[Federal Register Volume 69, Number 136 (Friday, July 16, 2004)]
[Proposed Rules]
[Pages 42641-42644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16208]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region II Docket No. R02-OAR-2004-NJ-0003, FRL-7788-4]


Approval and Promulgation of State Plans for Designated 
Facilities; New Jersey

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
a negative declaration submitted by the State of New Jersey. The 
negative declaration fulfills EPA's promulgated Emission Guidelines for 
existing commercial and industrial solid waste incinerator (CISWI) 
sources. In accordance with the Emission Guidelines, States are not 
required to submit a plan to implement and enforce the Emission 
Guidelines if there are no existing CISWI sources in the State and if 
it submits a negative declaration letter in place of the State Plan.

DATES: Comments must be received on or before August 16, 2004.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2004-NJ-0003 by one of the following 
methods:
    A. Federal eRulemaking Portal:  http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material 
in EDocket (RME), EPA's electronic public docket and comment system, is 
EPA's preferred method for receiving comments. Once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    C. E-mail: [email protected]
    D. Fax: (212) 637-3901.
    E. Mail: ``RME ID Number R02-OAR-2004-NJ-0003'', Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    F. Hand Delivery or Courier. Deliver your comments to: Raymond 
Werner, Chief, Air Programs Branch, Environmental Protection Agency, 
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.
    Instructions: Direct your comments to Regional Material in EDocket 
(RME) ID Number R02-OAR-2004-NJ-0003. EPA's policy is that all comments 
received will be included in the public docket without change and may 
be made available online at http://docket.epa.gov/rmepub/, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you

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consider to be CBI or otherwise protected through Regional Material in 
EDocket (RME), regulations.gov, or e-mail. The EPA RME Web site and the 
Federal regulations.gov Web site are ``anonymous access'' systems, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through RME or 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. 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. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in hard copy at the Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866. EPA requests that 
if at all possible, you contact the contact listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
([email protected]), Air Programs Branch, Environmental 
Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-
1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the SUPPLEMENTARY INFORMATION section:

Table of Contents

A. What Action Is EPA Proposing Today?
B. Why Is EPA Proposing To Approve New Jersey's Negative 
Declaration?
C. What If an Existing CISWI Source Is Discovered After EPA Takes 
Final Action on New Jersey's Negative Declaration?
D. What Is the Background for Emission Guidelines and State Plans?
E. Where Can You Find the Emission Guidelines Requirements for CISWI 
Sources?
F. Who Must Comply With the Emission Guidelines Requirements?
G. What Are EPA's Conclusions?
H. Statutory and Executive Order Revisions.

A. What Action Is EPA Proposing Today?

    The EPA is proposing to approve a negative declaration submitted by 
the State of New Jersey dated March 4, 2004. This negative declaration 
finds that there are no existing facilities subject to regulation as 
commercial and industrial solid waste incinerators (CISWI) in the State 
of New Jersey. The negative declaration satisfies the federal Emission 
Guidelines requirements of EPA's promulgated regulation entitled 
``Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Commercial and Industrial Solid Waste 
Incineration Units'' (65 FR 75338, December 1, 2000; and corrected at 
66 FR 16605, March 27, 2001). The negative declaration officially 
certifies to EPA that, to the best of the State's knowledge, there are 
no CISWI sources in operation in the State of New Jersey.
    In its March 4, 2004, letter, New Jersey further stated that its 
negative declaration was consistent with the EPA's database of CISWI 
units which shows only one potential CISWI incinerator located at the 
Hoffman LaRoche (HLR) facility in Nutley, New Jersey. However, New 
Jersey stated that the HLR incinerator is regulated as a co-fired 
combustor under EPA's Hospital/Medical/Infectious Waste Incinerator 
(HMIWI) Federal Plan (title 40, part 62, subpart HHH of the Code of 
Federal Regulations (40 CFR part 62, subpart HHH), promulgated on 
August 15, 2000) and therefore, exempt from the CISWI Emission 
Guidelines. As further detailed in section B below (``Why is EPA 
Proposing To Approve New Jersey's Negative Declaration?''), EPA agrees 
with New Jersey that the HLR incinerator is considered a co-fired 
combustor under EPA's HMIWI Federal Plan and, due to the nature of the 
waste combusted in the incinerator, is exempt from the CISWI Emission 
Guidelines.

B. Why Is EPA Proposing To Approve New Jersey's Negative Declaration?

    EPA has evaluated the negative declaration submitted by New Jersey 
for consistency with the Clean Air Act (Act), EPA guidelines and 
policy. EPA has determined that New Jersey's negative declaration meets 
all applicable requirements and, therefore, EPA is approving the 
State's certification that there are no existing CISWI units in 
operation throughout the State.
    EPA's approval of New Jersey's negative declaration is based on the 
following:
    (1) New Jersey has met the requirements of Sec.  60.23(b) in 40 CFR 
part 60, subpart B for submittal of a letter of negative declaration 
that certifies there are no existing facilities in the State. Such 
certification exempts the State from the requirements to submit a plan.
    (2) Although EPA's November 2000 source inventory indicated there 
was one existing CISWI unit operating in the State of New Jersey at the 
HLR facility, the owner, in a letter dated June 14, 2004, notified EPA 
that its incinerator is exempt from the CISWI Federal Plan and CISWI 
Emission Guidelines. In its June 2004 notification letter, HLR stated 
that its incinerator combusts waste consisting of more than ninety 
percent pathological and low level radioactive waste and is therefore, 
in accordance with Sec.  62.14525 of the CISWI Federal Plan and 40 CFR 
part 60, subpart DDDD (CISWI Emission Guidelines), exempt from CISWI 
requirements, except for recordkeeping requirements. EPA has reviewed 
HLR's Exemption Notification and agrees with the owner's exemption 
request. A copy of HLR's June 14, 2004, Exemption Notification letter 
and EPA's correspondence with the owner is available, upon request, 
from the EPA Regional Office listed in the ADDRESSES section of this 
document or it can be viewed at http://docket.eps.gov/rmepub/.
    It should be noted that since HLR's incinerator also conforms to 
the definition of a co-fired combustor under the HMIWI Federal Plan, 
the owner is only required to maintain records as to the type and 
quantity of waste combusted. Under the HMIWI Federal Plan, a co-fired 
combustor is considered an incinerator that combusts waste solids 
consisting of ten percent or less HMIWI waste.

C. What If an Existing CISWI Source Is Discovered After EPA Takes Final 
Action on New Jersey's Negative Declaration?

    Section 60.2530 of 40 CFR part 60, subpart DDDD (page 75363 at 65 
FR 75338, December 1, 2001) requires that if, after the effective date 
of EPA's final action on New Jersey's negative

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declaration, an existing CISWI unit is found in the State, the Federal 
Plan (40 CFR part 62, subpart III, promulgated on October 3, 2003) 
implementing the Emission Guidelines would automatically apply to that 
CISWI unit until a State Plan is approved by EPA.

D. What Is the Background for Emission Guidelines and State Plans?

    Section 111(d) of the Act requires that pollutants controlled under 
New Source Performance Standards (NSPS) must also be controlled at 
existing sources in the same source category. Once an NSPS is issued, 
EPA then publishes an Emission Guidelines applicable to the control of 
the same pollutant from existing (designated) facilities. States with 
designated facilities must then develop State Plans to adopt the 
Emission Guidelines into their body of regulations.
    Under section 129 of the Act, the Emission Guidelines is not 
federally enforceable. Section 129(b)(2) of the Act requires states to 
submit State Plans to EPA for approval. State Plans must be at least as 
protective as the Emission Guidelines, and they become federally 
enforceable upon EPA approval. The procedures for adopting and 
submitting State Plans, as well as state requirements for a negative 
declaration, are in 40 CFR part 60, subpart B.
    EPA originally issued the subpart B provisions on November 17, 
1975. EPA amended subpart B on December 19, 1995, to allow the subparts 
developed under section 129 to include specifications that supersede 
the general provisions in subpart B regarding the schedule for 
submittal of State Plans, the stringency of the emission limitations, 
and the stringency of compliance schedules (60 FR 65414).

E. Where Can You Find the Emission Guidelines Requirements for CISWI 
Sources?

    On December 1, 2000, under sections 111 and 129 of the Act, EPA 
issued the NSPS applicable to new CISWI sources and the Emission 
Guidelines applicable to existing CISWI sources. The NSPS and Emission 
Guidelines are codified at 40 CFR part 60, subparts CCCC and DDDD (65 
FR 75337), respectively.

F. Who Must Comply With the Emission Guidelines Requirements?

    If you own or operate a combustion device that combusts commercial 
and industrial waste and you (1) began construction of your CISWI unit 
on or before November 30, 1999, or (2) began reconstruction or 
modification of your CISWI unit prior to June 1, 2001, you must comply 
with these requirements. See Sec.  60.2555 of 40 CFR part 60, subpart 
DDDD for a list of incinerator source categories that are exempt from 
the Federal requirements for CISWIs.

G. What Are EPA's Conclusions?

    EPA has determined that New Jersey's negative declaration meets all 
applicable requirements and, therefore, EPA is approving New Jersey's 
certification that no CISWI units are in operation within the State of 
New Jersey. If any existing CISWI sources are discovered in the future, 
the Federal Plan implementing the Emission Guidelines would 
automatically apply to that CISWI unit until the State Plan is approved 
by EPA.

H. Statutory and Executive Order Revisions

Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * * '' 44 U.S.C. 3502(3)(A). Because the proposed rule 
applies to New Jersey's negative declaration letter for CISWI units, 
there are no companies affected by this proposal and therefore, the 
Paper Reduction Act does not apply.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because as a negative declaration no sources 
in the state are subject to the CISWI Emission Guidelines requirements. 
Therefore, because the Federal proposed approval does not create any 
new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action proposes to 
approve pre-existing requirements under State or local law, and imposes 
no new requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a

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regulation that has federalism implications and that preempts State law 
unless the Agency consults with State and local officials early in the 
process of developing the proposed regulation.
    EPA has concluded that this rule may have federalism implications. 
The only reason why this rule may have federalism implications is if in 
the future a CISWI unit is found within the State of New Jersey the 
unit will become subject to the Federal Plan until a State Plan is 
approved by EPA. However, it will not impose substantial direct 
compliance costs on State or local governments, nor will it preempt 
State law. Thus, the requirements of sections 6(b) and 6(c) of the 
Executive Order do not apply to this rule.

Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not 
apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

Executive Order 13045, Protection of Children From Environmental Health 
Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

Executive Order 13211, Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: July 8, 2004.
Walter Mugdan,
Acting Regional Administrator, Region 2.
[FR Doc. 04-16208 Filed 7-15-04; 8:45 am]
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