SUPPLEMENTARY INFORMATION:

I. Background

Sections 111(d) and 129 of the CAA require submittal of state plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established by EPA under section 111(b) for new sources of the same source category and the EPA has established emission guidelines for such existing sources. When designated facilities are located in a state, the state must then develop and ( printed page 20277) submit a plan for the control of the designated pollutant. 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 from designated facilities under sections 111(d) and 129 of the CAA. Also, Subpart A of 40 CFR part 62 provides the procedural framework for the submission of these plans.

If a state fails to submit a satisfactory plan, the CAA provides the EPA the authority to prescribe a plan for regulating the designated pollutants at the designated facilities. The EPA prescribed plan, also known as a federal plan, is often delegated to states with designated facilities but no EPA approved state-specific plan. If no such designated facilities exist within a state's jurisdiction, a state may submit to the EPA a letter of certification to that effect (referred to as a negative declaration) in lieu of a state plan to satisfy the state's obligation. 40 CFR 60.23(b) and 62.06. A negative declaration exempts the state from the requirement to submit a CAA section 111(d)/section 129 plan for that designated pollutant and source category. 40 CFR 60.23(b).

II. Commercial and Industrial Solid Waste Incinerators

On December 1, 2000 (60 FR 75338), the EPA promulgated new source performance standards for new CISWI units, 40 CFR part 60, subpart CCCC, and emission guidelines for existing CISWI units, 40 CFR part 60, subpart DDDD. After a series of legal challenges, amendments, and reconsiderations, the EPA promulgated the Reconsideration and Final Amendments for CISWI units on February 7, 2013 (78 FR 9112) (providing final standards for new and existing sources). A CISWI unit is any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding six months, any solid waste, as that term is defined in 40 CFR part 241, Solid Wastes Used as Fuels or Ingredients in Combustion Units. 40 CFR 60.2875. A state plan must address all existing CISWI units that commenced construction on or before June 4, 2010, or for which modification or reconstruction was commenced on or before August 7, 2013, with limited exceptions as provided in 40 CFR 60.2555. See 40 CFR 60.2550.

As discussed previously, if there are no designated facilities in the state, the state may submit a negative declaration in lieu of a state plan. The EPA will provide public notice of receipt of a state's negative declaration with respect to CISWI. See 40 CFR 60.2530. If any subsequently identified existing CISWI unit is found in a state that had submitted a negative declaration, the Federal plan implementing the emission guidelines for subpart DDDD would automatically apply to that CISWI unit until a state plan is approved. See 40 CFR 60.2530.

III. State Submittals and EPA Analysis

The State of Delaware, through the Department of Natural Resources & Environmental Control (DNREC), the District of Columbia District through the Department of Energy & Environment (DDOEE), and the City of Philadelphia through the Department of Public Health, Air Management Services in the Commonwealth of Pennsylvania (Philadelphia AMS) have determined that there are no CISWI units subject to CAA 111(d)/129 requirements in their respective jurisdictional boundaries. Accordingly, each state and local agency has submitted to EPA a negative declaration letter certifying this fact. DNREC submitted a negative declaration letter to EPA on January 7, 2014. DDOEE submitted a negative declaration letter to EPA on November 8, 2013. Philadelphia AMS submitted a negative declaration letter to EPA on March 4, 2015. A typographical error in the letter was noted and clarified by Philadelphia AMS in an email on February 4, 2016. These negative declaration letters and a copy of the February 4, 2016 email are in the docket for this action and are available online at https://www.regulations.gov. A description of the states' submittals and EPA's rationale for the approval is also set forth in a technical support document for this action. Supporting documentation, including the technical support document, for this action is available in the docket for this rulemaking and available online at https://www.regulations.gov.

IV. Final Action

In this direct final action, EPA is amending 40 CFR part 62 to reflect the receipt of negative declaration letters from the noted state and local agencies. EPA accepts these negative declarations as meeting the requirements in paragraph 40 CFR 60.23(b). Amendments are being made to 40 CFR part 62, subparts I (Delaware), J (District of Columbia), and NN (Pennsylvania). With respect to subpart NN, this action is only applicable to the City of Philadelphia air pollution control agency's jurisdiction; it does not include the remaining geographical areas in the Commonwealth of Pennsylvania. EPA is providing notice of receipt of these negative declarations.

After publication of this Federal Register action, if a designated facility ( i.e., existing CISWI unit) is later found within any of the three noted jurisdictions, then the overlooked facility will become subject to the requirements of the federal plan for CISWI units for that designated facility, including the compliance schedule, when promulgated by EPA. See 40 CFR 60.2530. The federal plan would no longer apply if EPA subsequently receives and approves a section 111(d)/129 plan from the jurisdiction with the overlooked CISWI facility.

EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. 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 action if adverse comments are filed. This rule will be effective on June 30, 2017 without further notice unless EPA receives adverse comment by May 31, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

V. 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 notifies the public of EPA receipt of negative declarations from air pollution control agencies without any existing CISWI units within their jurisdictional boundaries. This action imposes no requirements. Accordingly, EPA 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 action does not impose any additional enforceable duty beyond that required by state law, it does not contain any ( printed page 20278) unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action 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 the negative declarations for existing CISWI units from DNREC, DDOEE and Philadelphia AMS. The action does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action 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. This action does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

With regard to negative declarations for designated facilities received by EPA from states, EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. This action 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 action 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).

C. Petitions for Judicial Review

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 June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action approving negative declarations for existing CISWI units from DNREC, DDOEE and Philadelphia AMS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 62 is amended as follows:

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

Authority: 42 U.S.C. 7401 et seq.

2. Revise § 62.1985 to read as follows:

3. Revise § 62.2155 to read as follows:

4. Revise § 62.9670 to read as follows: