving Puerto Rico's 
certification that no small MWC units are in operation in the 
Commonwealth of Puerto Rico. If any existing small MWC units are 
discovered in the future, the Federal Plan implementing the EG would 
automatically apply to that small MWC 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 
December 31, 2001 without further notice unless the Agency receives 
significant, material adverse comments by November 29, 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

[[Page 54717]]

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 small MWC unit is found in the Commonwealth of Puerto Rico 
the unit 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.

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 small MWC 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, commonwealth, 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, 
commonwealth, 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 December 31, 2001 unless EPA 
receives material adverse written comments by November 29, 2001.

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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 December 31, 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: October 19, 2001.
William J. Muszynski,
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 BBB--Puerto Rico

    2. Part 62 is amended by adding new Sec. 62.13105 and an 
undesignated heading to subpart BBB to read as follows:
    Air Emissions From Existing Small Municipal Waste Combustion Units 
With The Capacity To Combust At Least 35 Tons Per Day But No More Than 
250 Tons Per Day Of Municipal Solid Waste Or Refuse Derived Fuel and 
Constructed on or Before August 30, 1999.


Sec. 62.13105  Identification of plan--negative declaration.

    Letter from the Puerto Rico Environmental Quality Board, submitted 
August 2, 2001, certifying that there are no existing small municipal 
waste combustion units in the Commonwealth of Puerto Rico subject to 
part 60, subpart BBBB of this chapter.

[FR Doc. 01-27283 Filed 10-29-01; 8:45 am]
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