[Federal Register Volume 70, Number 42 (Friday, March 4, 2005)]
[Rules and Regulations]
[Pages 10490-10493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4271]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[R03-OAR-2005-PA-0001; FRL-7880-4]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, Commonwealth of Pennsylvania; 
Delegation of Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving delegation of the Federal plan for commercial 
and industrial solid waste incinerator (CISWI) units to both the 
Pennsylvania Department of Environmental Protection (PADEP) and the 
Allegheny County Health Department (ACHD). The Federal plan establishes 
maximum achievable control technology (MACT) emission limits, 
monitoring, operating, and recordkeeping requirements for CISWI units 
for which construction commenced on or before November 30, 1999. PADEP 
and the ACHD representatives have signed separate, but similar, 
Memorandum of Agreements (MOA) which act as the mechanism for the 
transfer of EPA authority to the respective air pollution control 
agencies. The MOA defines policies, responsibilities, and procedures by 
which the Federal plan will be administered by the PADEP, and the ACHD 
on behalf of EPA.

DATES: This rule is effective May 3, 2005, without further notice, 
unless EPA receives adverse written comment by April 4, 2005. 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: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-PA-0001 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://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: http://[email protected].
    D. Mail: R03-OAR-2005-PA-0001, Walter Wilkie, Chief, Air Quality 
Analysis, Mailcode 3AP22, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to RME ID No. R03-OAR-2005-PA-
0001. 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://www.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 
consider to be CBI or otherwise protected through RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an 
``anonymous access'' system, 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 
RME index at http://www.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

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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 during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the PADEP 
submittal are available at the Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, 
Harrisburg, Pennsylvania 17105. Copies of the ACHD submittal are 
available at the Allegheny County Health Department, 3333 Forbes 
Avenue, Pittsburgh, Pennsylvania 15213.

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 Clean Air Act (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 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 Act, but emissions of 
which are subject to a standard of performance for new stationary 
sources. Also, section 129 of the Act, also requires EPA to promulgate 
EG for solid waste combustion 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 
new source performance standards and EG for CISWI units, 40 CFR part 
60, subparts CCCC and DDDD, respectively. The designated facility to 
which the EG apply is each existing CISWI unit, as stipulated in 
subpart DDDD, that commenced construction on or before November 30, 
1999. See, 40 CFR 60.2550 for details. State plan requirements must be 
``at least as protective'' as the EG, and federally-enforceable upon 
approval by EPA. The procedures for adoption and submittal of State 
plans are codified in 40 CFR part 60, subpart B. For states that fail 
to submit a plan, EPA is required to develop and implement a Federal 
plan within two years following promulgation of the EG. EPA 
implementation and enforcement of the Federal plan is viewed as an 
interim measure until States assume their role as the preferred 
implementers of the EG requirements stipulated in the Federal plan. 
Accordingly, EPA encourages States to either use the Federal plan as a 
template to reduce the effort needed to develop their own plan, or to 
simply request delegation of the Federal plan, as the PADEP and the 
ACHD have done.

II. Submittal and Review of Requests for Delegation by the Federal Plan

    A. PADEP--On April 16, 2004, the PADEP requested delegation of 
authority from EPA to implement and enforce the Federal plan for 
existing CISWI units, codified at 40 CFR part 62, subpart III. The 
scope of the request includes all affected facilities within the 
geographical area of the Commonwealth of Pennsylvania, except Allegheny 
and Philadelphia counties. The ACHD has submitted a separate delegation 
request to EPA, as noted above, and the City of Philadelphia has 
submitted a negative declaration that no CISWI units exist within the 
City of Philadelphia.
    Under EPA's Delegation Manual, item 7-139, the Regional 
Administrator is authorized to delegate implementation and enforcement 
of section 111(d)/129 Federal plans to State air pollution control 
agencies. The requirements and limitations of a delegation agreement 
are defined in item 7-139. Consistent with the requirements of the 
Delegation Manual, on October 14, 2004, EPA prepared and signed a MOA 
between the EPA and the PADEP that defines policies, responsibilities, 
and procedures pursuant to the Federal plan and the related 40 CFR 60 
Subpart DDDD (Emission Guidelines), by which the Federal plan will be 
administered by both agencies. Subsequently, on November 24, 2004, 
Kathleen A. McGinty, Secretary, PADEP, signed the MOA, thus agreeing to 
the terms and conditions of the MOA and accepting responsibility for 
implementation and enforcement of the policies and procedures of the 
Federal plan, except for certain authorities (e.g., extension of the 
final compliance date and major revisions to source test methods) 
retained by EPA.
    B. ACHD--On April 21, 2004, the ACHD requested delegation of 
authority from EPA to implement and enforce the Federal plan for 
existing CISWI units. As noted above, the scope of the request includes 
only the geographical area of Allegheny County.
    Consistent with the requirements of the Delegation Manual, on 
October 14, 2004, EPA prepared and signed a MOA between the EPA and the 
ACHD that defines policies, responsibilities, and procedures pursuant 
to the Federal plan and related EG. Subsequently, on October 19, 2004, 
Dr. Bruce W. Dixon, Director, ACHD, signed the MOA, thus agreeing to 
the terms and conditions of the MOA and accepting responsibility for 
implementation and enforcement of the policies and procedures of the 
Federal plan, except for certain authorities (e.g., extension of the 
final compliance date and major revisions to source test methods) 
retained by EPA.

III. Final Action

    Pursuant to EPA's Delegation Manual and the Federal plan preamble, 
section VI, Implementation of the Federal Plan and Delegation, EPA is 
approving the requests of the PADEP and the ACHD for delegation of 
authority to implement and enforce the Federal plan and to adhere to 
the terms and conditions of the respective MOAs. While both the PADEP 
and the ACHD are delegated the authority to implement and enforce the 
Federal plan in their respective air pollution control jurisdictions, 
nothing in the delegation agreements shall prohibit EPA from enforcing 
sections 111(d) and 129 requirements of the Act or the Federal plan for 
CISWI units.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects an already existing 
Federal requirement for state air pollution control agencies and 
existing CISWI units that are subject to the provisions of 40 CFR part 
60, subparts B and 40 CFR part 62, subpart III, respectively. 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 plan should relevant adverse or critical 
comments be filed. This rule will be effective May 3, 2005, without 
further notice unless the Agency receives relevant adverse comments by 
April 4, 2005. If EPA receives adverse comments, EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule did not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The 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

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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.

IV. 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 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 (Public Law 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 state requests for 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 plan delegation request 
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 section 
111(d)/129 Federal plan delegation request for failure to use VCS. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a section 111(d)/129 Federal plan delegation request, 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 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, 2005. 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 PADEP and ACHD requests for 
delegation of the Federal plan for CISWI 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, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: February 17, 2005.
Richard Kampf,
Acting Regional Administrator, Region III.

0
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. A new center heading, after Sec.  62.9670, consisting of Sec. Sec.  
62.9675, 62.9676, 62.9677; and 62.9680, 62.9681, and 62.9682 is added 
to read as follows:
EMISSIONS FROM EXISTING COMMERCIAL INDUSTRIAL SOLID WASTE INCINERATORS 
(CISWI) UNITS--SECTION 111(d)/129 FEDERAL PLAN DELEGATIONS


Sec.  62.9675  Identification of plan--delegation of authority.

    On October 14, 2004, EPA signed a Memoranda of Agreement (MOA) that 
defines policies, responsibilities, and procedures pursuant to 40 CFR 
part 62, Subpart III (the ``Federal plan'') by which the Federal plan 
will be administered by the PADEP on behalf of EPA.


Sec.  62.9676  Identification of sources.

    The MOA and related Federal plan apply to all affected CISWI units 
for which construction commenced on or before November 30, 1999.


Sec.  62.9677  Effective date of delegation.

    The delegation became fully effective on November 24, 2004 the date 
the MOA was signed by the PADEP Secretary.


Sec.  62.9680  Identification of plan--delegation of authority.

    On October 14, 2004, EPA signed a Memoranda of Agreement (MOA) that 
defines policies, responsibilities, and procedures pursuant to 40 CFR 
part 62, Subpart III (the ``Federal plan'') by which the Federal plan 
will be administered by the Allegheny County

[[Page 10493]]

Health Department (ACHD) on behalf of EPA.


Sec.  62.9681  Identification of sources.

    The MOA and related Federal plan apply to all affected CISWI units 
for which construction commenced on or before November 30, 1999.


Sec.  62.9682  Effective date of delegation.

    The delegation became fully effective on October 19, 2004 the date 
the MOA was signed by the ACHD Director.

[FR Doc. 05-4271 Filed 3-3-05; 8:45 am]
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