[Federal Register Volume 70, Number 6 (Monday, January 10, 2005)]
[Rules and Regulations]
[Pages 1668-1670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-342]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[R06-OAR-2004-NM-0001; FRL-7858-5]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants: Bernalillo County, NM; Negative Declaration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a negative declaration submitted by the City 
of Albuquerque (Bernalillo County), New Mexico, which certifies that 
there are no existing commercial and industrial solid waste 
incineration units in Bernalillo County subject to the requirements of 
sections 111(d) and 129 of the Clean Air Act (CAA). This is a direct 
final rule action without prior notice and comment because this action 
is deemed noncontroversial.

DATES: This rule is effective on March 11, 2005 unless adverse comments 
are received by February 9, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID No. R06-OAR-2004-NM-0001. All 
documents in the docket are listed in the Regional Material in EDocket 
(RME) index at http://docket.epa.gov/rmepub/, once in the system, 
select ``quick search,'' then key in the appropriate RME Docket 
identification number. 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 Planning Section (6PD-L), Environmental Protection Agency, 1445 
Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 am and 4:30 pm weekdays except 
for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below or Mr. Bill Deese at (214) 665-7253 
to make an appointment. If possible, please make the appointment at 
least two working days in advance of your visit. There will be a 15 
cent per page fee for making photocopies of documents. On the day of 
the visit, please check in at the EPA Region 6 reception area at 1445 
Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    Albuquerque Environmental Health Department, Air Pollution Control 
Division, One Civic Plaza, Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Mr. Kenneth W. Boyce, Air Planning 
Section (6PD-L), Multimedia Planning and Permitting Division, U.S. EPA, 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202, (214) 665-7259, e-mail 
address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' are used we mean the EPA.

[[Page 1669]]

I. What Is the Background for This Action?

    Section 129 of the CAA requires us to develop new source 
performance standards (NSPS) and emission guidelines (EG) for each 
category of solid waste incineration units which includes these 
categories addressed in today's notice: existing commercial and 
industrial solid waste incinerator units. Such standards shall include 
emissions limitations and other requirements applicable to new units 
and guidelines required by section 111(d) of the CAA.
    Section 111(d) of the CAA requires states to submit plans to 
control certain pollutants (designated pollutants) at existing 
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 for such existing 
sources. A designated pollutant is ``any air pollutant, emissions of 
which are subject to a standard of performance for new stationary 
sources but for which air quality criteria have not been issued, and 
which is not included on a list published under section 108(a) or 
section 112(b)(1)(A) of the CAA.'' 40 CFR 60.21(a).
    Section 129(b) of the CAA also requires us to develop an EG for 
each category of existing solid waste incineration units. Under section 
129 of the CAA, the EG is not federally enforceable. Section 129(b)(2) 
requires states to submit State Plans to EPA for approval. State Plans 
must be at least as protective as the EG, and they become Federally 
enforceable upon EPA approval.
    The emission guidelines and compliance times for existing 
commercial and industrial solid waste incineration units that commenced 
construction on or before November 30, 1999, were promulgated December 
1, 2000 (65 FR 75338) at 40 CFR part 60, subparts CCCC and DDDD.
    The status of our approvals of State plans for designated 
facilities (often referred to as ``111(d) plans'' or ``111(d)/129 
plans'') is given in separate subparts in 40 CFR part 62, ``Approval 
and Promulgation of State Plans for Designated Facilities and 
Pollutants.'' The Federal plan requirements for existing solid waste 
incineration units are also codified in separate subparts at the end of 
part 62.
    Procedures and requirements for development and submission of state 
plans for controlling designated pollutants are given in 40 CFR part 
60, ``Standards of Performance for New Stationary Sources,'' subpart B, 
``Adoption and Submittal of State Plans for Designated Facilities'' and 
in 40 CFR part 62, subpart A, ``General Provisions.'' If a State does 
not have any existing sources of a designated pollutant located within 
its boundaries, 40 CFR 62.06 provides that the State may submit a 
letter of certification to that effect, or negative declaration, in 
lieu of a plan. The negative declaration exempts the State from the 
requirements of 40 CFR Part 60, subpart B, for that designated 
facility. In the event that a designated facility is located in a State 
after a negative declaration has been approved by EPA, 40 CFR 62.13 
requires that the Federal plan for the designated facility, as required 
by section 129 of the CAA and 40 CFR 62.02(g), will automatically apply 
to the facility.
    This Federal Register action approves a negative declaration for 
the following: existing commercial and industrial solid waste 
incineration units.

II. State Submittal

    The Albuquerque Environmental Health Department submitted a letter 
dated September 10, 2002, certifying that there are no existing 
commercial and industrial solid waste incinerators subject to 40 CFR 
part 62, subparts CCCC and DDDD, under its jurisdiction in the City of 
Albuquerque and Bernalillo County, New Mexico (excluding Tribal lands). 
This negative declaration meets the requirements of 40 CFR 62.06.

III. Final Action

    We are approving a negative declaration submitted by the City of 
Albuquerque Environmental Health Department certifying that there are 
no existing applicable commercial and industrial solid waste 
incineration units subject to 40 CFR part 60, subparts CCCC and DDDD, 
under its jurisdiction in the City of Albuquerque/Bernalillo County 
(excluding tribal lands).
    If a designated facility is later found within any noted 
jurisdiction after publication of this Federal Register action, then 
the overlooked facility will become subject to the requirements of the 
Federal plan for that designated facility, including the compliance 
schedule. The Federal plan will no longer apply if we subsequently 
receive and approve the 111(d)/129 plan from the jurisdiction with the 
overlooked facility.
    Since the City of Albuquerque has not submitted a demonstration of 
authority over ``Indian Country,'' (as defined in 18 U.S.C. 1151) we 
are limiting our approval to those areas that do not constitute Indian 
Country. Under this definition, EPA treats as reservations, trust lands 
validly set aside for the use of a Tribe even if the trust lands have 
not been formally designated as a reservation. Any existing designated 
facility that may exist on ``Indian Country'' is subject to the Federal 
plan for the designated facility. See 40 CFR 62.13.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial action and anticipates no 
adverse comments. 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 these rules should relevant 
adverse comments be filed. This action will be effective March 11, 2005 
unless EPA receives adverse written comments by February 9, 2005.
    If EPA receives such comments, then it will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. All public comments received 
will then be addressed in a subsequent direct final rule based on the 
proposed rule. The EPA will not institute a second comment period. 
Parties interested in commenting should do so at this time. If no such 
comments are received, the public is advised that this rule will be 
effective on March 11, 2005 and no further action will be taken on the 
proposed rule.

IV. Statutory and Executive Order Reviews

    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 and local declarations that rules implementing 
certain federal standards are unnecessary. 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 state and local declarations that rules implementing certain 
federal standards are unnecessary, 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

[[Page 1670]]

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 state and local declarations that rules 
implementing certain federal standards are unnecessary, 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 State 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 State plan submission for failure to use VCS. It would 
thus be inconsistent with applicable law for EPA, when it reviews a 
State plan submission, to use VCS in place of a State 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.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 11, 2005. Filing a petition for 
reconsideration by the Administrator of this direct 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 may not be challenged later in proceedings to 
enforce its requirements (See 42 U.S.C. 7607(b)(2)).

List of Subjects in 40 CFR Part 62

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

    Dated: December 21, 2004.
Richard E. Greene,
Regional Administrator, Region 6.

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 et seq.

Subpart GG--New Mexico

0
2. Subpart GG is amended by adding a new undesignated center heading 
and a new Sec.  62.7881 to read as follows:

Emissions From Existing Commercial and Industrial Solid Waste 
Incineration (CISWI) Units


Sec.  62.7881  Identification of sources--negative declaration.

    Letter from the City of Albuquerque Air Pollution Control Division 
dated September 10, 2002, certifying that there are no existing 
commercial and industrial solid waste incinerators subject to 40 CFR 
part 60, subparts CCCC and DDDD under its jurisdiction in Bernalillo 
County on lands under the jurisdiction of the Albuquerque/Bernalillo 
County Air Quality Control Board.

[FR Doc. 05-342 Filed 1-7-05; 8:45 am]
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