[Federal Register Volume 68, Number 101 (Tuesday, May 27, 2003)]
[Rules and Regulations]
[Pages 28773-28774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13176]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[WV60-6027a; FRL-7503-2]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; State of West Virginia; Control 
of Emissions From Existing Small Municipal Waste Combustion Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the section 
111(d)/129 negative declaration submitted by the West Virginia 
Department of Environmental Protection, Division of Air Quality (DAQ). 
The negative declaration certifies that small municipal waste 
combustion (MWC) 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 July 28, 2003, unless EPA receives 
adverse written comment by June 26, 2003. If EPA receives such 
comments, it 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: 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 small MWC 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 6, 2000 (65 FR 76350 and 76378), EPA promulgated small 
municipal waste combustion unit new source performance standards, 40 
CFR part 60, subparts AAAA, and emission guidelines (EG), subpart BBBB, 
respectively.
    The designated facility to which the EG apply is each existing 
small MWC unit that has a design combustion capacity of 35 to 250 tons 
per day of municipal solid waste (MSW) and commenced construction on or 
before August 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 parts 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.

Final EPA Action

    The DAQ has determined that there are no designated facilities, 
subject to the small MWC unit EG requirements, in its air pollution 
control jurisdiction. Accordingly, the DAQ has submitted to EPA a 
negative declaration letter certifying this fact. The submittal date of 
the letter is July 3, 2001.
    Therefore, EPA is amending part 62 to reflect the receipt of the 
negative declaration letter from the DAQ. Amendments are being made to 
40 CFR part 62, subpart XX (West Virginia).
    After publication of this Federal Register notice, if a small MWC 
facility is later found within jurisdiction of the DAQ, then the 
overlooked facility will become subject to the requirements of the 
Federal small MWC 111(d)/129 plan, including the compliance schedule, 
as promulgated on January 31, 2003 (68 FR 5144). The Federal plan would 
no longer apply if EPA subsequently receives and approves a 111(d)/129 
plan from the DAQ.
    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. 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 or critical comments be filed. This rule will be 
effective July 28, 2003, without further notice unless the Agency 
receives relevant adverse comments by June 26, 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 28774]]

Statutory and Executive Order Reviews

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 (Pub. L. 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 July 28, 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 
declaration submitted by the West Virginia Department of Environmental 
Protection, Division of Air Quality, 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: April 30, 2003.
Donald S. Welsh,
Regional Administrator, Region III.

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40 CFR part 62, subpart XX, is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart XX--West Virginia

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2. Subpart XX is amended by adding an undesignated center heading and 
Sec.  62.12160 to read as follows:

Emissions From Existing Small Municipal Waste Combustion Units


Sec.  62.12160  Identification of plan--negative declaration.

    Letter from the West Virginia Department of Environmental 
Protection, Division of Air Quality, submitted July 3, 2001, certifying 
that there are no existing small municipal waste combustion units 
within the State of West Virginia that are subject to 40 CFR part 60, 
subpart BBBB.

[FR Doc. 03-13176 Filed 5-23-03; 8:45 am]
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