[Federal Register Volume 69, Number 185 (Friday, September 24, 2004)]
[Rules and Regulations]
[Pages 57186-57188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21496]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region II Docket No. R02-OAR-2004-NJ-0003, FRL-7818-4]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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: This rule will be effective October 25, 2004.

ADDRESSES: Copies of the state submittal are available at the following 
addresses for inspection during normal business hours:
    Environmental Protection Agency, Region 2 Office, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    New Jersey Department of Environmental Protection, Office of Air 
Quality Management, Bureau of Air Pollution Control, 401 East State 
Street, CN027, Trenton, New Jersey 08625.
    Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket, Room B-108, 1301

[[Page 57187]]

Constitution Avenue (Mail Code 6102T), NW., Washington, DC 20460.

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 Taking Today?
    B. Why Is EPA Approving New Jersey's Negative Declaration?
    C. What if an Existing CISWI Source Is Discovered After the 
Effective Date of EPA's Final Action?
    D. What Comments Were Received on the Proposed Approval and How 
Has EPA Responded to Them?
    E. What Are EPA's Conclusions?
    F. Statutory and Executive Order Revisions.

A. What Action Is EPA Taking Today?

    The EPA is approving 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 62, subpart HHH), promulgated on August 15, 
2000) and therefore, exempt from the CISWI Emission Guidelines. 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 Approving 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. For additional details, see EPA's 
proposed approval published in the Federal Register on July 16, 2004 
(69 FR 42641).

C. What if an Existing CISWI Source Is Discovered After the Effective 
Date of EPA's Final Action?

    Section 60.2530 of 40 CFR 60, subpart DDDD (page 75363 @ 65 FR 
75338, December 1, 2001) requires that if, after the effective date of 
EPA's final action on New Jersey's negative declaration, an existing 
CISWI unit is found in the State, the Federal Plan (40 CFR 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 Comments Were Received on the Proposed Approval and How Has EPA 
Responded to Them?

    The public comment period on EPA's proposed approval ended on 
August 16, 2004. There were no comments received on EPA's proposed 
approval of New Jersey's negative declaration. Therefore, EPA is 
approving New Jersey's negative declaration.

E. 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.

F. 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 final rule 
applies to New Jersey's negative declaration letter for CISWI units, 
there are no companies affected by this approval 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 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 section 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

[[Page 57188]]

informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action 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 approves 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 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 final 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.

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, Acid gases, Carbon 
monoxide, commercial and industrial solid waste incinerators, 
Intergovernmental relations, Organics, Particulate matter, Lead, 
Reporting and recordkeeping requirements.

    Dated: September 16, 2004.
Jane M. Kenny,
Regional Administrator, Region 2.

    Part 62, chapter I, title 40 of the Code of Federal Regulations 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 FF--New Jersey

    2. Part 62 is amended by adding new Sec.  62.7604 and an 
undesignated heading to subpart FF to read as follows:

Air Emissions From Existing Commercial and Industrial Solid Waste 
Incinerator Units


Sec.  62.7604  Identification of plan--negative declaration.

    Letter from the New Jersey Department of Environmental Protection, 
submitted March 4, 2004, certifying that there are no commercial and 
industrial solid waste incinerators in the State of New Jersey subject 
to part 60, subpart DDDD of this chapter.

[FR Doc. 04-21496 Filed 9-23-04; 8:45 am]
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