ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

FDMS Docket No. EPA-R03-OAR-2007-0354 ; [FRL-   ] 

Approval and Promulgation of State Air Quality Plans for Designated
Facilities and Pollutants; Delaware, and West Virginia; Control of
Emissions from Existing Other Solid Waste Incinerator Units

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule; notice of administrative change.

SUMMARY:  EPA is notifying the public that it has received negative
declarations for other solid waste incinerator (OSWI) units from the
States of Delaware, and West Virginia.  These negative declarations
certify that OSWI units subject to the requirements of sections 111(d)
and 129 of the Clean Air Act (CAA) do not exist within the
jurisdictional boundaries of these air pollution control agencies. 

DATES:  The effective date is [insert the date of publication in the
Federal Register]. 

ADDRESSES:  Docket:  All documents are located in the Regional Material
Edocket, identified by Docket ID Number EPA- RO3-OAR-2007-0354.   The
RME index can be found at   HYPERLINK "http://docket.epa.gov/rmepub/" 
http://docket.epa.gov/rmepub/ .   Although listed in the index, some
information may not be publicly available, i.e., Confidential Business
Information (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 Protection Division,
U.S. Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.  EPA requests that if all possible,
you contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection.  Copies of the State agency
submittals are available at the Delaware Department of Natural Resources
& Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover,
Delaware 19903; and the West Virginia Department of Environmental
Protection, Division of Air Quality, 601 57th Street SE, Charleston, WV
25304.

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

Sections 111(d) and 129 of the CAA 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 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 other solid waste
incineration (OSWI) 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 16, 2005 (70 FR 74870, and 74907), EPA promulgated OSWI
unit new source performance standards, 40 CFR part 60, subparts EEEE,
and emission guidelines (EG), subpart FFFF, respectively.

The designated facilities to which the EG apply are existing very small
municipal solid waste combustion (MWC) units that have a design
combustion capacity of less than 35 tons per day and institutional waste
incineration units that commenced construction on or before December 9,
2004.    

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 parts 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 that require the submittal of a 111(d)/129
plan.  Under subpart FFFF, State are required to submit by December 18,
2006 a negative declaration or approvable section 111(d)/129 plan.

II. Final EPA Action

The States of Delaware and West Virginia have determined that there are
no designated facilities, subject to subpart FFFF requirements, in their
respective air pollution control jurisdiction.  Accordingly, each air
pollution control agency has submitted to EPA a negative declaration
letter certifying that fact.  The submittal dates of these letters are
June 26, and  June 2, 2006, respectively.  

Accordingly, EPA is amending part 62 to reflect the receipt of these
negative declaration letters from the noted air pollution control
agencies.  Amendments are being made to the following 40 CFR part 62
subparts: I - Delaware, and XX -West Virginia.  

III. 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 state air pollution
control agencies without any existing OSWI units in their jurisdiction. 
This action imposes no requirements.  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 action is only a notice 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 (Public Law 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 notifies the public of EPA’s receipt of negative
declarations for existing OSWI units from state agencies and 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.  

With regard to negative declarations for OSWI units received by EPA for
states, EPA’s role is only to notify the public of the receipt of such
negative declarations.  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 approve or disapprove a CAA section
111(d)/129 plan negative declaration submission for failure to use VCS. 
It would thus be inconsistent with applicable law for EPA, when it
reviews a CAA section 111(d)/129 negative declaration, to use VCS in
place of a section 111(d)/129 negative declaration 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 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.  This action is not a rulemaking, however, 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.  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 [insert date 60 days from date of
publication of this document in the Federal Register].  Filing a
petition for reconsideration by the Administrator of this action 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
action.  

This action approving the section 111(d)/129 negative declarations
submitted by the States of Delaware, and West Virginia 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.

                                                                        
                    /s/

__________________		            __________________________

Dated:   June 28, 2007           			William C. Early, Acting

                                      			Regional Administrator,

                                      			Region III.



40 CFR Part 62 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 I - Delaware

2. 	Subpart I is amended by adding an undesignated center heading and §
62.1990 to read as follows:

EMISSIONS FROM EXISTING OTHER SOLID WASTE COMBUSTION UNITS

§ 62.1990		Identification of plan - negative declaration.

Letter from the Delaware Department of Natural Resources and
Environmental Control submitted June 26, 2006, certifying that there are
no existing other solid waste incinerator units within the State of
Delaware that are subject to 40 CFR part 60, subpart FFFF.

Subpart XX – West Virginia

3. 	Subpart XX is amended by adding an undesignated center heading and
§ 62.12165 to read as follows:

 EMISSIONS FROM OTHER SOLID WASTE INCINERATOR UNITS

§ 62.12165		Identification of plan - negative declaration.

Letter from the West Virginia Department of Environmental Protection
submitted June 2, 2006, certifying that there are no existing other
solid waste incinerator units within the State of West Virginia that are
subject to 40 CFR part 60, subpart FFFF.

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