[Federal Register Volume 70, Number 43 (Monday, March 7, 2005)]
[Rules and Regulations]
[Pages 10891-10894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4337]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[R04-OAR-2004-TN-0003-200428(a); FRL-7881-7]
Approval and Promulgation of State Plan for Designated Facilities
and Pollutants; Nashville, TN
AGENCY: Environmental Protection Agency (EPA).
ACTION : Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency is approving
the section 111(d) /129 plan submitted by Tennessee for the Pollution
Control District (PCD) of the Metro Public Health Department for
Nashville/Davidson County on May 28, 2002, for implementing and
enforcing the Emissions Guidelines (EG) applicable to existing
Commercial and Industrial Solid Waste Incineration (CISWI) units that
commenced construction on or before November 30, 1999.
DATES: This direct final rule will be effective May 6, 2005 unless EPA
receives adverse comments by April 6, 2005. If adverse comments are
received, EPA will publish a timely withdrawal of the direct final rule
in the Federal Register informing the public that the rule will not
take effect.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID No. R04-OAR-2004-TN-0003, by one of the following
methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Agency Web site: http://docket.epa.gov/rmepub/ RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Once in the system, select ``quick search,''
then key in the appropriate RME Docket identification number. Follow
the on-line instructions for submitting comments.
3. E-mail: [email protected].
4. Fax: (404) 562-9164.
5. Mail: ``R04-OAR-2004-TN-0003,'' Air Toxics Assessment and
Implementation Section, Air Toxics and Monitoring Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia
30303-8960.
6. Hand Delivery or Courier. Deliver your comments to: Joydeb
Majumder, Air Toxics and Monitoring Branch 12th floor, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during
the Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through Friday, 8:30 a.m. to 4:30
p.m., excluding federal holidays.
Instructions: Direct your comments to RME ID No. R04-OAR-2004-TN-
0003. 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://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 Web site and the federal regulations.gov Web
site are ``anonymous access'' systems, 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://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 at the Air Toxics Assessment and Implementation
Section, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency,
[[Page 10892]]
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA
requests that if at all possible, you contact the contact listed in the
FOR FURTHER INFORMATION CONTACT section to schedule your inspection.
The Regional Office's official hours of business are Monday through
Friday, 8:30 am to 4:30 pm, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Melissa Krenzel at (404) 562-9196 or
Joydeb Majumder at (404) 562-9121.
SUPPLEMENTARY INFORMATION:
I. Background
On December 1, 2000, pursuant to sections 111 and 129 of the Clean
Air Act (Act), EPA promulgated new source performance standards (NSPS)
applicable to new CISWIs and EG applicable to existing CISWIs. The NSPS
and EG are codified at 40 CFR part 60, subparts CCCC and DDDD,
respectively. Subparts CCCC and DDDD regulate the following:
Particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides
of nitrogen, carbon monoxide, lead, cadmium, arsenic, beryllium,
chromium, hydrocarbons, mercury, and dioxins and dibenzofurans.
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. EPA
originally promulgated the subpart B provisions on November 17, 1975.
EPA amended subpart B on December 19, 1995, to allow the subparts
developed under section 129 to include specifications that supersede
the general provisions in subpart B regarding the schedule for
submittal of State Plans, the stringency of the emission limitations,
and the compliance schedules.
This action approves the State Plan submitted by Tennessee for the
PCD for Nashville/Davidson County to implement and enforce subpart
DDDD, as it applies to existing CISWI units only.
II. Discussion
Tennessee submitted to EPA on May 28, 2002, the following in their
111(d)/129 State Plan for implementing and enforcing the EG for
existing CISWIs under their direct jurisdiction in Nashville/Davidson
County: Public Hearings; Inventory of Affected CISWI Units; Regulation
No. 17, ``Regulation For Control of Commercial and Industrial Solid
Waste Incineration Units''; Emission Inventories of Affected CISWI
Units; Enforceable Mechanism for Implementing the EG; Submittal of
Progress Reports to EPA; and Demonstration of Authority to Carry Out
the Plan.
The approval of the PCD's Nashville/Davidson County State Plan is
based on finding that: (1) PCD provided adequate public notice of
public hearings for the EG for CISWIs, and (2) PCD also demonstrated
legal authority to adopt emission standards and compliance schedules to
designated facilities; authority to enforce applicable laws,
regulations, standards, and compliance schedules, and authority to seek
injunctive relief; authority to obtain information necessary to
determine whether designated facilities are in compliance with
applicable laws, regulations, standards, and compliance schedules,
including authority to require record keeping and to make inspections
and conduct tests of designated facilities; and authority to require
owners or operators of designated facilities to install, maintain, and
use emission monitoring devices and to make periodic reports to the
State on the nature and amount of emissions from such facilities.
PCD cites the following references for the legal authority: the
Tennessee Code Annotated (TCA), in 68-201-115, gives Metro Public
Health Department the authority to adopt and enforce laws for the
control of air pollution as long as those laws are not less stringent
than those of the State of Tennessee. Article 10, ``Public Health and
Hospitals,'' Chapter 1, ``Public Health,'' Sections 10.101 through
10.104 of the Charter of the Metropolitan Government empowers the Board
to adopt regulations having the force of law for the control of air
pollution. The Metropolitan Code of Laws (MCL), Chapter 10.56, ``Air
Pollution Control,'' Section 10.56.090, ``Board--Powers and Duties''
and Section 10.56.150, ``Nuisance Declared--Injunctive Relief'' give
the Board the legal authority to enforce relevant laws, regulations,
standards, and compliance schedules, and to seek injunctive relief. MCL
Chapter 10.56, ``Air Pollution Control,'' Section 10.56.290,
``Measurement and Reporting of Emissions'' gives the Board the legal
authority to obtain the necessary information to determine compliance,
require recordkeeping, make inspections, and conduct tests and to
require the use of monitors and the submittal of emission reports.
Tennessee Statute, TCA 10-7-503, ``Records Open to Public Inspection--
Exceptions'' and 10-7-504, ``Confidential Records'' and MCL, Section
2.36.130, ``Records and Proceedings--Public Inspection Authorized
When'' provide the authority to make available to the public any
emission data submitted by CISWI facilities.
An enforcement mechanism is a legal instrument by which the PCD can
enforce a set of standards and conditions. PCD has adopted the model
rule from 40 CFR part 60, subpart DDDD, as Regulation No. 17,
``Regulation for Control of Commercial and Industrial Solid Waste
Incineration Units which Commenced Construction On or Before November
30, 1999.'' Therefore, PCD's mechanism for enforcing the standards and
conditions of 40 CFR 60, subpart DDDD, is Regulation No. 17. On the
basis of these statutes and rules of the Metropolitan Board of Health,
the State Plan is approved as being at least as protective as the
Federal requirements for existing CISWI units.
PCD adopted all emission standards and limitations applicable to
existing CISWI units. These standards and limitations have been
approved as being at least as protective as the Federal requirements
contained in subpart DDDD for existing CISWI units.
PCD submitted the compliance schedule for CISWIs under their
jurisdiction in Nashville/Davidson County. This portion of the Plan has
been reviewed and approved as being at least as protective as Federal
requirements for existing CISWI units.
PCD submitted an emissions inventory of all designated pollutants
for CISWI units under their jurisdiction in Nashville/Davidson County.
This portion of the Plan has been reviewed and approved as meeting the
Federal requirements for existing CISWI units.
PCD includes its legal authority to require owners and operators of
designated facilities to maintain records and report to their Agency
the nature and amount of emissions and any other information that may
be necessary to enable their Agency to judge the compliance status of
the facilities in Appendix 3 of the State Plan. In Appendix 3, PCD also
submits its legal authority to provide for periodic inspection and
testing and provisions for making reports of CISWI emissions data,
correlated with emission standards that apply, available to the general
public.
The State Plan outlines the authority to meet the requirements of
monitoring, recordkeeping, reporting, and compliance assurance. This
portion of the Plan has been reviewed and approved as being at least as
protective
[[Page 10893]]
as Federal requirements for existing CISWI units. PCD will provide
progress reports of plan implementation updates to the EPA on an annual
basis. These progress reports will include the required items pursuant
to 40 CFR part 60, subpart B. This portion of the plan has been
reviewed and approved as meeting the Federal requirement for State Plan
reporting. This action approves the State Plan submitted by PCD for
Nashville/Davidson County to implement and enforce subpart DDDD, as it
applies to existing CISWI units only.
III. Final Action
This action approves the State Plan submitted by Tennessee for the
PCD for Nashville/Davidson County to implement and enforce subpart
DDDD, as it applies to existing CISWI units only. EPA is publishing
this rule without prior proposal because the Agency views this as a
noncontroversial submittal 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 the SIP revision should adverse comments be
filed. This rule will be effective May 6, 2005 without further notice
unless the Agency receives adverse comments by April 6, 2005.
If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent 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 May 6, 2005 and no
further action will be taken on the proposed rule. Please note that if
we receive adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, we may adopt as final those provisions of the rule that are
not the subject of an adverse comment.
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 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 rule
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.).
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 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 May 6, 2005. 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, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements, Sulfur oxides,
Waste treatment and disposal.
Dated: February 11, 2005.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
0
Chapter I, title 40 of the Code of Federal Regulation 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 RR--Tennessee
0
2. Subpart RR is amended by adding an undesignated center heading and
Sec. 62.10630 to read as follows:
[[Page 10894]]
Air Emissions From Commercial and Industrial Solid Waste Incineration
(CISWI) Units--Section 111(d)/129 Plan
Sec. 62.10630 Identification of sources.
The Plan applies to existing Commercial and Industrial Solid Waste
Incineration Units that Commenced Construction On or Before November
30, 1999, in Nashville/Davidson County.
[FR Doc. 05-4337 Filed 3-4-05; 8:45 am]
BILLING CODE 6560-50-P