[Federal Register Volume 67, Number 189 (Monday, September 30, 2002)]
[Rules and Regulations]
[Pages 61270-61272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24767]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[OH153-1a; FRL-7386-9]
Approval and Promulgation of State Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving a negative declaration submitted by the
State of Ohio which indicates that the State does not need regulations
covering existing Small Municipal Waste Combustors (MWC) units. Ohio
submitted its negative declaration regarding this category of sources
in a letter dated June 25, 2002. The declaration was based on a
systematic search of the State's internal databases and follow-up
discussions with local air offices, which resulted in the determination
that there are no affected small MWC units in Ohio.
DATES: This direct final rule is effective on November 29, 2002,
without further notice unless EPA receives adverse written comments by
October 30, 2002. If adverse comment is received, EPA will publish a
timely withdrawal of this direct final rule in the Federal Register and
inform the public that the rule will not take effect.
ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
A copy of the negative declaration is available for inspection at
the U.S. Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (Please
telephone John Paskevicz at (312) 886-6084 before visiting the Region 5
Office.)
FOR FURTHER INFORMATION CONTACT: John Paskevicz, Environmental
Engineer, Regulation Development Section, Air Programs Branch (AR-18J),
EPA, Region 5, Chicago, Illinois 60604, (312) 886-6084.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used we mean EPA.
Table of Contents
I. What is the background for this action?
II. Negative declarations and their justification.
III. EPA review of Ohio's negative declaration.
IV. Administrative Requirements
I. What Is the Background for This Action?
On December 6, 2000, the EPA finalized a rule for small MWC units.
EPA promulgated this rule based on sections 111(d) and 129 of the Clean
Air Act (Act) Amendments of 1990. The federal rule includes emission
guidelines for existing units and standards of performance for new,
modified or reconstructed sources. EPA published the rule for existing
small MWC units in the Federal Register on December 6, 2000, (65 FR
76378), to be codified at 40 CFR part 60, subpart BBBB (Emission
Guidelines for Small Municipal Waste Combustion Units.) EPA published
rules for new, modified and reconstructed small MWC units in the
Federal Register on December 6, 2000, (65 FR 76350), to be codified at
40 CFR part 60, subpart AAAA (New Source Performance Standards for New
Small Municipal Waste Combustion Units). The regulatory text and other
background information for these final rulemakings can be accessed
electronically from the EPA Technology Transfer Network website. For
small MWC the Web site address is: http://www.epa.gov/ttn/atw/129/mwc/rimwc2.html.
Sections 111(d) and 129 of the Act require States in which a
designated existing facility is operating one or more small MWC units
to submit to EPA a plan to implement and enforce the emission
guidelines. If, however, there are no small MWC units and the State
therefore chooses not to develop and submit such a plan, it must submit
a negative declaration letter. (40 CFR 60.1510, 62.06.) Section 129 of
the Act requires that the State plan be at least as protective as the
emission guidelines and must provide for compliance by the affected
facilities no later than 3 years after EPA approves the State plan, but
no later than 5 years after EPA
[[Page 61271]]
promulgates the emission guidelines. Sections 111(d) and 129 of the Act
also require EPA to develop, implement and enforce a Federal
Implementation Plan if a State fails to submit an approvable State
plan. The small MWC plan must address regulatory applicability,
increments of progress for retrofit, operator training and
certification, operating practices, emission limits, continuous
emission monitoring, stack testing, record keeping, and reporting, and
requirements for air curtain combustors. States are required to follow
the requirements of 40 CFR part 60, subpart B, and 40 CFR part 62,
regarding the adoption and submittal of State plans for designated
facilities.
In addition to the publication of the emission guidelines document,
EPA notified each of the States of the requirements listed in the rule.
On February 23, 2001, EPA, Region 5 asked Ohio to provide information
so we could determine if the State was required to develop and submit
the required plan. The State began a detailed review of its internal
databases to ascertain the status of small MWC facilities. This effort
resulted in a determination there were no small MWC units and
culminated in the State's request for a negative declaration.
II. Negative Declarations and Their Justification
The EPA does not require States to develop plans or regulations to
control emissions from sources for which there are none present in the
State (40 CFR 62.06). If the State thinks that there may be some small
MWC units in operation, it should examine available records on these
sources before initiating the planning and regulation development
process. If after a careful examination of available information, the
State finds no sources for this source category, then it may prepare
and submit to us a negative declaration stating there are no sources in
the State which match this source category. This is done in lieu of
submitting a control strategy.
On June 25, 2002, the State of Ohio submitted to EPA a negative
declaration regarding the need for a regulation covering small MWC
units. The Ohio EPA searched for potentially affected sources in its
air source Permit to Operate (PTO) databases. A scan of those files
disclosed that from over 10,000 sources, a total of 2,478 units were
revealed bearing the ``N'' source code, denoting an incinerator. This
number included units placed on registration status as well as those
issued PTOs, and includes many units shut down years and even decades
ago. The state reviewed the equipment description on each ``N'' record
which showed that very few of the units have the potential to approach
the 35 ton per day threshold for small MWCs. Using this review
approach, Ohio found that seven units needed to be studied more
closely. Ohio EPA then mailed questionnaires to the facilities and
contacted local air offices to discuss the potentially affected units.
Following this effort the State concluded there are no existing small
MWCs in Ohio either operating or shut down but capable of restarting.
This conclusion is consistent with an inventory review conducted in
May 1998 by EPA Regional Offices and State air pollution control
agencies. Those agencies did not find any small MWC units in Ohio.
III. EPA Review of Ohio's Negative Declaration
EPA has examined the State's negative declaration regarding the
lack of need for a regulation controlling emissions from small MWC
units. We agree that, at this time, there appear to be no unregulated
small incinerators in Ohio which would require the adoption of rules to
control this source category. If a new source chooses to construct in
the State, it would be required to comply with new source performance
standard requirements published for small MWC units on December 6, 2000
(65 FR 76350). If, at a later date, an existing small MWC unit is
identified in the State, the Federal plan implementing the emission
guidelines contained in Subpart BBBB will automatically apply to that
MWC unit until the State develops a plan and EPA approves it. 40 CFR
60.1530.
EPA is publishing this action without prior proposal because we
view this as a noncontroversial revision and we anticipate no adverse
comments. However, in a separate document in this Federal Register
publication, EPA is proposing to approve the State's negative
declaration should adverse written comments be filed. This action will
be effective without further notice unless EPA receives relevant
adverse written comment by October 30, 2002. Should EPA receive such
comments, we will publish a final rule informing the public that this
action will not take effect. Any parties interested in commenting on
this action should do so at this time. If no comments are received, the
public is advised that this action will be effective on November 29,
2002.
IV. Administrative 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. 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 Ohio's declaration that there are no small MWC's
located in Ohio which would be subject to an MWC regulation if one were
adopted. Therefore, the State does not need to adopt a MWC regulation.
Any new MWC's built in Ohio will be subject to New Source Performance
Standards. Because this rule approves state negative declarations and
does not impose any additional enforceable duty, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4). This rule also does 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),
nor will it 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), because it merely approves a state declaration that a rule
implementing a federal standard, is 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 (62 FR 19885, April 23, 1997), because it is not
economically significant.
In reviewing SIP 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 SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission,
[[Page 61272]]
to use VCS in place of a SIP 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. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
rule, EPA has taken the necessary steps to eliminate drafting errors
and ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct. EPA has complied with Executive Order
12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the ``Attorney General's
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings'' issued under the executive order. 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.).
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). This rule will be effective November 29, 2002, unless EPA
receives adverse written comments by October 30, 2002.
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 November 29, 2002. 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 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, Intergovernmental relations, Reporting and
recordkeeping requirements.
Dated: September 18, 2002.
Steve Rothblatt,
Acting Regional Administrator, Region 5.
For the reasons stated in the preamble, part 62, chapter I, title
40 of the Code of Federal Regulations is amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart KK--Ohio
2. A new center heading and Sec. 62.8855 are added to read as
follows:
Emissions From Small Municipal Waste Combustion Units With the Capacity
To Combust at Least 35 Tons Per Day of Municipal Solid Waste But No
More Than 250 Tons Per Day of Municipal Solid Waste and Commenced
Construction on or Before August 30, 1999
Sec. 62.8855 Identification of plan--negative declaration.
On July 25, 2002, the State of Ohio certified to the satisfaction
of the United States Environmental Protection Agency that no sources
categorized as small Municipal Waste Combustors are located in the
State of Ohio.
[FR Doc. 02-24767 Filed 9-27-02; 8:45 am]
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