[Federal Register Volume 70, Number 154 (Thursday, August 11, 2005)]
[Rules and Regulations]
[Pages 46773-46776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15920]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[RO3-OAR-2005-MD-0007; FRL-7951-3]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, Maryland; Control of Emissions 
From Small Municipal Waste Combustor (SMWC) Units; Delegation of 
Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the Maryland 
Department of the Environment's (MDE) request for delegation of 
authority to implement and enforce the Federal plan (68 FR 5144, 
January 31, 2003) for small municipal waste combustor (SMWC) units 
under sections 111(d) and 129 of the Clean Air Act (the ``Act''). The 
plan establishes emissions limits, compliance schedules, monitoring, 
operating, and recordkeeping requirements for existing SMWC units for 
which construction commenced on or before August 30,

[[Page 46774]]

1999. The request for delegation was submitted to EPA on March 28, 
2005. EPA and the MDE signed a Memorandum of Agreement (MOA) which is 
the mechanism for the transfer of authority from EPA to the MDE. The 
MOA defines policies, responsibilities, and procedures pursuant to 40 
CFR 62 subpart JJJ (the ``Federal plan'') and 40 CFR 60 subpart BBBB 
(Emission Guidelines), by which the Federal plan will be administered 
by both the EPA and the MDE.

DATES: This rule is effective October 11, 2005 without further notice, 
unless EPA receives adverse written comment by September 12, 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 RO3-OAR-2005-MD-0007 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: [email protected].
    D. Mail: RO3-OAR-2005-MD-0007, Walter Wilkie, Chief, Air Quality 
Analysis Branch, 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. RO3-OAR-2005-MD-
0007. 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 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 State submittal 
are available at the Maryland Department of the Environment, 1800 
Washington Boulevard, Baltimore, Maryland 21130.

FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In 1997, the United States Court of Appeals for the District of 
Columbia Circuit vacated the initial MWC unit rules, subparts Cb and Eb 
as they apply to MWC units with a capacity to combust less than or 
equal to 250 tons per day (TPD) of municipal solid waste (MSW). As a 
result, subparts Cb and Eb were amended to apply only to MWC units with 
the capacity to combust more than 250 TPD of MSW per unit (i.e., large 
MWC units). In response to the court's decision, on December 6, 2000, 
EPA promulgated new source performance standards (NSPS) applicable to 
new small MWC units (i.e., capacities of 35 to 250 TPD) and EG 
applicable to existing (i.e., construction commenced on or before 
August 30, 1999) small MWC units. The NSPS and EG are codified at 40 
CFR part 60, subparts AAAA and BBBB, respectively. See 65 FR 76350 and 
76378. The SMWC rule regulates the following air pollutants: 
Particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides 
of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and 
dibenzofurans.
    Under sections 111 and 129 of the Act, EG are not Federally 
enforceable. However, section 129(b)(2) of the Act requires States to 
submit to EPA for approval State plans that implement and enforce the 
EG. State plans must be at least as protective as the EG, and become 
federally enforceable upon approval by EPA. The procedures for adoption 
and submittal of State plans are codified in 40 CFR part 60, subpart B.
    As required by Section 129(b)(3) of the Act, on January 31, 2003 
EPA promulgated a Federal plan (FP) for small MWCs that commenced 
construction on or before August 30, 1999. The FP is a set of maximum 
available control technology (MACT) requirements that implement the EG. 
It is applicable to those small existing MWC units not specifically 
covered by an approved State plan under sections 111(d) and 129 of the 
CAA. In addition, it fills a Federal enforceability gap until State 
plans are approved and ensures that the MWC units stay on track to 
complete, in an expeditious manner, pollution control equipment 
retrofits in order to meet the final compliance dates on or before of 
May 6, 2005, and November 6, 2005 for Class II and I units, 
respectively. On February 24, 2004, the U.S. Court of Appeals for the 
District of Columbia in the case of Northeast Maryland Waste Disposal 
Authority v. EPA, D.C. Cir., No. 01-1053, agreed with petitioners, 
including Earthjustice. In summary, EPA must show evidence that the 
emissions limits in its SMWC rule reflect the performance of the best 
performing units, as required by the Act, and explain its decision to 
subcategorize SMWC units according to aggregate capacities of the 
plants at which they are located. Without vacating the rule, the court 
remanded the rule back to EPA, and thus let stand the FP final 
compliance dates.

II. Submittal and Review of Request for Delegation by the MDE

    On March 28, 2005, the MDE requested delegation of authority from

[[Page 46775]]

EPA to implement and enforce the FP for existing small MWC units, 
codified at 40 CFR part 62, subpart JJJ. The scope of the request 
includes all of the geographical area of Maryland.
    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. On May 12, 2005, EPA signed a MOA between 
the EPA and the MDE that defines policies, responsibilities, and 
procedures pursuant to 40 CFR 62 subpart JJJ (the ``Federal plan'') and 
40 CFR 60 subpart BBBB (Emission Guidelines), by which the FP plan will 
be administered by both agencies. Subsequently, on May 25, 2005, Kendl 
P. Philbrick, Secretary, MDE, signed the MOA, thus agreeing to its 
terms and conditions, and accepting responsibility for implementation 
and enforcement of the policies and procedures of the FP.

III. Final Action

    Pursuant to EPA's Delegation Manual and the FP preamble, section V, 
Implementation of the Federal Plan and Delegation, EPA is approving 
MDE's request for delegation of authority to implement and enforce the 
FP and to adhere to the terms and conditions of the subject MOA. The 
purpose of this delegation is to acknowledge MDE's ability to implement 
a program and to transfer primary implementation and enforcement 
responsibility from EPA to the MDE for existing small MWC units. While 
MDE is delegated the authority to implement and enforce the FP, nothing 
in the delegation agreement shall prohibit EPA from enforcing sections 
111(d) and 129 requirements of the Act or the FP for small MWC units.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. The delegation imposes no additional requirements on 
the one known affected facility. This action simply reflects an already 
existing Federal requirement for State air pollution control agencies 
and existing small MWC units that are subject to the provisions of 40 
CFR part 60, subpart BBBB, and 40 CFR part 62, subpart JJJ. Under the 
provisions of the MOA, both EPA and MDE are obligated to revise the 
delegation agreement as a result of any Federal regulatory changes. 
Accordingly, any EPA response to the court remand, which requires 
revision of the EG requirements, will also be incorporated into the 
MOA. 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 delegation should 
relevant adverse or critical comments be filed. This rule will be 
effective October 11, 2005 without further notice unless the Agency 
receives relevant adverse comments by September 12, 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.

IV. Administrative Requirements

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 (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 request 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 plan related submission for failure to use VCS. It would 
thus be inconsistent with applicable law for EPA, when it reviews a 
section 111(d)/129 plan related submission, to use VCS in place of a 
section 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 October 11, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does

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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 MDE's request for delegation 
of the Federal plan 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, 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: August 5, 2005.
Donald S. Welsh,
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 V--Maryland

0
2. A new center heading, after Sec.  62.5112, Sec. Sec.  62.5120, 
62.5121, and 62.5122 are added to read as follows:

Emissions From Existing Small Municipal Waste Combustor (MWC) Units--
Section 111(d)/129 Federal Plan Delegation


Sec.  62.5120  Identification of plan--delegation of authority.

    On May 12, 2005, EPA signed a Memorandum of Agreement (MOA) that 
defines policies, responsibilities, and procedures pursuant to 40 CFR 
62 subpart JJJ (the ``Federal plan'') by which it will be administered 
by the MDE for existing small MWC units. On May 25, 2005, the MDE 
Secretary signed the MOA, thus agreeing to its terms and conditions.


Sec.  62.5121  Identification of sources.

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


Sec.  62.5122  Effective date of delegation.

    The delegation became fully effective on May 25, 2005, the date the 
MOA was signed by the MDE Secretary.
[FR Doc. 05-15920 Filed 8-10-05; 8:45 am]
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