[Federal Register Volume 69, Number 43 (Thursday, March 4, 2004)]
[Rules and Regulations]
[Pages 10165-10167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4818]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[PA190-7008a; FRL-7631-7]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Commonwealth of Pennsylvania; 
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 a section 111(d)/
129 negative declaration submitted by the Pennsylvania Department of 
Environmental Protection (PADEP). 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 (the Act), 
do not exist within its air pollution control jurisdiction, excluding 
the jurisdictions of the Health Departments (air pollution control 
agencies) in Allegheny and Philadelphia counties.

DATES: This rule is effective on May 3, 2004 without further notice, 
unless EPA receives adverse written comment by April 5, 2004. 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: Comments may be submitted either by mail or electronically. 
Written comments should be mailed to Walter Wilkie, Chief, Air Quality 
Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
Electronic comments should be sent either to [email protected] or 
to http://www.regulations.gov, which is an alternative method for 
submitting electronic comments to EPA. To submit comments, please 
follow the detailed instructions described in part II of the 
Supplementary Information section. 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, P.E., at (215) 814-
2190, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d) and 129 of the Act 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 Act, also requires EPA to promulgate EG for MWC units that 
emit a mixture of air pollutants. These pollutants include organics 
(i.e., 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, subpart 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 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.
    The Harrisburg Materials, Energy, Recycling and Resource Recovery 
Facility was the only known designated facility (based on the derated 
capacity of its two combustion units) subject to the EG. However, on 
June 18, 2003, the City of Harrisburg permanently ceased operation of 
its two small MWC units. Permanent closure of the units was confirmed 
by PADEP staff during inspections of the facility on August 4 and 11, 
2003.

II. Final EPA Action

    The PADEP has determined that there are no designated facilities, 
subject to the small MWC unit EG requirements, in its air pollution 
control jurisdiction. Accordingly, the PADEP Bureau of Air Quality 
Director has submitted to EPA a negative declaration letter certifying 
this fact. The submittal date of the letter is October 30, 2003.
    Therefore, EPA is amending part 62 to reflect the receipt of the 
negative declaration letter from the PADEP. Amendments are being made 
to 40 CFR part 62, subpart NN (Pennsylvania). These amendments exclude 
the local Pennsylvania air pollution control jurisdictions that 
submitted their own approvable negative declarations--Allegheny and 
Philadelphia (City) counties.
    After publication of this Federal Register notice, if a small MWC 
unit is later found within jurisdiction of the PADEP, then that unit 
will become subject to the requirements of the Federal small MWC 
111(d)/129 plan, as promulgated on January 31, 2003 (68 FR 5144).
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the section 111(d)/129 negative declaration 
if adverse comments are filed. This rule will be effective on May 3, 
2004 without further

[[Page 10166]]

notice unless EPA receives adverse comment by April 5, 2004. If EPA 
receives adverse comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. 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.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number PA190-7008 in the subject line on the first page 
of your comment. Please ensure that your comments are submitted within 
the specified comment period. Comments received after the close of the 
comment period will be marked ``late.'' EPA is not required to consider 
these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], attention PA190-7008. EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
without going through Regulations.gov, EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket.
    ii. Regulations.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select ``Environmental Protection Agency'' at 
the top of the page and use the ``go'' button. The list of current EPA 
actions available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the mailing address identified in the ADDRESSES 
section of this document. These electronic submissions will be accepted 
in WordPerfect, Word or ASCII file format. Avoid the use of special 
characters and any form of encryption.
    2. By Mail. Written comments should be addressed to the EPA 
Regional office listed in the ADDRESSES section of this document.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, confidential business information (CBI), or other 
information whose disclosure is restricted by statute. When EPA 
identifies a comment containing copyrighted material, EPA will provide 
a reference to that material in the version of the comment that is 
placed in the official public rulemaking file. The entire printed 
comment, including the copyrighted material, will be available at the 
Regional Office for public inspection.

Submittal of CBI Comments

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD-ROM, mark the outside of the 
disk or CD-ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

Considerations when Preparing Comments to EPA

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

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 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

[[Page 10167]]

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 section 111(d)/129 negative declarations, 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 section 111(d)/129 negative 
declaration submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a section 
111(d)/129 negative declaration, to use VCS in place of a section 
111(d)/129 negative declaration 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 May 3, 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 Pennsylvania negative 
declaration for small MWC units 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, Administration practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, Carbon 
monoxide, Intergovernmental relations, Paper and paper products 
industry, Phosphate, Reporting and recordkeeping requirements, Sulfur 
oxides, Sulfur acid plants, Waste Treatment and disposal.

    Dated: February 25, 2004.
James W. Newsom,
Acting Regional Administrator, Region III.

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40 CFR part 62 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 NN--Pennsylvania

0
2. Subpart NN is amended by adding Sec.  62.9647 to read as follows:

Emissions from Existing Small Municipal Waste Combustion Units


Sec.  62.9647  Identification of plan--negative declaration.

    October 30, 2003 letter from the Pennsylvania Department of 
Environmental Protection, Bureau of Air Quality, certifying that there 
are no existing small municipal waste combustion units within 
Pennsylvania, excluding Allegheny and Philadelphia counties, that are 
subject to 40 CFR part 60, subpart BBBB.
[FR Doc. 04-4818 Filed 3-3-04; 8:45 am]
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