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Rule

Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; Control of Emissions From Existing Hospital/Medical/Infectious Waste Incinerator Units; Control of Emissions From Existing Large Municipal Waste Combustors; Nevada; American Samoa; Northern Mariana Islands

Action

Direct Final Rule.

Summary

EPA is taking direct final action to approve negative declarations submitted by American Samoa, Northern Mariana Islands, and Nevada. The negative declarations from American Samoa and Northern Mariana Islands certify that large municipal waste combustors, subject to the requirements of sections 111(d) and 129 of the Clean Air Act, do not exist within the air pollution control jurisdiction of these agencies. The negative declaration from Nevada certifies that there are no existing hospital/medical/infectious waste incinerator units within the Nevada Division of Environmental Protection's air pollution control jurisdiction.

 

Table of Contents Back to Top

DATES: Back to Top

This rule is effective on December 9, 2003 without further notice, unless EPA receives adverse comments by November 10, 2003. If we receive such comment, we will publish a timely withdrawal in the Federal Register to notify the public that this rule will not take effect.

ADDRESSES: Back to Top

Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901, or e-mail to steckel.andrew@epa.gov, or submit comments at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Back to Top

Mae Wang, EPA Region IX, (415) 947-4124, wang.mae@epa.gov.

SUPPLEMENTARY INFORMATION: Back to Top

I. Background Back to Top

Sections 111(d) and 129 of the Clean Air Act (CAA or 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 CAA, but emissions of which are subject to a standard of performance for new stationary sources. However, section 129 of the CAA also requires EPA to promulgate EG for hospital/medical/infectious waste incinerator units (HMIWIs) and large municipal waste combustors (MWCs) that emit a mixture of air pollutants. These pollutants include particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans. The EG for HMIWI were published in final form on September 15, 1997 (62 FR 48348), and are located at 40 CFR part 60, subpart Ce. The EG for large MWC were promulgated on December 19, 1995, and are located at 40 CFR part 60, subpart Cb (see 60 FR 65387). On August 25, 1997, EPA amended subpart Cb to apply only to MWC units with an individual capacity to combust more than 250 tpd of MSW (see 62 FR 45116).

Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of State plans for controlling designated pollutants. Also, 40 CFR part 62 provides the procedural framework for the submission of these plans. When designated facilities are located in a State, the State must then develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the State, the State may submit a letter of certification to that effect (i.e., negative declaration) in lieu of a plan. The negative declaration exempts the State from the requirements of subpart B for the submittal of a 111(d)/129 plan.

II. Final EPA Action Back to Top

The Nevada Division of Environmental Protection has determined that there are no designated facilities subject to the HMIWI EG requirements in its air pollution control jurisdiction. The American Samoa Environmental Protection Agency and the Commonwealth of the Northern Mariana Islands Division of Environmental Quality have determined that there are no designated facilities subject to the large MWC EG requirements in their respective air pollution control jurisdictions. Accordingly, each air pollution control agency has submitted to EPA a negative declaration letter certifying this fact. EPA is amending part 62 to reflect the receipt of these negative declaration letters from the noted air pollution control agencies. The submittal dates of these letters are listed in the following table:

Air pollution control agency Date of negative declaration
Nevada DEP (HMIWI) May 26, 1998.
American Samoa (large MWC) Jan. 20, 1998.
Northern Mariana Islands (large MWC) Jan. 27, 1998.

After publication of this Federal Register notice, if a large MWC or HMIWI facility is later found within these jurisdictions, then the overlooked facility will become subject to the requirements of the appropriate Federal 111(d)/129 plan, contained in 40 CFR part 62. The Federal plan would no longer apply if EPA subsequently were to receive and approve a 111(d)/129 plan from the jurisdiction with the overlooked facility.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects already existing Federal requirements for State air pollution control agencies under 40 CFR parts 60 and 62. In the Proposed Rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve each negative declaration should relevant adverse or critical comments be filed.

This rule will be effective December 9, 2003 without further notice unless the Agency receives relevant adverse comments by November 10, 2003. If EPA receives such comments, then EPA will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. 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 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, then EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews Back to Top

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 certifications 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 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 State certifications 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 111(d)/129 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 111(d)/129 plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 plan submission, 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 December 9, 2003. 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 section 111(d)/129 negative declarations submitted by the air pollution control agencies in Nevada, American Samoa, and Northern Mariana Islands may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 62 Back to Top

Dated: September 25, 2003.

Deborah Jordan,

Acting Regional Administrator, Region IX.

begin regulatory text

Part 62, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

PART 62—[AMENDED] Back to Top

1.The authority citation for part 62 continues to read as follows:

Authority:

42 U.S.C. 7401-7671q.

Subpart DD—Nevada Back to Top

2.Subpart DD is amended by adding an undesignated center heading and § 62.7135 to read as follows:

Emissions From Existing Hospital/Medical/Infectious Waste Incinerators Back to Top

§ 62.7135 Identification of plan—negative declaration.

Letter from the Nevada Division of Environmental Protection, submitted on May 26, 1998, certifying that there are no existing hospital/medical/infectious waste incineration units subject to 40 CFR part 60, subpart Ce, of this chapter.

3.Part 62 is amended by adding Subpart AAA to read as follows:

Subpart AAA—American Samoa Back to Top

Emissions From Existing Municipal Waste Combustors With the Capacity To Burn Greater Than 250 Tons per Day of Municipal Solid Waste Back to Top

§ 62.12900 Identification of plan—negative declaration.

Letter from the American Samoa Environmental Protection Agency, submitted on January 20, 1998, certifying that there are no municipal waste combustion units subject to part 60, subpart Cb, of this chapter.

4.Part 62 is amended by adding Subpart DDD to read as follows:

Subpart DDD—Northern Mariana Islands Back to Top

Emissions From Existing Municipal Waste Combustors With the Capacity To Burn Greater Than 250 Tons per Day of Municipal Solid Waste Back to Top

§ 62.13600 Identification of plan—negative declaration.

Letter from the Commonwealth of the Northern Mariana Islands Division of Environmental Quality, submitted on January 27, 1998, certifying that there are no municipal waste combustion units subject to part 60, subpart Cb, of this chapter.

end regulatory text

[FR Doc. 03-25802 Filed 10-9-03; 8:45 am]

BILLING CODE 6560-50-P

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