[Federal Register Volume 68, Number 237 (Wednesday, December 10, 2003)]
[Rules and Regulations]
[Pages 68738-68740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30590]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[NV108-SWIa; FRL-7595-5]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Control of Emissions From 
Existing Commercial/Industrial Solid Waste Incinerator Units; Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a negative 
declaration submitted by the Nevada Division of Environmental 
Protection. The negative declaration certifies that commercial/
industrial solid waste incinerator units, subject to the requirements 
of sections 111(d) and 129 of the Clean Air Act, do not exist within 
the agency's air pollution control jurisdiction.

DATES: This rule is effective on February 9, 2004 without further 
notice, unless EPA receives adverse comments by January 9, 2004. If we 
receive such comment, we will publish a timely withdrawal in the 
Federal Register to notify the public that this rule will not take 
effect.

ADDRESSES: Send comments to Andrew Steckel, Rulemaking Office Chief 
(AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901, or e-mail to 
[email protected], or submit comments at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX, (415) 947-
4124, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d) and 129 of the Clean Air Act (CAA or the Act) 
require 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

[[Page 68739]]

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 commercial/
industrial solid waste incinerator (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, located at 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 for the submittal of a 111(d)/
129 plan.

II. Final EPA Action

    The Nevada Division of Environmental Protection (NDEP) has 
determined that there are no designated facilities subject to the CISWI 
unit EG requirements in its air pollution control jurisdiction. On 
October 16, 2003, NDEP submitted to EPA a negative declaration letter 
certifying this fact. EPA is amending 40 CFR part 62, subpart DD 
(Nevada) to reflect the receipt of this negative declaration letter.
    After publication of this Federal Register notice, if a CISWI 
facility is later found within the NDEP jurisdiction, then the 
overlooked facility will become subject to the requirements of the 
Federal CISWI 111(d)/129 plan, including the compliance schedule. The 
Federal plan would no longer apply if EPA subsequently were to receive 
and approve a 111(d)/129 plan from NDEP.
    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 
requirements 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 NDEP's negative declaration should relevant 
adverse or critical comments be filed.
    This rule will be effective February 9, 2004 without further notice 
unless the Agency receives relevant adverse comments by January 9, 
2004. If EPA receives such comments, then EPA will publish a timely 
withdrawal in the Federal Register to notify the public that the direct 
final approval will not take effect and we will address the comments in 
a subsequent final action based on the proposal. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

III. 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 a State determination 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 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 
negative declaration in response to 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

[[Page 68740]]

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 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 February 9, 2004. 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 NDEP 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, 
Sulfuric acid plants, Waste treatment and disposal.

    Dated: November 19, 2003.
Alexis Strauss,
Acting Regional Administrator, Region IX.

0
Part 62, Chapter I, Title 40 of the Code of Federal Regulations 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. 7401-7671q.

Subpart DD--Nevada

0
2. Section 62.7130 is amended by adding paragraph (c) to read as 
follows:


Sec.  62.7130  Identification of plan.

* * * * *
    (c) The Nevada Division of Environmental Protection submitted on 
October 16, 2003, a letter certifying that there are no existing 
commercial/industrial solid waste incineration units in its 
jurisdiction that are subject to 40 CFR part 60, subpart DDDD.

[FR Doc. 03-30590 Filed 12-9-03; 8:45 am]
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