[Federal Register Volume 67, Number 189 (Monday, September 30, 2002)]
[Rules and Regulations]
[Pages 61270-61272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24767]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[OH153-1a; FRL-7386-9]


Approval and Promulgation of State Implementation Plans; Ohio

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a negative declaration submitted by the 
State of Ohio which indicates that the State does not need regulations 
covering existing Small Municipal Waste Combustors (MWC) units. Ohio 
submitted its negative declaration regarding this category of sources 
in a letter dated June 25, 2002. The declaration was based on a 
systematic search of the State's internal databases and follow-up 
discussions with local air offices, which resulted in the determination 
that there are no affected small MWC units in Ohio.

DATES: This direct final rule is effective on November 29, 2002, 
without further notice unless EPA receives adverse written comments by 
October 30, 2002. If adverse comment is received, EPA will publish a 
timely withdrawal of this direct final rule in the Federal Register and 
inform the public that the rule will not take effect.

ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    A copy of the negative declaration is available for inspection at 
the U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (Please 
telephone John Paskevicz at (312) 886-6084 before visiting the Region 5 
Office.)

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Environmental 
Engineer, Regulation Development Section, Air Programs Branch (AR-18J), 
EPA, Region 5, Chicago, Illinois 60604, (312) 886-6084.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used we mean EPA.

Table of Contents

I. What is the background for this action?
II. Negative declarations and their justification.
III. EPA review of Ohio's negative declaration.
IV. Administrative Requirements

I. What Is the Background for This Action?

    On December 6, 2000, the EPA finalized a rule for small MWC units. 
EPA promulgated this rule based on sections 111(d) and 129 of the Clean 
Air Act (Act) Amendments of 1990. The federal rule includes emission 
guidelines for existing units and standards of performance for new, 
modified or reconstructed sources. EPA published the rule for existing 
small MWC units in the Federal Register on December 6, 2000, (65 FR 
76378), to be codified at 40 CFR part 60, subpart BBBB (Emission 
Guidelines for Small Municipal Waste Combustion Units.) EPA published 
rules for new, modified and reconstructed small MWC units in the 
Federal Register on December 6, 2000, (65 FR 76350), to be codified at 
40 CFR part 60, subpart AAAA (New Source Performance Standards for New 
Small Municipal Waste Combustion Units). The regulatory text and other 
background information for these final rulemakings can be accessed 
electronically from the EPA Technology Transfer Network website. For 
small MWC the Web site address is: http://www.epa.gov/ttn/atw/129/mwc/rimwc2.html.
    Sections 111(d) and 129 of the Act require States in which a 
designated existing facility is operating one or more small MWC units 
to submit to EPA a plan to implement and enforce the emission 
guidelines. If, however, there are no small MWC units and the State 
therefore chooses not to develop and submit such a plan, it must submit 
a negative declaration letter. (40 CFR 60.1510, 62.06.) Section 129 of 
the Act requires that the State plan be at least as protective as the 
emission guidelines and must provide for compliance by the affected 
facilities no later than 3 years after EPA approves the State plan, but 
no later than 5 years after EPA

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promulgates the emission guidelines. Sections 111(d) and 129 of the Act 
also require EPA to develop, implement and enforce a Federal 
Implementation Plan if a State fails to submit an approvable State 
plan. The small MWC plan must address regulatory applicability, 
increments of progress for retrofit, operator training and 
certification, operating practices, emission limits, continuous 
emission monitoring, stack testing, record keeping, and reporting, and 
requirements for air curtain combustors. States are required to follow 
the requirements of 40 CFR part 60, subpart B, and 40 CFR part 62, 
regarding the adoption and submittal of State plans for designated 
facilities.
    In addition to the publication of the emission guidelines document, 
EPA notified each of the States of the requirements listed in the rule. 
On February 23, 2001, EPA, Region 5 asked Ohio to provide information 
so we could determine if the State was required to develop and submit 
the required plan. The State began a detailed review of its internal 
databases to ascertain the status of small MWC facilities. This effort 
resulted in a determination there were no small MWC units and 
culminated in the State's request for a negative declaration.

II. Negative Declarations and Their Justification

    The EPA does not require States to develop plans or regulations to 
control emissions from sources for which there are none present in the 
State (40 CFR 62.06). If the State thinks that there may be some small 
MWC units in operation, it should examine available records on these 
sources before initiating the planning and regulation development 
process. If after a careful examination of available information, the 
State finds no sources for this source category, then it may prepare 
and submit to us a negative declaration stating there are no sources in 
the State which match this source category. This is done in lieu of 
submitting a control strategy.
    On June 25, 2002, the State of Ohio submitted to EPA a negative 
declaration regarding the need for a regulation covering small MWC 
units. The Ohio EPA searched for potentially affected sources in its 
air source Permit to Operate (PTO) databases. A scan of those files 
disclosed that from over 10,000 sources, a total of 2,478 units were 
revealed bearing the ``N'' source code, denoting an incinerator. This 
number included units placed on registration status as well as those 
issued PTOs, and includes many units shut down years and even decades 
ago. The state reviewed the equipment description on each ``N'' record 
which showed that very few of the units have the potential to approach 
the 35 ton per day threshold for small MWCs. Using this review 
approach, Ohio found that seven units needed to be studied more 
closely. Ohio EPA then mailed questionnaires to the facilities and 
contacted local air offices to discuss the potentially affected units. 
Following this effort the State concluded there are no existing small 
MWCs in Ohio either operating or shut down but capable of restarting.
    This conclusion is consistent with an inventory review conducted in 
May 1998 by EPA Regional Offices and State air pollution control 
agencies. Those agencies did not find any small MWC units in Ohio.

III. EPA Review of Ohio's Negative Declaration

    EPA has examined the State's negative declaration regarding the 
lack of need for a regulation controlling emissions from small MWC 
units. We agree that, at this time, there appear to be no unregulated 
small incinerators in Ohio which would require the adoption of rules to 
control this source category. If a new source chooses to construct in 
the State, it would be required to comply with new source performance 
standard requirements published for small MWC units on December 6, 2000 
(65 FR 76350). If, at a later date, an existing small MWC unit is 
identified in the State, the Federal plan implementing the emission 
guidelines contained in Subpart BBBB will automatically apply to that 
MWC unit until the State develops a plan and EPA approves it. 40 CFR 
60.1530.
    EPA is publishing this action without prior proposal because we 
view this as a noncontroversial revision and we anticipate no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the State's negative 
declaration should adverse written comments be filed. This action will 
be effective without further notice unless EPA receives relevant 
adverse written comment by October 30, 2002. Should EPA receive such 
comments, we will publish a final rule informing the public that this 
action will not take effect. Any parties interested in commenting on 
this action should do so at this time. If no comments are received, the 
public is advised that this action will be effective on November 29, 
2002.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves Ohio's declaration that there are no small MWC's 
located in Ohio which would be subject to an MWC regulation if one were 
adopted. Therefore, the State does not need to adopt a MWC regulation. 
Any new MWC's built in Ohio will be subject to New Source Performance 
Standards. Because this rule approves state negative declarations and 
does not impose any additional enforceable duty, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4). This rule also does not have a substantial direct 
effect on one or more Indian tribes, 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 by Executive Order 13175 (65 FR 67249, November 9, 2000), 
nor will it 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, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because it merely approves a state declaration that a rule 
implementing a federal standard, is unnecessary and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This rule also is not subject to 
Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not 
economically significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission,

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to use VCS in place of a SIP submission that otherwise satisfies the 
provisions of the Clean Air Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 November 29, 2002, unless EPA 
receives adverse written comments by October 30, 2002.
    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 November 29, 2002. 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, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: September 18, 2002.
Steve Rothblatt,
Acting Regional Administrator, Region 5.

    For the reasons stated in the preamble, 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: 42 U.S.C. 7401 et seq.

Subpart KK--Ohio

    2. A new center heading and Sec.  62.8855 are added to read as 
follows:

Emissions From Small Municipal Waste Combustion Units With 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 and Commenced 
Construction on or Before August 30, 1999


Sec.  62.8855  Identification of plan--negative declaration.

    On July 25, 2002, the State of Ohio certified to the satisfaction 
of the United States Environmental Protection Agency that no sources 
categorized as small Municipal Waste Combustors are located in the 
State of Ohio.
[FR Doc. 02-24767 Filed 9-27-02; 8:45 am]
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