Air programs; approval and promulgation; State plans for designated facilities and pollutants: Nevada,

[Federal Register: December 10, 2003 (Volume 68, Number 237)]

[Rules and Regulations]

[Page 68738-68740]

From the Federal Register Online via GPO Access []



40 CFR Part 62

[NV108-SWIa; FRL-7595-5]

Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; Control of Emissions From Existing Commercial/Industrial Solid Waste Incinerator Units; Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to approve a negative declaration submitted by the Nevada Division of Environmental Protection. The negative declaration certifies that commercial/ industrial solid waste incinerator units, subject to the requirements of sections 111(d) and 129 of the Clean Air Act, do not exist within the agency's air pollution control jurisdiction.

DATES: This rule is effective on February 9, 2004 without further notice, unless EPA receives adverse comments by January 9, 2004. 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: Send comments to Andrew Steckel, Rulemaking Office Chief (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne

FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX, (415) 947-4124,


  1. Background

    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

    [[Page 68739]]

    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 commercial/ industrial solid waste incinerator (CISWI) units that emit a mixture of air pollutants. These pollutants include organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (including opacity).

    On December 1, 2000 (65 FR 75338), EPA promulgated CISWI unit new source performance standards and EG, located at 40 CFR part 60, subparts CCCC and DDDD, respectively. The designated facility to which the EG apply is each existing CISWI unit, as defined in subpart DDDD, that commenced construction on or before November 30, 1999.

    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.

  2. Final EPA Action

    The Nevada Division of Environmental Protection (NDEP) has determined that there are no designated facilities subject to the CISWI unit EG requirements in its air pollution control jurisdiction. On October 16, 2003, NDEP submitted to EPA a negative declaration letter certifying this fact. EPA is amending 40 CFR part 62, subpart DD (Nevada) to reflect the receipt of this negative declaration letter.

    After publication of this Federal Register notice, if a CISWI facility is later found within the NDEP jurisdiction, then the overlooked facility will become subject to the requirements of the Federal CISWI 111(d)/129 plan, including the compliance schedule. The Federal plan would no longer apply if EPA subsequently were to receive and approve a 111(d)/129 plan from NDEP.

    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 NDEP's negative declaration should relevant adverse or critical comments be filed.

    This rule will be effective February 9, 2004 without further notice unless the Agency receives relevant adverse comments by January 9, 2004. 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.

  3. Statutory and Executive Order Reviews

    1. 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 a State determination 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 a State negative declaration in response to 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.).

    2. 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

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      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 rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

    3. 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 February 9, 2004. 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 declaration submitted by NDEP 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, Sulfuric acid plants, Waste treatment and disposal.

      Dated: November 19, 2003. Alexis Strauss, Acting Regional Administrator, Region IX.

      0 Part 62, Chapter I, Title 40 of the Code of Federal Regulations 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. 7401-7671q.

      Subpart DD--Nevada

      0 2. Section 62.7130 is amended by adding paragraph (c) to read as follows:

      Sec. 62.7130 Identification of plan.

      * * * * *

      (c) The Nevada Division of Environmental Protection submitted on October 16, 2003, a letter certifying that there are no existing commercial/industrial solid waste incineration units in its jurisdiction that are subject to 40 CFR part 60, subpart DDDD.

      [FR Doc. 03-30590 Filed 12-9-03; 8:45 am]

      BILLING CODE 6560-50-U

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