### Federal Register/Vol. 70;"No. 78

### /Monday, April' 25, .2005/Rules and Regulations

the eye." is removed and the language "all ofwhich are for treatment ofthe eye." is added in its place.


### PART2590-RULES AND REGULATIONS FOR GROUP HEALTH PLANS

mParagraph 1. The authority citation for part 2590 continues to read as follows:

Authority: 29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185,1185a,1185b,1191, 1191a, 1191b, and 1191c, sec. 101(g), PublicLaw 104-191, 101 Stat. 1936; sec. 401(b), Public Law 105-200, 112 Stat. 645 (42 U.S.C. 651 note); Secretary ofLabor's Order 1-2003, 68 FR5374 (Feb. 3, 2003). §2590.731 [Corrected]
0 2. Section 2590.731(c)(2)(i), the language "§ 2590.701-3(a)(1)(i) (for purposes of" is removed and the language "§ 2590.701-3(a)(2)(i) (for purposes of" is added in its place.

m3. Section2590.731(c)(2)(ii), the language "and § 2590.701-3(a)(1)(ii) (for purposes" is removed and the language "§ 2590.701-3(a)(2)(ii) (for purposes" is added inits place.

n 4. Section 2590.731(c)(2)(iii), the language "the Act and 

### §§ 2590.701- 3(a)(1)(iii) and" is removed and the language "the Act and 

### §§ 2590.701- 3(a)(2)(iii) and" is added inits place.



### PART 146-REQUIREMENTS FOR THE GROUP HEALTH INSURANCE
MARKET

mParagraph 1. Theauthority citation for part 146 continues to read as follows:

Authority: Secs 2701 through 2763, 2791, and2792, ofthe Public Health Service Act, 42U.S.C. 300gg through 300gg-63, 300gg-91, 30gg-92 as amended by HIPAA (Pub.L.104- 191, 110 Stat. 1936), MHPA (Pub.L. 104-204, 110 Stat. 2944, as amendedbyPub. L.107- 116, 115 Stat. 2177), NMHPA (Pub.L. 104- 204, 110 Stat. 2935), WHCRA (Pub. L.105- 277, 112 Stat. 2681-436), and section 103(c)(4) ofHIPAA. §146.125- (Corrected]

M

5. Section 146.125, thelanguage "Sections 146.111 through 146.119," is removed and the language "Section 144.103, §§ 146.111 through 146.119," is added in its place. §146.143 [Corrected]



### n 6. Section 146.143(b), the language "section 514 ofthe Act with respect to" is removed and thdlanguage "section 514 ofERISA with respect to" is added inits place.

a 7.Section 146.143(c)(2)(i), the language "§146.111(a)(1)(i) (for purposes,of" is removed and the language "§ 146.111(a)(2)(i) (for purposes of" is added inits place.

a 8. Section 146.143(c)(2)(ii), the language "PHS Act and 

### § 146.111(a)(1)(ii) (for" is removed and the language "PHS Act and 

### § 146.111(a)(2)(ii) (for" is added in its place. * 9. Section 146.143(c)(2)(iii), the language "the PHS Act and 

### §§ 146.111(a)(1)(iii)" is removed andthe language "the PHS Act and 

### §§ 146.111(a)(2)(iii)" is added inits place. Cynthia E.Grigsby, Acting Chief, Publications andRegulations BranchLegalProcessing Division,Associate Chief Counsel(Procedure and Administration), Internal Revenue Service, Departmentofthe Treasury.

Dated this 16th day ofMarch,.2005. Ann Agnew,
ExecutiveSecretary,Department of

Health andHumanServices.

Dated this 15th day ofFebruary, 2005. Daniel J.Maguire, Director, Officeof HealthPlanStandards and Compliance Assistance,EmployeeBenefits SecurityAdministration, Department of Labor. [FRDoc. 05-8154 Filed 4-22-05; 8:45 am]

BILLING CODE 4830-01-P; 4510-29-P; 4120-01-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52 [FRL-7885-71
Finding of Failure To Submit Section 110 State Implementation Plans for Interstate Transport forthe National Ambient AirQuality Standards for8- .HourOzone and PM 2.5
AGENCY: Environmental Protection Agency (EPA).

Regional offices

Dave Conroy, Acting Branch Chief, Air Programs Branch, EPA New

England, I Congress Street, Suite 1100, Boston, MA 02114-2023, (617) 918-1661. Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290

Broadway, 25th Floor, New York, NY 10007-1866, (212)637-4249. Makeba Morris, Branch Chief, Air Quality Planning Branch, EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2187, (215) 814- 2187. Connecticut, Maine, and Vermont. ACTION: Finalrule.

SUMMARY: The EPA is today making a finding that States have failed to submit State Implementation Plans (SIPs) to satisfy the requirements of section 110(a)(2)(D)(i) of the Clean AirAct (CAA)for the 8-hour ozone and PM2.5 (particles with an aerodynamic diameter less than orequal to a nominal 2.5 micrometers) National Ambient Air Quality Standards (NAAQS). Section 110(a)(1) ofthe CAA requires that States submit SIPs to meet the applicable requirements ofsection 110(a)(2) within 3 years after the promulgation of anew

orrevised NAAQS, orwithin such shorter period as EPA may provide. Pursuant to section 110(a)(1), States are required to submit SIPs that satisfy the requirements ofsection 110(a)(2)(D)(i) related to interstate transport of pollution. At present; States have not yet submitted SIPsto satisfy this requirement ofthe CAA, and EPA is by this action making a finding offailure to submit which starts a 2-year clock for the promulgation of aFederal 'Implementation Plan (FIP)by EPA unless, prior to that time,each State makes a submission to meet the requirements ofsection 110(a)(2)(D)(i) and EPA approves such submission.
DATES: The effective date ofthis rule is May 25, 2005.

FOR FURTHER INFORMATION CONTACT: General questions concerning this final rule should be addressed to Mr. Larry D. Wallace, Ph.D., Office ofAir Quality Planning and Standards, Air Qaulity Strategies and Standards Division, Mail Code C504-02, Research Triangle Park, N.C. 27711; telephone (919) 541-0906.
SUPPLEMENTARY INFORMATION: For questions related to a specific State, please contact the appropriate regional office:

States

Massachusetts, New Hampshire, Rhode Island,

New Jersey, New York, Puerto Rico, and Virgin Islands.

Delaware, District of Columbia, Maryland, Pennsylvania,,Virginia, and

West Virginia. 

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Regional offices

Richard A. Schutt, Chief, Regulatory Development Section, EPA Region IV, Sam Nun Atlanta Federal Center, 61 Forsyth, Street, SW, 12th Floor, Atlanta, GA 30303, Kentucky, (404) 562-9033. Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West

Jackson Street, Chicago, IL 60604, (312) 886-4447. Rebecca Weber, Associate Director Air Programs, EPA'Region VI,

1445 Ross Avenue, Dallas, TX 75202, (214) 665-7200. Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901

North 5th Street, Kansas City, Kansas 66101-2907, (913) 551-7606. Richard R. Long, Director, Air and Radiation Program, EPA Region

VIII, 999 18th, Suite 300, Denver, CO 80202, (303) 312-6005. Steven Barhite, Air Planning Office, EPA Region IX, -75 Hawthorne

Street, San Francisco, CA 94105, (415) 972-3980. Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region

X, Office of Air, Waste, and Toxics, Mail Code OAQ-1 07, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-6985. States Alabama, Florida, Georgia, Kentucky, .Mississippi, North Carolina,

South Carolina, and Tennessee.
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Iowa, Kansas, Missouri, and Nebraska.
Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming.
Arizona, California, Guam, Hawaii, and Nevada.
Alaska, Idaho, Oregon, and Washington.

Table ofContents
I.Background II. Today's Action III. Statutory and Executive Order Reviews

A. Notice and Comment Under the

Administrative Procedures Act B. Executive Order 12866: Regulatory

Planning and Review C. Paperwork Reduction Act D.Regulatory Flexibility Act E. Unfunded Mandates Reform Act F.Executive Order 13132: Federalism G. Executive Order 13175: Consultation

and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of

Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, orUse J. National Technology Transfer

Advancement Act K. Congressional Review Act L. Judicial Review

1. Background

On July 18, 1997, EPA issued new standards for the 8-hour ozone and particulate matter (PM)NAAQS. For
ozone, EPA revised the NAAQS by adding an 8-hour averaging period (versus 1 hour for the previous NAAQS), and the level ofthe standard

was changed from 0.12 ppm to 0.08
ppm (62 FR 38856). For the PM NAAQS, EPA added a new 24-hour standard and a new annual standard for PM2.5.

Section 110(a)(1) ofthe CAA requires States to submit new SIPs that provide for the implementation, maintenance, and enforcement a new or revised standard within 3 years after promulgation ofsuch standard, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, including section 110(a)(2)(D)(i) which applies to interstate transport ofcertain emissions. Section 110(a)(1) imposes the obligation upon States to make a SIP submission fora new orrevised NAAQS, but the
contents ofthat submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available atthe time the State develops and submits the SIP for a new: orrevised NAAQS necessarily affects the content ofthe submission.

For the 8-hour ozone standard and the PM2.5 standards, States.should already have sublnitted SIPs that satisfied the section 110(a)(2)(D)(i) requirement related to interstate transport forthese

new NAAQS. At present, States have
not submitted plans to satisfy this requirement, and EPA is today making

a finding offailure to submit. This finding starts a 2-year clock for promulgation by EPA ofa FIP, in accordance with section 110(c)(1), for any State that does not submit a SIP meeting the requirements ofsection 110(a)(2)(D)(i) for the PM2.5 and 8-hour

ozone NAAQS. This action does not start a sanctions clock pursuant to section 179 because this finding of failure to submit does not pertain to a part D plan fornonattainment areas required under section 110(a)(2)(I) and because this action is not a SIP Call pursuant to section 110(k)(5).

II. Today's Action

By today's action, EPA is making the finding that States have failed to submit SIPs to satisfy therequirements of section 110(a)(2)(D)(i) of the CAA for the 8-hour ozone and PM2.5 NAAQS. This finding starts a 2-year clock for the promulgation by EPA of aFIP, unless each State submits a SIP to satisfy the section 110(a)(2)(D)(i) requirements, and EPA approves such submission prior to that time. Today's action will be effective on May 25, 2005. I. Statutoryand Executive Order Reviews

A. NoticeandComment Underthe AdministrativeProcedures Act
This is a final EPA action, but is not subject to notice-and-comment requirements ofthe Administrative Procedures Act (APA), 5 U.S.C. 553(b). The EPA invokes, consistent with past practice (forexample, 61 FR 36294), the good cause exception pursuant to APA, 5 U.S.C. 553(b)(3)(B). Notice and comment are unnecessary because no significant EPAjudgment is involved in making a finding offailure to submit SIPs or elements ofSIPs required by the CAA, where States have made no submissions to meet the requirement by the statutory date.

B. Execqtive Order12866:Regulatory Planning andReview Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is "significant" and, therefore, subject to OMB review and the requirements of the Executive Order. The order defines "significant regulatory action" as one that is likely to result ina rule that may:

(1) Have an annual effect on the economy of $100 million ormore or adversely affect ina material way the economy, a sector ofthe economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees,

or loan programs orthe rights and obligations ofrecipients thereof; or

(4) Raise novel legal or policy issues, arising out oflegal mandates, the President's priorities, orthe principles set forth inthe Executive Order. 

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Pursuant to tieterms ofExecutive Order 12866, a determination has been made thatthis rule is nota "significant regulatory action" because none of the above factors apply. As such, this final action was not formally submitted to The Office ofManagement and Budget (OMB) forreview.
C.Paperwork ReductionAct This action does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq.This rule relates to the requirement inthe CAA for States to submit SIPsunder section 110(a)(1) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) ofthe CAA for the 8-hour ozone and the PM2.5 NAAQS. Section 110(a)(1) ofthe CAA requires that States submit SIPs that implement, maintain, and enforce a new'or revised NAAQS which satisfies the requirements ofsection 110(a)(2) within 3years ofpromulgation of such standard, or shorter period as EPA may provide. The present finalrule does not establish any new information collection requirement apart from that required by law. Burden means that total time, effort, or financial resources expended by persons to generate, maintain, retain, ordisclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes ofcollecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions andrequirements; train personnel to be able to respond to acollection of information; search data sources; complete and review the collection of information; and transmit orotherwise disclose the information. AnAgency may not conduct or sponsor, and a person is notrequired to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in the Code ofFederal Regulations (CFR) are listedin 40 CFR part 9.

D.RegulatoryFlexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare
aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act (APA) or any other statute unless the EPA certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For the purpose ofassessing the impacts oftoday's final rile on small entities, small entity isdefined as: (1)A small business that is a small industry entity as defined inthe U.S. Small Business Administration (SBA) size standards. (See 13 CFR,part 121); (2) a small governmental jurisdiction that is a government of acity, county, town, school district or special district with a population ofless than 50,000; and (3)

a small organization that is any not-forprofit enterprise which independently owned and operated is not -dominatein its field.

Courtshave interpreted the RFA to require a regulatory flexibility analysis only when small entities willbe subject to the requirements ofthe rule. See, Michiganv. EPA, 213 F.3d 663, 668-69 (D.C. Cir., 2000), cert.den., 532 U.S. 903 (2001). This rule would not establish requirements applicable to small entities. Instead, it would require States to develop, adopt, and submit SIPs to meet the requirements of.section 110(a)(2)(D)(i), and would leave to the States the task ofdetermining how to meet those requirements, including which entities to regulate. Moreover, because affected States would have discretion to choose the sources to regulate andhow much emissions reductions each selected source would have to achieve, EPA could not predict the effect ofthe rule on small entities.

After considering the economic impacts oftoday's final rule on small entities, I certify that thisrule will not have a significant economic impact on
a substantial number ofsmall entities.

E. UnfundedMandatesReform Act

Title II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 ofthe UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with "Federal mandates" that may result in expenditures to State, local, and Tribal governments, inthe aggregate, orto the private sector, of $100 million or more inany 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 ofthe UMRA generally requires EPA to identify and consider a reasonable number ofregulatory alternatives and adoptthe least costly, most cost-effective or least burdensome alternative that achieves the objectives ofthe rule. The provisions ofsection 205 do notapply whenthey are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly,most cost-effective orleast burdensome alternative ifthe Administrator publishes withthe final rule an explanation ofwhy that alternative,was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including Tribal governments, it musthave developed under section 203 ofthe UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development ofEPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small government on compliance with regulatory requirements.

Today's action does notinclude a Federal mahdate within the meaning of UMRA that may result in expenditures of$100 million or more in any 1 year by either State, local, orTribal governments inthe aggregate orto the private sector, and therefore, is not subject to the requirements of sections 202 and 205 of the UMRA. It does not create any additional requirements beyond those ofthe PM2.5 and 8-hour

ozone NAAQS (62 FR 38652; 62 FR 38856, July 18, 1997). Therefore, no UMRA analysis is needed. This rule responds to the requirement inthe CAA for States to submit SIPs under section 110(a)(1) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) ofthe CAAfor the 8-hour ozone and PM2.5 NAAQS. Section 110(a)(1) ofthe CAA requires that States submit SIPs that implement, maintain, and enforce a new
orrevised NAAQS which satisfies the requirements ofsection 110(a)(2) within 3 years ofpromulgation ofsuch standard, or shorter period asEPA may provide.

Inasmuch as this action simply finds that States have failed to submit SIPs to address apre-existing statutory requirement under the CAA, this Federal action will notimposJ mandates that will require expenditures of$100 million ormore in the aggregate in any 1year. However, EPA notes, that in another.final rule signed today (the Clean AirInterstate Rule orCAIR), EPA is making findings ofsignificant contribution for many States and requiring the submission ofSIPs that will control sulfur dioxide and nitrogen oxide emissions in order to eliminate 

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interstate transport and that EPA has estimated in that action that such controls willhave annual costs of$1.91 billion in 2010 and $2.56 billion in 2015, assuming a 3percent discount rate. The EPA, plans to issue separate guidance concerning compliance with section 110(a)(2)(D)(i) for States other than those subject to the CAIR.

F.Executive Order13132:Federalism

Executive Order 13132, entitled "Federalism" (64FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations that have "substantial direct effects on the States, orthe relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels ofgovernment."

This final rule does not have federalism implications. It will nothave substantial direct effects on the States,

on the relationship between the national government and the States, or onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. TheCAA establishes the scheme whereby States take the lead in-developing plans to meetthe NAAQS. This rule will not modify the relationship ofthe States and EPA for purposes ofdeveloping programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to thisrule.
G.Executive Order13175:Consultation andCoordinationWith Indian Tribal Governments

Executive Order 13175, entitled "Consultation and Coordination with Indian Tribal Governments" (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to

ensure "meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications." This final rule does not have "Tribal implications" as specified in Executive Order 13175. This rule responds to the requirement in the CAA for States to submit SIPs under section 110(a)(1) to satisfy certain elements required under section 110(a)(2) ofthe CAA for the 8-hour ozone and PM2.5 NAAQS. Section 110(a)(1) ofthe CAA requires that States submit SIPs that provide for-implementation, maintenance, and enforcement-of a new
or revised NAAQS, and which satisfy the applicable requirements ofsection 110(a)(2), within 3 years of promulgation ofsuch standard, or within shorter period asEPA may provide. The CAA provides for States and Tribes to d6velop plans to regulate emissions ofair pollutants within their jurisdictions. Theregulations clarify the statutory obligations ofStates and Tribes that develop plans to implement thisrule. The Tribal Authority Rule (TAR)gives Tribes the opportunity to develop and implement CAA programs, butit leaves to the discretion ofthe Tribe whether to develop these programs and which programs, or appropriate elements of aprogram, the Tribe will adopt.

This rule does not have Tribal implications as defined by Executive Order 13175. It does nothave a substantial direct effect on one ormore Indian Tribes, because no Tribe has implemented an air quality management programrelated to the 8-hour ozone or the fineparticle NAAQS atthis time. Furthermore, thisrule does not affect the relationship ordistribution ofpower and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship ofthe Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does nothave Tribal implications, Executive Order 13175 does notapply.

H. Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

Executive Order 13045: "Protection of Children From Environmental Health and Safety Risks" (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be "economically significant" as defined under Executive Order 12866, and (2) concerns an environmental health and safety risk that EPA has reason to believe may have

a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects ofthe planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does nothave reason to believe that the environmental health risks or safety risks addressed by this rule present a disproportionate risk or safety .riskto children. Nonetheless, we have evaluated the environmental health or safety effects ofthe PM2.5 and the 8- hour ozone NAAQS on children, The results ofthis riskassessment are contained in the NAAQS for PM2.5 and 8-hour Ozone Standard, Final Rule [(62 FR 38652) and (62 FR 38856), July 18, 19971.

L Executive Order13211:Actions That Significantly Affect EnergySupply, Distribution,orUse

This ruleis not subject to Executive Order 13211, "Actions That Significantly Affect Energy Supply, 'Distribution, or Use," (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Information on the methodology and data regarding the assessment of potential energy impacts is found in Chapter 6 ofU.S. EPA 2002, Cost, Emission Reduction, Energy, and the Implementation Framework forthe PM2.5 NAAQS, prepared by the Innovative Strategies and Economics Group, Office ofAir Quality Planning and Standards, Research Triangle Park, N.C., April 24, 2003.

1. NationalTechnology Transfer AdvancementAct

Section 12(d) ofthe National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104- 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary

consensus standards are technical standards (e.g., materials specifications, testmethods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when EPA decides notto use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not consider the use ofany VCS.

K. Congressional ReviewAct The Congressional Review Act, 5 U.S.C. 801 etseq., as addedby the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rulemay take effect, the Agency promulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. The 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 ofthe United States prior to 

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### 21151 publication ofthe rule inthe Federal 

### Register.

L.JudicialReview

Section 307(b)(1) ofthe CAA indicates which Federal Courts ofAppeal have

venue for petitions ofreview offinal actions by EPA. This section provides, in part, that petitions for review mustbe filed in the Court ofAppeals for the District ofColumbia Circuit: (i) When the EPA action consists of"nationally applicable regulations promulgated, or final actions taken,by the Administrator," or (ii)when such action is locally orregionally applicable, if "such action isbased on a determination ofnationwide scope or effect and ifin taking such action the. Administrator finds and publishes that 'such action is based on such a determination."

This action making afinding offailure to submit related to the section 1.10(a)(2)(D)(i) requirements related to the 8-hour ozone and thePM2.5 NAAQS is "nationally applicable" within the meaning ofsection 307(b)(1).

For the same reasons, the Administrator also is determining that the requirements related to the finding offailure to submit related to section 110(a)(2)(D)(i) is ofnationwide scope and effect forthe purposes of section 307(b)(1). This is particularly appropriate because in the report on the .1977 Amendments that revised section 307(b)(1) ofthe CAA, Congress noted that the Administrator's determination that an action is of"nationwide scope

or effect" would be appropriate for any action that has "scope oreffect beyond

a singlejudicial circuit." H.R. Rep. No. 95-294 at 323, 324, reprintedin 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect ofthis rulemaking extends to

.numerousjudicial circuits since the findings offailure to submit apply to all

areas ofthe country. In these circumstances, section 307(b)(1) and its legislative history call for the Administrator to find the ruleto be of "nationwide scope oreffect" andfor

venue to be in theD.C. Circuit.

Thus, any petitions forreview ofthis action related to a findings offailure to submit related to the requirements of section 110(a)(2)(D)(i) ofthe CAA must be filed in the Court ofAppeals forthe District-ofColumbia Circuit within 60 days from the date final action is published in the Federal Register.

List ofSubjects in 40 CFRPart52

Air pollution control. Dated: March 10, 2005. Stephen L. Johnson, ActingEPA Administrator. [FR Doc. 05-5319 Filed 4-22-05; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

.AGENCY

40 CFR Part 52 [R09-OAR-2005-CA-01-; FRL-7900-3]

Revisionto the California State Implementation Plan, Monterey Bay Unified Air Pollution Control District and San Joaquin Valley UnifiedAir Pollution Control District
AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule.
SUMMARY: EPA is.taking direct final action to approve revisions to the Monterey Bay Unified AirPollution Control District (MBUAPCD) and San Joaquin Valley Unified AirPollution Control District (SJVUAPCD) portions of the California State Implementation Plan (SIP). The revisions concern the emission ofparticulate matter (PM-10) from open outdoor burning and from incinerator burning. We are approving local rules thatregulate these emission

sources under the Clean AirAct as amended in 1990'(CAA orthe Act). DATES: This rule is effective on June 24, 2005 without further notice, unless EPA receives adverse comments by May 25, 2005. Ifwe receive such comments, we willpublish a timely withdrawal in the Federal Register to notify the public that thisrule willnot take effect. ADDRESSES: Submit comments, identified by docket number R09-OAR2005-CA-01, by one ofthe following methods:

1.Agency Web site: http:// docket.epa.govlrmepubl.EPA prefers receiving comments through this electronic public docket and comment system. Follow the on-line instructions
to.submit comments.

2. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions.

3.E-mail: steckel.andrew@epa.gov. 4. Mail ordeliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

Instructions: All comments will be included inthe public docket without change and may bemade available onlineathttp://docket.epa.gov/rmepub/, including any personal information provided, unless the comment includes Confidential Business Information _(CBI)

or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should notbe submitted through the agency Web site, eRulemaking portal, or e-mail. The agency Web site and eRulemaking portal are "anonymous access" systems, and EPA will not know your identity orcontact information unless youprovide it in the body of your comment. Ifyou send e-mail directly to EPA, your e-mail address will be automatically captured and included as part ofthe public comment. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment.

Docket:The index to the docket for this action is available electronically at http://docket.epa.gov/rmepub and in hard copy atEPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents inthe docket are listed inthe index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may notbe publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed inthe FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Al Petersen, RulemakIng Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 947-4118, petersen.alfred@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.

Table ofContents I.The State's Submittal

A. What Rules Did the State Submit? B.Are There OtherVersions ofThese

Rules? C. What Are the Purposes ofthe Submitted

Rule Revisions? ILEPA's Evaluation and Action

A.How Is EPA Evaluating the Rule and

Rule Revisions? B.Dothe RuleRevisions Meet the

Evaluation Criteria? C.Public Comment and FinalAction II. Statutory andExecutive OrderReviews

I. The State's Submittal

A. WhatRulesDidthe StateSubmit?

Table 1 lists the rules and dates that MBUAPCD and SJVUAPCD revised the local rules and when they were submitted to EPA by the California Air Resources Board (CARB). 

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TABLE 1.-SUBMITTED RULES

Local agency Rule No. Rule title Revised orAmended Submitted

MBUAPCD

......................... 408 Incinerator Burning

......................................................... 09/15/04 Revised

................ 01/13/05 MBUAPCD

......................... 438 Open Outdoor Fires

....................................................... 09/15/04 Revised

................ 01/13/05 SJVUAPCD

........................ 4103 Open Burning

................................................................. 09/16/04 Amended

.............. 01/13/05

On February 16, 2005, the submittal ofJanuary 13, 2005 was found to meet the completeness criteria in40 CFR part 51, appendix V, which mustbe met before formal EPA review.

B.Are There OtherVersions ofThese Rules?

We approved a version ofMBUAPCD Rule 408 into the SIP on January 31, 2003 (68 FR 4929) and Rule 438 on January 12, 2004 (69 FR 1682). We approved aversion ofSJVUAPCD Rule 4103 into the SIP on February 27, 2002 (67 FR 8894).

C. WhatAre thePurposesofthe SubmittedRuleRevisions?

PM-10 harms human health and the environment. Section 110(a) oftheCAA requires states to submit regulations that control PM-10 emissions.

The purposes ofthe submitted rule or rule revisions are described below:

e MBUAPCD Rule 408 deletes the exemption ofparagraph 1.3.1 allowing incinerator burning ofyard trimmings and brush in an area not served weekly by a solid waste disposal service.

o MBUAPCD Rule 438 deletes the exemption ofparagraph 1.3.1.4 for burning household rubbish at one-and two-family homes in an areanot served weekly by a solid waste disposal service; deletes the exemption of paragraph 1.3.1.5 forburning household rubbish at one- and two-family homes in San Benito County; and deletes the exemption ofparagraph 1.3.1.6.1 for burning cardboard and non-glossy paper in a non-iicorporated area.

* SJVUAPCD Rule 4103 changes paragraph 4.2.2 into paragraph 5.9, Diseased Materials, which adds the restrictions that the applicant obtain a conditional, non-transferable permit describing the material to be burned; that the applicant not have a burning violation in the lastthree years; and that the county agricultural commissioner determine there is no feasible alternative to burning to prevent disease

orpests to cause a quantifiable reduction on the yield ofcrops, animals,

orfowl.

The TSD has more information about these rules. 

### II. EPA's Evaluation andAction
A. HowIsEPAEvaluatingtheRule and RuleRevisions?

Generally, SIP rules mustbe enforceable (see section 110(a) ofthe CAA), mustrequire BestAvailable Control Measures (BACM) including, -BestAvailable Control Technology (BACT), for significant source categories

ormajor sources in serious PM-10 nonattainment areas (see section 189(b)), must require Reasonably Available Control Measures (RACM) including, Reasonably Available Control Technology (RACT), for significant

source categories ormajor sources in moderate PM-10 nonattainment areas (see section 189(a)), and must notrelax

.existing requirements (see sections

110(1) and 193). MBUAPCD is a PM-10 maintenance attainment area and need not fulfill the requirements ofBACM/ BACT or RACM/RACT. SJVUAPCD is a serious PM-10 nonattainment area and must fulfil the requirements ofBACM/ BACT. See 40 CFR part 81.

The following guidance documents

were used forreference:

* Requirements forPreparation, Adoption,andSubmittalof ImplementationPlans,U.S. EPA, 40 CFR part 51.

e PM-1OGuidelineDocument,EPA452/R-93-008.

B. DotheRuleRevisionsMeetthe EvaluationCriteria?

Webelieve that MBUAPCD Rules 408 and 438 and SJVUAPCD Rule4103 are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and the requirements of BACM/BACT. The TSD hasmore
• information on our evaluation.

C.PublicCommentandFinal Action
As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted SIP revisions because we believe they fulfill all relevant requirements. We do not thinkanyone will object to this, sp we are finalizing the approval without proposing it in advance. However, inthe Proposed Rules section ofthis Federal Register,

we are simultaneously proposing approval ofthe same submitted SIP revision. If wereceive adverse
comments by May 25, 2005, we will publish atimely withdrawal inthe 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. Ifwe do not receive timely adverse comments, the direct final approval will be effective without further notice on June 24, 2005. This will incorporate MBUAPCD Rules 408 and 438 and SJVUAPCD Rule 4103 into the federally enforceable SIP.

Please note that ifEPA receives adverse comment on an amendment, paragraph, or section ofthis direct final rule and ifthat provision may be severed from the remainder ofthe rule, EPA may adopt as final those provisions ofthe rule that are notthe subject of an adverse comment.
III. Statutory and Executive Order Reviews

.

UnderExecutive 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 ofManagement and Budget. For thisreason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (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 ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601 etseq.). Because this rule approves pre-existing requirements under state law and does notimpose any additional enforceable dutybeyond 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 nothave tribal implicationsbecause itwill nothave a substantial direct effect on one ormore Indian tribes, on the relationship between the Federal Government and Indian tribes, oron the distribution of power and responsibilities between the Federal Government and Indian tribes, 

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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 ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a staterule implementing a Federal standard, and does not alter the relationship orthe distribution ofpower and responsibilities established in the Clean AirAct. This rule also is not subject to Executive Order 13045 "Protection ofChildren from Environmental Health Risks and Safety Risks" (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, inthe absence ofa 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 itreviews a SIP submission, to use VCS in place ofa SIP submission that otherwise satisfies theprovisions of the Clean Air Act. Thus, the requirements of section 12(d) ofthe 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 ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501 etseq.).

The Congressional Review Act, 5 U.S.C. section 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before arule may take effect, the agency promulgating the rule must submit a rule report, which includes acopy of the rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe 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 5U.S.C. section 804(2).

Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of this action mustbe filed in the United States Court ofAppeals for the appropriate circuitby June 24, 2005. Filing apetition forreconsideration by the Administrator ofthis final rule does
not affect the finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which apetition forjudicial 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 ofSubjects in 40 CFR Part52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping'equirements.

Dated: March 29, 2005. Wayne Nastri, Regional Administrator, RegionIX.

.aPart 52, chapter I,title40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

n 1. The authority citation forpart 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart F--California

a 2. Section 52.220 is amendedby adding paragraph (c)(335) to read as follows:
§52.220 Identification ofplan.

* * * * *

(c) * * * (335}New and amended regulations forthe following APCDs were submitted

on January 13, 2005, by the Governor's designee.

(i) Incorporation by reference. (A)Monterey Bay Unified Air Pollution Control District.

(1)Rule 408, adopted on September 1, 1974 and revised on September 15, 2004.

(2)Rule 438, adopted on April 16, 2003 and revised on September 15, 2004.

(B) San Joaquin Valley Unified Air Pollution Control District.

(1)'Rule 4103, adopted on June 18, 1992 and amended on September 16, 2004.

* * * * *€ [FRDoc. 05-8188 Filed 4-22-05; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 261 [R5-MIECOS-01;_SW-FRL-7902-9]

Hazardous Waste Management System; Identificationand Listingof Hazardous Waste Final Exclusion
AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: TheEPA (also, "the Agency"

or "we" inthis preamble) is granting a petition to exclude (or "delisf") wastewater treatment plant sludge from conversion coating on aluminum generated by the Ford Motor Company Dearborn Truck Assembly Plant (DTP) in Dearborn, Michigan from the list of hazardous wastes.

Today's action conditionally excludes the petitioned waste from the requirements ofhazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when disposed -of in a lined subtitle D landfill which is permitted, licensed, or registered by a State to manage industrial solid waste. The exclusion

was proposed on March 7, 2002 as part ofan expedited process to evaluate this waste under a pilot project developed with the Michigan Department of Environmental Quality (MDEQ). The rule also imposes testing conditions for waste generated inthe future to ensure that this waste continues to qualify for delisting. DATES: This rule is effective on April 25, 2005. ADDRESSES: EPA has established a docketfor this actionunder Docket ID No. R5-MIECOS-01. All documents in the docket are listed inthe index. Publicly available docket materials are available inhard copy at the U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604. This Docket Facility is open from 8 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. The public may copy material from the regulatory docket at $0.15 perpage. ContactJudy Kleiman for appointments
atthe address above, by email at kleiman.judy@epa.govorby calling (312) 886-1482.
FOR FURTHER INFORMATION CONTACT: For technical information concerning this document, contact Judy Kleiman, Waste, Pesticides, and Toxics Division, (Mail Code: DW-8J), U.S. EPA Region 5, 77W. Jackson Blvd., Chicago, IL 60604; telephone number: (312) 886-1482; fax number: (312) 353-4788"e-mail address: kleiman.judy@epa.gov. 

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SUPPLEMENTARY INFORMATION: The information in this section is organized

as follows:

I.

Background A. What is a delisting petition?
B.What regulations allow a waste tobe

delisted? C. What waste did DTP petition to delist? II. The Expedited Process for Delisting

A. Whywas the expedited process

developed for this waste? B. What is the expedited process to delist

F019? III. EPA's Evaluation ofThis Petition

A. What information was submitted in

support ofthispetition? B. How did EPA evaluate the information

submitted? IV.Public Comments Received on the Proposed Expedited Process A. Who submitted comments on the

proposed rule? B.Comments received andresponses from

EPA .V.FinalRule Granting These Petitions

A. What decision isEPA finalizihg? B.What are theterms ofthis exclusion? C.When is the delisting effective? D. How doesthis action affect the states? VI. Statutory andExecutive Order Reviews

I. Background

A. WhatIs aDelisting Petition?
A delisting.petition is a request from

a generator to exclude waste from the list ofhazardous wastes under RCRA regulations. In a delisting petition, the petitionermust show that waste generated at a particular facility does
notmeet any ofthe criteria for which EPA listed the waste as set forth in title 40 Code ofFederal Regulations (40 CFR) 261.11 and thebackground document for the waste.Inaddition,apetitioner must demonstrate that the waste does
not exhibit any ofthe hazardous waste characteristics (thatis, ignitability, reactivity, corrosivity, and toxicity) and
mustpresent sufficient information for

us to decide whether factors other than those forwhich the waste was listed warrant retaining it as a hazardous
waste. (See40 CFR 260.22, 42 U.S.C. 6921(f)and the background documents for a listed waste.)

Generators remain obligated under RCRA to confirm that their waste remains nonhazardous based on the hazardous waste characteristics even if EPA has "delisted" the wastes and to

ensure that future generated wastes meet the conditions set.
B. WhatRegulations Allow a Waste To BeDelisted?

Under 40 CFR 260.20,260.22,and 42 U.S.C. 6921(f),facilities may petition' the EPA to remove their wastes from hazardous waste control by excluding them from the lists ofhazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision ofparts 260 through 266, 268, and 273 of40' CFR. 40 CFR 260.22 piovides a generator the opportunity to petition the Administrator to exclude awaste from the lists ofhazardous wastes on a "generator specific" basis.

C. What WasteDidDTPPetitionTo Delist?

DTP petitioned to exclude wastewater treatment sludge resulting from a zinc phosphating conversion coating process

on truck bodies which have aluminum components. When treated, the wastewater from the conversion coating

on aluminum results in a listed waste, F019. The wastewater from the phosphating process entering the
wastewater treatment plant combines with wastewaters from other operations
at the plant including cleaning and rinsing operations, electrocoating processes, vehicle leak testing, and floor scrubbing. Wastewaters include alkaline cleaners, surfactants, organic detergents, rinse conditioners from cleaning operations and overflows and rinse water from electrocoating. All sludge from the treatment ofthis wastewater is regulated as RCRA hazardous waste F019.
II. The Expedited Process for Delisting

A. Why Was the ExpeditedProcess Developed for This Waste?

Automobile manufacturers are adding aluminum components to automobile and light truck bodies. When aluminum is conversion coated in a zinc phosphating process in automobile assembly plants, the resulting wastewater treatment sludge mustbe managed as EPA hazardous waste F019. F019 wastes generated at other auto assembly plants using the same zinc phosphating and wastewater treatment processes have been shown to be nonhazardous.

This similarity ofmanufacturing processes and the resultant wastes provides an opportunity for the automobile industry to be more efficient in submifting delisting petitions and for EPAto be more efficient in evaluating them. Efficiency may be gained and time saved by using a standardized approach forgathering, submitting and evaluating data. Therefore, EPA, in conjunction with MDEQ; developed a pilot project to expedite the delisting process, This approach to making delisting determinations for this group offacilities is efficient while still being consistent with current laws and regulations and protective ofhuman health and the environment.

By removing regulatory controls under RCRA, EPA is facilitating the use ofaluminum in cars. EPA believes that incorporating aluminum in cars will be advantaeous to the environment since lighter cars are capable ofachieving better fuel economy.
B. WhatIs theExpeditedProcessTo DelistF01 9?
The expedited process to delist F019 is an approach developed through a Memorandum ofUnderstanding (MOU) with MDEQ for gathering and evaluating data in support ofmultiple petitions from automobile assembly plants. The expedited delisting process is applicable
to wastes generated by automobile and light truck assembly plants in the State ofMichigan which use a similar manufacturing process and generate similar F019 waste.

Based on available historical data and other information, the expedited process identified 70 constituents which might be ofconcern inthe waste and provides that-the F019 sludge generated by automobile assembly plants may be delisted ifthe levels ofthe 70 constituents do not exceed the allowable levels established foreach constituent in this rulemaking. The maximum annual quantity ofwaste generated by any single facility which may be covered by an expedited delisting is 3,000 cubic yards. Delisting levels were also proposed for smaller quantities of1,000 and 2,000 cubic yards.
III.EPA's Evaluation ofThis Petition

A. WhatInformationWas Submitted in SupportofThisPetition?

DTP submitted certification that its process was the same as the process described inthe MOU between Region 5 and MDEQ. See 67 FR 10341, March 7,2002. The facility also asserted that its waste does not meetthe criteria for which F019 waste was listed and there

are no other factors which might cause. the waste to be hazardous.

To support its exclusion demonstration, Ford Dearborn collected six samples representing waste generated over a seven week period.' Each sample was analyzed for: (1) Total analyses of 692 constituents ofconcern;

'Because the plant was shut downfrom July4- 11, 2004, the time necessary to collect 6samples

was extendedto 7weeks.

2 The expedited delisting project originally required analysis of70 constituents. However, the analysis ofacrylamide required extreme methods to achieve adetection level at the level ofcoflcern. Since no acrylamide was detected in any sample analyzed bythe original facilities participating in 

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(2)Toxicity Characteristic Leaching Procedure (TCLP), SW-846 Method 1311, analyses of 69 constituents of
concern; (3) oil and grease; and (4) total constituent analyses for sulfide and cyanide. In addition, the pH ofeach sample was-measured and a determination was made that the waste

was not ignitable, corrosive orreactive (see 40 CFR 261.21-261.23). With the exception ofthe minor change noted here, all sampling and analyses were done inaccordance with the sampling and analysis plan which is an appendix to the MOU and is available in the docket for this rule. Instead of sampling directly from six different roll-offboxes which would have required multiple sampling events or long-term storage of full roll-offboxes, DTP collected representative amounts ofsludge each week from June 8 through July 27, 2004. The sludge foreach week was-placed in

a separate drum. OnJuly 27, 2004, composite and grab samples were collected from each ofthe six drums.

The maximum values ofconstituents detected in any sample ofthe waste and in aTCLP extract ofthat waste are summarized inthe following table. The data submitted included the appropriate QA/QC information validated by a third party.

Maximum observed concentration Maximum allowable Ccconcentration GW Constituent detected Total TCLP Total TCLP (ug/L) (mg/kg) (mg/L) (mg/kg) (mg/L)

Volatile Organic Compounds
formaldehyde

................................................ 13 0.64 700 80 1,400 n-butyl alcohol

................................. < 26 R < 0.5 R NA 230 4,000 toluene

....................................................................... < 0.5 0.0021 NA 60 1,000

Semivolatile Organic Compounds bis(2-ethylhexyl) phthalate

......................................... 1.9 <0.005 NA 0.09 1.5 p-cresol

.................................................................. :. < 1.5 0.042 NA 11 200 di-n-octylphthalate

...................................................... 1.9 0.003 NA 0.11 1.3 pentachlorophenol

...................................................... < 1.5 0.0045 3,000 30,009 0.15

Metals

arsenic

........... :

........................................................... < 50 < 0.02 8,000 0.3 5 barium

........................................................................ 1700 1.02 NA 100 2,000 chromium

................................................................... 49 < 0.05 NA 5 100 ,cobalt

.... ................................ 1.7 0.03 NA 70 2,000 lead

........................................................................... 36 < 0.1 NA 5 15 nickel

............ ............................. 2610 38.9 NA 90 800 silver

........................................................................... 288 < 0.05 NA

, 5 200 tin

........................................... 292 < 0.5 NA 700 20,000 vanadium

......................... i

.......................................... 226 0.02 NA 70 300 zinc

............................................................................. 14,200 27.4 NA 900 11,000

Miscellaneous corrosivity (pH)

..................... 2<x<12.5 NA Oil & grease

............................................................... 8020 NA NA sulfide

................... ......................... 36 See 40 CFR 261.23 NA

R-The numerical value is not useable." <-Not detected at the specified concentration. NA-not applicable. These levels represent the highest constituent cbncentration found in any one sample and do not necessarily represent the specific levels found in one sample.

B.HowDidEPA Evaluatethe InformationSubmitted?

EPA-comparedthe analytical results submitted by DTP to the maximum allowable levels calculated by the DRAS and set forth in the proposed rule (67 FR 10341, March 7, 2002). The maximum allowable levels for constituents detected inthe waste ora TCLP extract ofthe waste are summarized inthe table above, along with the observed levels.

the expedited delisting project, theAgency dfcided itwould notbe appropriate to require analysis for acrylamide.

3Inthe proposed rule, theallowable level for TCLPPCP was setat 0.004mg/L for participants The table also includes the maximum allowable levels in groundwater ata potential receptor well, as evaluated by the Delisting Risk Assessment Software (DRAS). These levels are the more conservative ofeither the Safe Drinking Water Act Maximum Contaminant Level (MCL) orthe health-based value calculated by DRAS based on the target

cancer risklevel of 10- 6

. For arsenic, the target cancer risk was set at 10- 4 in consideration ofthe MCL and the

generating 2,000cubic yards annually. This value

was based on child-dermal exposure to contaminated groundwater, butthe model was found to overestimate this exposure byusing an inappropriate exposure duration. This error inthe potential fornatural occurrence. The maximum allowable groundwater concentration and delisting level for arsenic correspond to a drinking water concentration less than onehalfthe current MCL of 10 igg/L.

EPA also used the DRAS program to estimate the aggregate caicer riskand hazard index for constituents detected inthe waste. The aggregate cancer-risk is the cumulative total ofall individual constituent cancer risks. The hazard

software has since been corrected. Using the correct exposure factors, the limiting pathway is adultdermal exposure to contaminated groundwater with

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index is a similar cumulative total of

non-cancer effects. The target aggregate

cancer riskis 1x10- 5 and the target hazard index is one. The wastewater treatment plant sludge atDTP met both ofthese criteria.
IV. Public Comments Received on the Proposed Exclusion
A. Who Submitted Comments on the Proposed Rule? The EPA received public comments

on the proposed notice published on March 7,2002 from Alliance of Automobile Manufacturers, Honda of America Mfg., Inc., Alcoa Inc., and The Aluminum Association. All commenters

were supportive ofthe proposal and suggested expanding the project and revising the listing.
B. CommentsReceivedandResponses FromEPA

(1) Comment:EPA shouldrevise the F019 listing to specify that wastewater treatment sludge from zinc phosphating operations is not within the scope ofthe listing. Datagathered as a result ofthe Expedited Delisting Project together with the available historical data, should provide enough data to fully characterize this waste and tojustify a revision ofthe listing.

EPA Response:The Agency is now considering revising the F019 listing. EPA is examining the data collected as
a result ofthis project, as well as past data, as abasis for a possible revision to the F019 listing.

(2) Comment:EPA should issue an interpretive rule clarifying that zinc phosphating operations are outside the scope of the F019 listing.

EPAResponse:An interpretive rule presents administrative and technical difficulties. A revision to the listing will require a rulemaking process. See response to comment (1) above.

(3) Comment:Automobile assembly fucilities outside ofMichigan would like to take advantage ofthe precedent set by this expedited delisting project to delist F019 generated by similar operations in other states andregions.

EPAResponse:The Agency believes that the expedited delisting procedures and requirements set forth in this proposal are appropriate for similar automotive assembly facilities outside the State ofMichigan, subject to the discretion ofthe regulatory agency (state

orregion).

(4) Comment:Alternatives to landfilling like recycling should be allowed within the petition process.

EPAResponse:The Agency does not delist wastes which are recycled because the model used to estimate risk is based only on disposal ofwaste in a subtitle D landfill. The risk which might. result from any other scenario is not evaluated by the delisting program. However, the Agency encourages safe recycling, and variances and exclusions from the definition ofsolid and hazardous wastes are available for wastes which are recycled.

(5) Comment:Analytical methods should be specified inthe pre-approved

common sampling plan instead of requiring each participant to submit a site-specific list ofmethods.

EPAResponse:Allowing the petitioner to choose an analytical method which meets the data quality objectives specific to the delisting petition provides flexibility. Data quality objectives will vary depending

onthe allowable levels which are a function ofthe volume ofpetitioned waste. The Agency believes that the flexibility ofperformance based methods results inbetter data.

(6) Comment:Detection limits should not berequired prior to sampling since they cannot be adequately predicted without a way to estimate matrix effects.

EPAResponse:Although matrix effects cannot be assessed in advance of laboratory analysis, a laboratory should be able to provide estimated detection levels and reporting levels which are lower than, or at least equal to, the allowable delisting level for each constituent.

(7) Comment:Since the process generating the sludge is extremely stable, verification sampling should be conducted on an annual, instead of quarterly, basis. The requirement that any process change be promptly reported and the exclusion suspended untilEPA gives written approval that the delisting can continue is an adequate safeguard justifying the decrease in sample event frequency.

EPA Response:Verification data submitted in conjunction with past delistings ofthis waste have shown significant variation on a quarterly basis

over longerperiods oftime. Annual sampling would not detect such variations. Once enough verification data are collected to support a statistical analysis, a change in the frequency of verification sampling and/or sampling parameters may be considered.

(8) Comment:The final Federal Register should make it clear that assembly plants that manufacture light trucks are also eligible forthe project.

EPAResponse:Today's notice specifically defines eligible facilities as inclusive of manufacturers oflight trucks.

(9) Comment:The table ofmaximum allowable levels iA the March 7,2002 proposed rule contains errors in the columns for vinyl chloride.

EPAResponse:The error was caused by a missing space ortab inthe table. The maximum allowable concentrations proposed for 2,000 cubic yards ofwaste should have been 115 mg/kg total and 0.00234 mg/L TCLP.

V. Final Rule GrantingThese Petitions

A. WhatDecisionIs EPA Finalizing?

Today the EPA is finalizing an exclusion to conditionally .delistan annual volume of2,000 cubic yards of wastewater treatment plant sludge generated at DTP from conversion coating on aluminum.

On March 7, 2002, EPA proposed to exclude or delist this wastewater treatment sludge from the list of hazardous wastes in40 CFR 261.31 and accepted public comment on the proposed rule (67 FR 10341). EPA considered all comments received, and

we believe that this waste should be excluded from-hazardouswaste control.

B. WhatAre the TermsofThis Exclusion?

DTP must dispose ofthe waste in a lined subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial solid waste. DTP must obtain and analyze oil a quarterly basis arepresentative sample ofthe waste in accordance with the waste analysis plan. DTP must verify that the concentrations ofthe constituents ofconcern do not exceed the allowable levels set forth in this exclusion.' The list ofconstituents for verification is a subset ofthose initially tested for and is based on the

occurrence ofconstituents atthe majority offacilities participating in the expedited process to delist F019 and the concentrations detected relative to the allowable levels.

This exclusion applies only to a maximum annual volume of2,000 cubic yards and is effective only ifall conditions contained in thisrule are satisfied.

C. When IstheDelisting Effective?
This rule is effective April 25, 2005. The Hazardous and Solid Waste Amendments of1984 amended section 3010 ofRCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d). 

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D.HowDoes ThisActionAffect the
States?

Today's exclusion is being issued under the Federal RCRA delisting program. Therefore, only states subject
to Federal RCRA delisting provisions would be affected. This exclusion is not effective in states which have received authorization to make their own delisting decisions. Also, the exclusion may not be effective in states having a dual system that includes Federal RCRA requirements and their own requirements. EPA allows states to impose their own regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits afederally issued exclusion from taking effect in the state. Because a dual system (thatis, both Federal (RCRA) and state (non-RCRA) programs) may regulate apetitioner's waste, we urge petitioners to contact the
state regulatory authority to establish the status oftheir wastes under the state law. If aparticipating facility transports the petitioned waste to ormanages the
waste in any state with delisting authorization, it must obtain a delisting from that statebefore it can manage the
waste as nonhazardous in the state.
VI. Statutory andExecutive Order Reviews

Under Executive Order 12866, "Regulatory Planning and Review" (58 FR 51735, October 4, 1993), this rule is notofgeneral applicability and therefore is not a regulatory action subject-to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501 etseq.) because it applies to a particular facility only. Because thisrule is ofparticular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions ofthe Regulatory Flexibility Act (5 U.S.C. 601 etseq.), or to sections 202, 204, and 205 ofthe Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.L. 104-4). Because this rule will affect only a particular facility, itwill not significantly oruniquely affect small governments, as specified in section 203 ofUMRA.

Because this rule will affect only a particular facility, this final rule does
not have federalism implications. It will
nothave substantial direct effects on the States, on the relationship between the national government and the States, or

on the distribution ofpower and responsibilities among thevarious levels ofgovernment, as specified in Executive Order 13132, "Federalism," (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply
to this rule. Similarly, because this rule will affect only a particular facility, this final rule does nothave tribal implications, as specified inExecutive Order 13175, "Consultation and Coordination with Indian Tribal Governments" (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 -does notapply to this rule.

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 as defined in Executive Order 12866, and because the Agency does nothave reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this beliefis that the Agency used the DRAS program, which considers health and safety risks to infants and children, to calculate the maximum allowable concentrations for this rule.

This rule is not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355 (May 22, 2001)), because it is
not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

- As required by section 3 ofE~ecutive

Order 12988, "Civil Justice Reform," (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.

The Congressional Review Act, 5 U.S:C. 801 et seq., as added by the S/mall Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore arule may take effect, the agency promulgating the rule must submit arule report which includes a copy ofthe rule to each House ofthe Congress and to the Comptroller General ofthe United States. Section 804 exempts from section 801 the following types ofrules (1)rules ofparticular applicability; (2) rules relating to agency management-orpersonnel; and (3)rules ofagency organization, procedure, or practice that do not substantially affect the rights or obligations ofnon-agency parties 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.
List ofSubjects in 40 CFR Part261

Environmental protection, Hazardous waste, Recycling, and Reporting and recordkeeping requirements.

Authority: Sec. 3001() RCRA, 42 U.S.C. 6921(f).

Dated: April 14, 2005. Bruce Sypniewski, ActingDirector,Waste,PesticidesandToxics Division.

mFor thereasons set out inthe preamble, 40 CFR part 261 is proposed to be amended as follows:

PART 261-IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

m1.Theauthority citation forpart 261 continues to read as follows:

Authority:42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

* 2.InTable 1ofappendix IX ofpart 261 the following wastestreams are added in alphabetical orderby facility to read as follows: 

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Appendix IX to Part261-Wastes

Excluded Under §§ 260.20 and 260.22

TABLE 1.-WASTES EXCLUDED FROM NON-SPECIFICSOURCES
Facility Address Waste description

Ford Motor Company, Dearborn Truck As- Dearborn, Michigan

............

sembly Plant. Wastewater treatment plant sludge, F00, that is generated by Ford Motor Company at the Dearborn Truck.Asembly Plant at a maximum annual rate of 2,000 cubic yards per year. The sludge must be disposed of in a lined landfill with leachate collection which is licensed, permitted, or otherwise authorized to accept the delisted wastewater treatment sludge in accordance with 40 CFR part 258. The exclusion becomes effective as of April 25, 2005. 1. Delisting Levels: (A) The concentrations in a TCLP extract of the

waste measured in any sample may not exceed the following levels (mg/L): antimony-0.7; arsenic-0.3; barium--100; cadmium-0.5; chromium-5; lead-5; nickel-90; selenium-i; thallium--0.3; zinc-900; p-cresol-11; di-n-octyl phthlate-0.11; formaldehyde80; and pentachlorophenol-0.009. (B) The total concentration measured in any sample may not exceed the following levels (mg/ kg): mercury-9; and formaldehyde-700.

- 2. Quarterly Verification Testing:To verify that the waste does not exceed the specified delisting levels, Dearborn Truck Assembly Plant must collect and analyze one representative sample of the waste
on a quarterly basis. 3. Changes in Operating Conditions: Dearborn Truck Assembly Plant

must notify the EPA in writing if the manufacturing process, the chemicals used in the manufacturing process, the treatment process, or the chemicals used in the treatment process change significantly. Dearborn Truck Assembly Plant must handle wastes generated after the process change as hazardous until it has demonstrated that the wastes continue to meet the delisting levels and that no new hazardous constituents listed in appendix VIII of part 261 have been introduced and it has received written approval from EPA. 4. Data Submittals: Dearborn Truck Assembly Plant [Redln Off] must

submit the data obtained through verification testing or as required by other conditions of this rule to both U.S. EPA Region 5, Waste Management Branch (DW-8J), 77 W. Jackson Blvd., Chicago, IL 60604 and MDEQ, Waste Management Division, Hazardous Waste Program Section, at P.O. Box 30241, Lansing, Michigan 48909. The quarterly verification data and certification of proper disposal must be submitted annually upon the anniversary of the effective date of this exclusion. Dearborn Truck Assembly Plant must compile, summarize and maintain on site for a minimum of five years records of operating conditions and analytical data. Dearborn Truck Assembly Plant must make these records available for inspection. All data must be accompanied by a signed copy of the certification statement in 40 CFR 260.22(i)(12). 5. Reopener Language-(a) If, anytime after disposal of the delisted

waste, Dearborn Truck Assembly Plant possesses or is otherwise made aware of any data (including but not limited to leachate data

or groundwater monitoring data) relevant to the delisted waste indicating that afiy constituent is at a level in the leachate higher than the specified delisting level, or is in the groundwater at a concentration higher than the maximum allowable groundwater concentration in paragraph (e), then Dearborn Truck Assembly Plant must report such data, in writing, to the Regional Administrator within 10 days of first possessing or being made aware of that data. (b) Based on the information described in paragraph (a) and any

other information received from any source, the Regional Administrator will make a preliminary determination as to whether the reported information requires Agency action to protect human health
or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. 

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TABLE 1.-WASTES EXCLUDED FROM NON-SPECIFIC SOURCES-Continued
Facility Address Waste description
(c) Ifthe Regional Administrator determines thatthe reported information does require Agency action, the Regional Administrator will notify Dearborn Truck Assembly Plant inwriting of the actions the Regional Administrator believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and astatement providing Dearborn Truck Assembly Plant with an opportunity to present information as to why the proposed Agency action isnot necessary orto suggestan alternative action. Dearborn Truck Assembly Plant shall have 30 days from the date of the Regional Administrator's notice to present the information. (d) Ifafter 30 days the Dearborn Truck Assembly Plant presents no

further information, the Regional Administrator will issue a final written determination describing the Agency actions that are necessary to protect human health or the environment. Any required action described in the Regional Administrator's determination shall become effective immediately, unless the Regional Administrator providesotherwise. (e) Maximum Allowable Groundwater Concentrations (gg/L): antimony-6; arsenic-5; barium-2,000; cadmium-5; chromium100; lead-i5; nickel-800; selenium-50; thallium-2; tin-20,000; zinc-11,000; p-Cresol-200; Di-n-octyl phthlate-1.3; Formaldehyde-1,400; and Pentachlorophenol-0.15.

[FR Doc. 05-8189 Filed 4-22-05; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 64 (Docket No. FEMA-7776]

Listof Communities Eligible forthe Sale of Flood Insurance

AGENCY: Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security. ACTION: Final rule.

SUMMARY: This rule identifies communities participating in the National Flood Insurance Program (NFIP) and suspended from the NFIP. These communities have applied to the program and have agreed to enact certain floodplain management

measures. The communities' participation in the program authorizes the sale offlood insurance to owners of property located inthe communities listed. DATES: Effective Dates:The dates listed under the column headed Effective Date ofEligibility.. ADDRESSES: Flood insurance policies for property located in the communities listed can be obtained from any licensed property insurance agent orbroker serving the eligible community, or from the NFIP at: (800) 638-6620.
FOR FURTHER INFORMATION CONTACT: Michael M. Grimm, Mitigation Division, 500 C Street, SW.; Room 412, Washington, DC 20472, (202) 646-2878.

SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management

measures aimed atprotecting lives and

new construction from future flooding. Since the communities on the attached listhave recently entered the NFIP, subsidized flood insurance is now available for property inthe community.

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in some of these communities by publishing a' FloodHazard Boundary Map (FHBM) or FloodInsurance Rate Map (FIRM). The date ofthe flood map, if onehas been published, is indicated inthe fourth column ofthe table. Inthe communities listed where a flood map has been published, Section 202 ofthe Flood. DisasterProtection Act of 1973, as amended, 42 U.S.C. 4016(a), requires the purchase offlood insurance as a condition ofFederal or federally related financial assistance for acquisition or construction ofbuildings inthe special flood hazard areas shown on the map.

The Administrator finds that delayed effective dates would be contrary to the public interest and that notice and public procedure under 5 U.S.C. 553(b)

are impracticable and unnecessary.

National EnvironmentalPolicyAct. This ruleis categorically excluded from the requirements of44 CFRpart 10, Environmental Considerations. No environmental impact assessment has been prepared.

RegulatoryFlexibility Act. The Administrator certifies that this rule will not have a significant economic -impacton a substantial number ofsmall entities in accordance with the Regulatory Flexibility Act, 5U. S. C. 601
etseq.,because the rule creates no additional burden, but liststhose communities eligible forthe saleof flood insurance.

RegulatoryClassification. This final rule is nota significant regulatory action under the criteria ofsection 3(f)of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork ReductionAct. This rule does not involve any collection of information forpurposes ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq.

Executive Order12612,Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp., p. 252.

Executive Order12778, CivilJustice Reform. This rule meets the applicable standards ofsection 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp., p. 309.
List ofSubjects in44 CFR Part 64

Flood insurance, Floodplains. 

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