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###### Environmental Protection Agency

          - 40 CFR Part 62
          - [EPA-R03-OAR-2010-0771; FRL-9233-4]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Direct final rule.

# SUMMARY:

EPA is taking direct final action to approve the State of Delaware's negative declaration and request for EPA withdrawal of its section 111(d)/129 plan (the plan) approval for HMIWI units.

# DATES:

                        This rule is effective January 31, 2011 without further notice, unless EPA receives adverse written comment by December 30, 2010. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the                         **Federal Register**                         and inform the public that the rule will not take effect.                    

# ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2010-0771 by one of the following methods:

                        A.                         *http://www.regulations.gov.*                         Follow the on-line instructions for submitting comments.                    

                        B.                         *E-mail: wilkie.walter@epa.gov.*

                        C.                         *Mail:*                         EPA-R03-OAR-2010-0771, Walter K. Wilkie, Associate Director, Air Protection Division, Office of Air Monitoring and Analysis, Mailcode 3AP40, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.                    

                        D.                         *Hand Delivery:*                         At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.                    

*Instructions:*                         Direct your comments to Docket ID No. EPA-R03-OAR-2010-0771. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at                        *http://www.regulations.gov,*                         including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through                         *http://www.regulations.gov*                         or e-mail. The                         *http://www.regulations.gov*                         Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through                         *http://www.regulations.gov,*                         your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.                    

*Docket:*                         All documents in the electronic docket are listed in the                         *http://www.regulations.gov*                         index. Although listed in the index, some information is not publicly available,                         *i.e.,*                         CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.                               ( print page 73968)                            Publicly available docket materials are available either electronically in                         *http://www.regulations.gov*                         or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.                    

# 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

                    The Delaware HMIWI plan and related state rule were approved by EPA in the April 14, 2000 edition of the                     **Federal Register**                     and codified in 40 CFR part 62, subpart I. (65 FR 20090). However, since that time, all three designated incinerator facilities in the plan inventory have been dismantled, according to the Delaware Department of Natural Resources and Environmental Control (DNREC). On October 6, 2009, EPA promulgated revised HMIWI emission guidelines under 40 CFR part 60, subpart Ce, that triggered the need for revised state plans. As a result, on June 17, 2010, the DNREC requested EPA's approval of its negative declaration and plan withdrawal request. The submitted negative declaration contains the name of each designated facility that was dismantled, and the year it was dismantled.                

## II. Final Action

EPA is approving the State of Delaware's negative declaration and request for EPA withdrawal of its plan approval for HMIWI units. DNREC has determined that there are now no designated facilities, subject to subpart Ce requirements, in its air pollution control jurisdiction. EPA accepts that determination. Accordingly, EPA is amending part 62 to reflect approval of the DNREC June 17, 2010 negative declaration and request for EPA withdrawal of the HMIWI plan approval. However, if an affected Delaware HMIWI unit is discovered in the future, all the requirements of the Federal Plan (including revisions or amendments), part 62, subpart HHH, will be applicable to the affected unit.

## 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 approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act (CAA). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.                

                    In reviewing section 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a 111(d)/129 plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/129 plan submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*).                

### 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the                     **Federal Register**                    . 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 31, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Delaware section 111(d)/129 negative declaration and request for EPA withdrawal of the HMIWI plan approval 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

Dated: November 17, 2010.

W.C. Early,

Acting Regional Administrator, Region III.

40 CFR part 62 is amended as follows:

      ( print page 73969)    

# 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. Section 62.1975 is amended by revising the section heading, designating the existing paragraph as (a) and adding paragraph (b) to read as follows: 

§ 62.1975 

* * * * *

(b) On June 17, 2010, the Delaware Department of Natural Resources and Environmental Control submitted a negative declaration and request for withdrawal of EPA's plan approval under paragraph (a) of this section.

§ 62.1976 

3. Section 62.1976 is removed. 

4. Section 62.1977 is revised to read as follows: 

§ 62.1977 

The effective date of the negative declaration and EPA withdrawal of the plan approval is January 31, 2011.

[FR Doc. 2010-30102 Filed 11-29-10; 8:45 am]

BILLING CODE 6560-50-P