[Federal Register Volume 68, Number 1 (Thursday, January 2, 2003)]
[Rules and Regulations]
[Pages 48-50]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-33094]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[DC051-7004a; DE068-7004a; PA186-7004a; FRL-7434-3]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Delaware, the District of 
Columbia, and Philadelphia, Pennsylvania; Control of Emissions From 
Existing Commercial/Industrial Solid Waste (CISWI) Incinerator Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action to approve the section 
111(d)/129 negative declarations submitted by the District of Columbia, 
the State of Delaware, and the City of Philadelphia, Pennsylvania. Each 
negative declaration certifies that commercial/industrial solid waste 
incinerator (CISWI) units, subject to the requirements of sections 
111(d) and 129 of the Clean Air Act (CAA), do not exist within its air 
pollution control jurisdiction.

DATES: This final rule is effective March 3, 2003 unless within 
February 3, 2003 adverse or critical comments are received. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Written comments should be mailed to Walter Wilkie, Deputy 
Chief, Air Quality Planning and Information Services Branch, Mailcode 
3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours at the Air Protection Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: James B. Topsale at (215) 814-2190, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d) and 129 of the CAA requires states to submit plans 
to control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities (designated facilities) whenever standards 
of performance have been established under section 111(b) for new 
sources of the same type, and EPA has established emission guidelines 
(EG) for such existing sources. A designated pollutant is any pollutant 
for which no air quality criteria have been issued, and which is not 
included on a list published under section 108(a) or section 
112(b)(1)(A) of the CAA, but emissions of which are subject to a 
standard of performance for new stationary sources. However, section 
129 of the CAA, also requires EPA to promulgate EG for CISWI units that 
emit a mixture of air pollutants. These pollutants include organics 
(dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), 
acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and 
particulate matter (including opacity).
    On December 1, 2000 (65 FR 75338), EPA promulgated CISWI unit new 
source performance standards and EG, 40 CFR part 60, subparts CCCC and 
DDDD, respectively.
    The designated facility to which the EG apply is each existing 
CISWI unit, as defined in subpart DDDD, that commenced construction on 
or before November 30, 1999.
    Subpart B of 40 CFR part 60 establishes procedures to be followed 
and requirements to be met in the development and submission of state 
plans for controlling designated pollutants. Also, 40 CFR part 62 
provides the procedural framework for the submission of these plans. 
When designated facilities are located in a state, the state must then 
develop and submit a plan for the control of the designated pollutant. 
However, 40 CFR 60.23(b) and 62.06 provide that if there are no 
existing sources of the designated pollutant in the state, the state 
may submit a letter of certification to that effect (i.e., negative 
declaration) in lieu of a plan. The negative declaration exempts the 
state from the requirements of subpart B that require the submittal of 
a 111(d)/129 plan.

II. Final EPA Action

    The District of Columbia, the State of Delaware, and the City of 
Philadelphia, Pennsylvania have determined that there are no designated 
facilities, subject to the CISWI unit EG requirements, in their 
respective air pollution control jurisdiction. Accordingly, each air 
pollution control agency has submitted to EPA a negative declaration 
letter certifying this fact. The submittal dates of these letters are 
November 27, November 16, and February 9, 2001, respectively.
    Therefore, EPA is amending part 62 to reflect the receipt of these 
negative declaration letters from the noted air pollution control 
agencies. Amendments are being made to 40 CFR part 62, subparts J 
(District of Columbia), I (Delaware), and NN (Pennsylvania). With 
respect to subpart NN, this action is only applicable to the City of 
Philadelphia air pollution control agency's jurisdiction; it does not 
include the remaining geographical areas of Pennsylvania.
    After publication of this Federal Register notice, if a CISWI 
facility is later found within either one of the three noted 
jurisdictions, then the overlooked facility will become subject to the 
requirements of the Federal CISWI 111(d)/129 plan, including the 
compliance schedule, when promulgated. The Federal plan would no longer 
apply if EPA subsequently receives and approves a 111(d)/129 plan from 
the jurisdiction with the overlooked CISWI facility.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirement for state air pollution control agencies under 40 CFR parts 
60 and 62. In the proposed rules section of this Federal Register 
publication, EPA is publishing a separate document that will serve as 
the proposal to approve each negative declaration should relevant 
adverse or critical comments be filed.
    This rule will be effective March 3, 2003 without further notice 
unless the Agency receives relevant adverse comments by February 3, 
2003. If EPA receives such comments, then EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
did not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

[[Page 49]]

III. Administrative Requirements

A. General 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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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 pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, 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 tribal implications because it will 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). 
This action also does not have Federalism implications because it does 
not 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). 
This action merely approves a state rule implementing a Federal 
standard, 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing 111(d)/129 plan 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 111(d)/129 plan submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/
129 plan 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. 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.).

B. 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. 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 March 3, 2003. 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 approving the section 111(d)/129 negative declarations 
submitted by the District of Columbia, the State of Delaware, and the 
City of Philadelphia, Pennsylvania 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, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: December 20, 2002.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

    40 CFR part 62 is amended as follows:

PART 62--[AMENDED]

    1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart I--Delaware

    2. Subpart I is amended by adding an undesignated center heading 
and Sec.  62.1985 to read as follows:

Emissions From Existing Commercial/Industrial Solid Waste Incineration 
Units


Sec.  62.1985  Identification of plan--negative declaration.

    Letter from the Delaware Department of Natural Resources and 
Environmental Control submitted November 16, 2001, certifying that 
there are no existing commercial/industrial solid waste incineration 
units within the State of Delaware that are subject to 40 CFR part 60, 
subpart DDDD.

Subpart J--District of Columbia

    3. Subpart J is amended by adding an undesignated center heading 
and Sec.  62.2155 to read as follows:

Emissions From Existing Commercial/Industrial Solid Waste Incineration 
Units


Sec.  62.2155  Identification of plan--negative declaration.

    Letter from the District of Columbia Department of Health, 
Environmental Health Administration, submitted November 27, 2001, 
certifying that there are no existing commercial/industrial solid waste 
incineration units within the District of Columbia that are subject to 
40 CFR part 60, subpart DDDD.

Subpart NN--Pennsylvania

    4. Subpart NN is amended by adding an undesignated center heading 
and Sec.  62.9670 to read as follows:

Emissions From Existing Commercial/Industrial Solid Waste Incineration 
Units


Sec.  62.9670  Identification of plan--negative declaration.

    Letter from the City of Philadelphia, Department of Public Health, 
submitted February 9, 2001, certifying that there are no existing 
commercial/industrial

[[Page 50]]

solid waste incineration units within the City of Philadelphia, 
Pennsylvania that are subject to 40 CFR part 60, subpart DDDD.

[FR Doc. 02-33094 Filed 12-31-02; 8:45 am]
BILLING CODE 6560-50-P