[Federal Register: August 11, 2005 (Volume 70, Number 154)]
[Rules and Regulations]
[Page 46773-46776]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au05-17]
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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: wilkie.walter@epa.gov.
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 topsale.jim@epa.gov.
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
[[Page 46776]]
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
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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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