[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Rules and Regulations]
[Pages 57762-57764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19878]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[R06-OAR-2004-NM-0002; FRL-7979-3]


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 three negative declarations submitted by the 
City of Albuquerque (Bernalillo County) certifying that there are no 
existing sources subject to the requirement of sections 111(d) and 129 
of the Clean Air Act under their jurisdiction. These three negative 
declarations are for Sulfuric Acid Mist Emissions from Sulfuric Acid 
Plants, Fluoride Emissions from Phosphate Fertilizer Plants, and Total 
Reduced Sulfur Emissions from Kraft Pulp Mills. This is a direct final 
rule action without prior notice and comment because this action is 
deemed noncontroversial.

DATES: This direct final rule is effective on December 5, 2005 without 
further notice, unless EPA receives adverse comment by November 3, 
2005. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) Docket ID No. R06-OAR-2004-NM-0002. 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 a.m. and 4:30 p.m. 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 75202.
    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.

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 the 
control of certain designated pollutants which includes these 
categories addressed in today's action: sulfuric acid mist emissions 
from sulfuric acid plants, fluoride emissions from phosphate fertilizer 
plants and total reduced sulfur emissions from kraft pulp mills. 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 the 
control of certain designated pollutants. 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 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 the control of certain 
designated pollutants 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 negative declarations 
submitted by the City of Albuquerque (Bernalillo County), New Mexico 
for the following: sulfuric acid mist emissions from sulfuric acid 
plants, fluoride emissions from phosphate fertilizer plants and total 
reduced sulfur emissions from kraft pulp mills.

II. State Submittal

    The Albuquerque Environmental Health Department submitted letters 
dated November 23, 2004, certifying that there are no existing sulfuric 
acid mist emissions from sulfuric acid plants, no existing fluoride 
emissions from phosphate fertilizer plants and no existing total 
reduced sulfur emissions from kraft pulp mills, under its

[[Page 57763]]

jurisdiction in the City of Albuquerque and Bernalillo County, New 
Mexico (excluding tribal lands). These negative declarations meet the 
requirements of 40 CFR 62.06.

III. Removal of 40 CFR 62.7881

    We are removing the 40 CFR 62.7881, ``Identification of sources--
negative declaration'' and the centered heading ``Emissions From 
Existing Commercial and Industrial Solid Waste Incineration Units'' 
immediately before Sec.  62.7881, because this is a duplicate of the 
negative declaration in Sec. 62.7890(b).
    The EPA published in the Federal Register on January 10, 2005 (70 
FR 1668), a document approving a negative declaration submitted by the 
City of Albuquerque (Bernalillo County), New Mexico, which certified 
that there are no existing commercial and industrial solid waste 
incineration units in Bernalillo County. The January 10, 2005, Federal 
Register action added a new undesignated center heading ``Emissions 
From Existing Commercial and Industrial Solid Waste Incineration 
(CISWI) Units'' followed by a new Sec.  62.7881, ``Identification of 
sources--negative declaration.'' We later discovered that there was 
already a centered heading in Subpart GG entitled ``Emissions From 
Existing Commercial and Industrial Solid Waste Incineration (CISWI) 
Units'' that had been added when we approved the CISWI negative 
declaration for the State of New Mexico in Sec.  62.7890 on June 13, 
2003 (68 FR 35299). On June 27, 2005 (70 FR 36849) we partially 
corrected the error by revising Sec.  62.7890 to include the Bernalillo 
County CISWI negative declaration codified in Sec.  62.7881. However 
the June 27, 2005, correction failed to remove Sec.  62.7881 and the 
centered heading immediately before it. This Federal Register action 
corrects this oversight by removing Sec.  62.7881 and the centered 
heading ``Emissions From Existing Commercial and Industrial Solid Waste 
Incineration (CISWI) Units'' immediately before Sec.  62.7881.

IV. Final Action

    We are approving negative declarations submitted by the City of 
Albuquerque Environmental Health Department certifying that there are 
no existing sulfuric acid mist emissions from sulfuric acid plants, no 
existing fluoride emissions from phosphate fertilizer plants, and no 
existing total reduced sulfur emissions from kraft pulp mills, 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 December 5, 
2005 unless EPA receives adverse written comments by November 3, 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 December 5, 2005 and no further action will be taken on 
the proposed rule.

V. 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 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

[[Page 57764]]

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 December 5, 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: September 19, 2005
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR 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 GG--New Mexico

0
2. Section 62.7851 is amended by adding a new paragraph (b) at the end 
to read as follows.


Sec.  62.7851  Identification of sources.

* * * * *
    (b) Negative declaration for Bernalillo County.
    Letter from the City of Albuquerque Air Pollution Control Division 
dated November 23, 2004, certifying that there are no existing sulfuric 
acid plants subject to 40 CFR 60 subpart Cd in Bernalillo County on 
lands under the jurisdiction of the Albuquerque/Bernalillo County Air 
Quality Control Board.
0
3. Section 62.7853 is revised to read as follows:


Sec.  62.7853  Identification of plan--negative declaration.

    (a) Letter from the New Mexico Environmental Improvement Division 
dated November 5, 1979 certifying that there are no existing kraft pulp 
mills in the State subject to part 60 subpart B of this chapter.
    (b) Letters from the City of Albuquerque Air Pollution Control 
Division dated July 8, 1980, and November 23, 2004, certifying that 
there are no existing kraft pulp mills subject to 40 CFR 60 subpart B 
in Bernalillo County on lands under the jurisdiction of the 
Albuquerque/Bernalillo County Air Quality Control Board.

0
4. Section 62.7854 is amended by redesignating the existing paragraph 
as paragraph (a) and adding a new paragraph (b) to read as follows:


Sec.  62.7854  Identification of plan--negative declaration.

    (a) The State Department of Health and Social Services submitted on 
October 31, 1977, a letter certifying that there are no existing 
phosphate fertilizer plants in the State subject to part 60 subpart B 
of this chapter.
    (b) Letter from the City of Albuquerque Air Pollution Control 
Division dated November 23, 2004, certifying that there are no 
phosphate fertilizer plants subject to 40 CFR 60 subpart B in 
Bernalillo County on lands under the jurisdiction of the Albuquerque/
Bernalillo County Air Quality Control Board.


Sec.  62.7881  [Removed]

0
5. Section 62.7881, ``Identification of sources--negative declaration'' 
is removed and the centered heading ``Emissions From Existing 
Commercial and Industrial Solid Waste Incineration (CISWI) Units'' 
immediately before Sec.  62.7881 is also removed.

[FR Doc. 05-19878 Filed 10-3-05; 8:45 am]
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