[Federal Register Volume 71, Number 169 (Thursday, August 31, 2006)]
[Proposed Rules]
[Pages 51790-51792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7317]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Docket No. EPA-R02-OAR-2006-0615, FRL-8215-7]


Approval and Promulgation of Plans for Designated Facilities; New 
Jersey; Delegation of Authority

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes approval of 
a request from the New Jersey Department of Environmental Protection 
(NJDEP) for delegation of authority to implement and enforce the 
following three Federal plans: Hospital/Medical/Infectious Waste 
Incinerators (HMIWI); Municipal Solid Waste Landfills (MSW Landfills); 
and Small Municipal Waste Combustion Units (Small MWC). On August 15, 
2000, November 8, 1999, and January 31, 2003 respectively, EPA 
promulgated the Federal plans for HMIWI, MSW Landfills and Small MWCs 
to fulfill the requirements of sections 111(d)/129 of the Clean Air 
Act. The Federal plans impose emission limits and control requirements 
for existing affected facilities located in areas not covered by an 
approved and currently effective State plan.
    On May 15, 2006, NJDEP signed Memorandum of Agreements (MOAs) which 
act as the mechanism for the transfer of EPA authority to NJDEP. The 
intended effect is to approve MOAs that define the policies, 
responsibilities, and procedures by which the Federal plans for HMIWI, 
MSW Landfills and Small MWCs will be administered on behalf of EPA by 
NJDEP.

DATES: Comments must be received on or before October 2, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2006-0615, by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#e2b587908c8790ccb0839b8f8d8c86a2879283cc858d94"><span class="__cf_email__" data-cfemail="287f4d5a464d5a067a49514547464c684d5849064f475e">[email protected]</span></a>.
    <bullet> Fax: 212-637-3901.
    <bullet> Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
    <bullet> Hand Delivery: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2006-0615. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The 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 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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION: The Environmental Protection Agency (EPA) 
proposes to approve the New Jersey Department of Environmental 
Protection's (NJDEP's) request for

[[Page 51791]]

delegation of authority of three Federal plans. The following table of 
contents describes the format for this SUPPLEMENTARY INFORMATION 
section.

I. EPA's Proposed Action
    A. What Action Is EPA Proposing Today?
    B. Why Is EPA Proposing This Action?
    C. What Was Submitted by NJDEP and How Did EPA Respond?
    D. What Are the Clean Air Act Requirements?
    E. What Guidance Did EPA Use To Evaluate NJDEP's Delegation 
Request?
II. What Is EPA's Conclusion?
III. Statutory and Executive Order Revisions

I. EPA's Proposed Action

A. What Action Is EPA Proposing Today?

    EPA is proposing to approve NJDEP's request for delegation of 
authority to implement and enforce three Federal plans and to adhere to 
the terms and conditions prescribed in the Memorandum of Agreements 
(MOAs) signed between EPA and NJDEP, as further explained below. NJDEP 
requested delegation of authority of the following three Federal plans: 
Hospital/Medical/Infectious Waste Incinerators (HMIWI); Municipal Solid 
Waste Landfills (MSW Landfills); and Small Municipal Waste Combustion 
Units (Small MWC). The Federal plans were promulgated by EPA to 
implement emission guidelines pursuant to sections 111(d) and 129 of 
the Clean Air Act (the Act). The purpose of this delegation is to 
acknowledge NJDEP's ability to implement a program and to transfer 
primary implementation and enforcement responsibility from EPA to NJDEP 
for existing sources of HMIWI, MSW Landfills and Small MWC. While NJDEP 
is delegated the authority to implement and enforce the three Federal 
plans, nothing in the delegation agreement shall prohibit EPA from 
enforcing the Federal plans for HMIWI, MSW Landfills and Small MWC.

B. Why Is EPA Proposing This Action?

    EPA is proposing this action to:
    <bullet> Give the public the opportunity to submit comments on 
EPA's proposed action, as discussed in the ADDRESSES section;
    <bullet> Fulfill a goal of the Act to place State governments in 
positions of leadership for air pollution prevention and control; and
    <bullet> Allow NJDEP to implement and enforce Federal plans 
promulgated by EPA that implement emission guidelines pursuant to 
sections 111(d) and 129 of the Act.

C. What Was Submitted by NJDEP and How Did EPA Respond?

    On May 13, 2005, NJDEP submitted to EPA a request for delegation of 
authority from EPA to implement and enforce the Federal plans for 
existing HMIWI, MSW Landfills and Small MWC. EPA prepared the MOAs that 
define the policies, responsibilities, and procedures by which the 
Federal plans will be administered by both NJDEP and EPA, pursuant to 
the following: 40 CFR part 62, subpart HHH for HMIWI; 40 CFR part 62, 
subpart GGG for MSW Landfills; and 40 CFR part 62, subpart JJJ for 
Small MWC. The MOAs are the mechanism for the transfer of 
responsibility between EPA and NJDEP.
    On April 24, 2006, Alan J. Steinberg, EPA Region 2 Administrator, 
signed the three MOAs and forwarded them to NJDEP for signature. On May 
15, 2006, Lisa P. Jackson, NJDEP Commissioner, signed the MOAs, thereby 
agreeing to the terms and conditions of the MOAs and accepting 
responsibility to implement and enforce the policies, responsibilities 
and procedures of the Federal plans for HMIWI, MSW Landfills and Small 
MWC. The transfer of authority to NJDEP became effective on May 15, 
2006.

D. What Are the Clean Air Act Requirements?

    Sections 111(d) and 129 of the Act require states to submit plans 
to control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities and MSW Landfills (designated facilities) 
whenever standards of performance have been established under section 
111(b) for new sources of the same type and EPA has established 
emission guidelines (EG) for such existing sources. A designated 
pollutant is any pollutant for which no air quality criteria has been 
issued and which is not included on a list published under section 
108(a) (national ambient air quality standards) or section 112 
(hazardous air pollutants) of the Act, but emissions of which are 
subject to a standard of performance for new stationary sources (NSPS). 
In addition, section 129 of the Act also requires EPA to promulgate EG 
for solid waste combustion units that emit a mixture of air pollutants. 
These pollutants include organics (dioxins and dibenzo furans), carbon 
monoxide, metals (cadmium, lead and mercury), acid gases (hydrogen 
chloride, sulfur dioxide and oxides of nitrogen), particulate matter 
and opacity.
    On September 15, 1997 (62 FR 48348), EPA promulgated NSPS and EG 
for HMIWI units, 40 CFR part 60, subparts Ec and Ce, respectively. The 
designated facility to which the EG apply is for each existing HMIWI 
unit, as stipulated in subpart Ce, that commenced construction on or 
before June 20, 1996. See 40 CFR section 60.32e for details. On 
December 6, 2000 (65 FR 76350 and 76378), EPA promulgated NSPS and EG 
for Small MWC units, 40 CFR part 60, subparts AAAA and BBBB, 
respectively. The designated facility to which the EG apply is for each 
existing Small MWC unit, as stipulated in subpart BBBB, that (1) 
commenced construction on or before August 30, 1999, and (2) has the 
capacity to combust at least 35 tons per day of municipal solid waste 
but no more than 250 tons per day municipal solid waste or refuse 
derived fuel. See 40 CFR sections 60.1550, 60.1555 and 60.1940 for 
details.
    On March 12, 1996 (61 FR 9905), EPA promulgated NSPS and EG for MSW 
Landfills, 40 CFR part 60, subparts WWW and Cc, respectively. That 
action also added the source category ``municipal solid waste 
landfills'' to the priority list in 40 CFR 60.16, for regulation under 
section 111 of the Act. The NSPS and EG implement section 111 of the 
Act and are based on the EPA Administrator's determination that MSW 
Landfills cause, or contribute significantly to, air pollution that may 
be reasonably anticipated to endanger public health or welfare. The 
emissions of concern are non-methane organic compounds (NMOC) and 
methane. NMOC include volatile organic compounds (VOC), hazardous air 
pollutants (HAPs), and odorous compounds. The designated facility to 
which the EG apply are as follows: (1) Each existing MSW Landfill for 
which construction, reconstruction or modification was commenced before 
May 30, 1991; and (2) each MSW Landfill that has accepted waste at any 
time since November 8, 1987 or the landfill has additional capacity for 
future waste capacity. See 40 CFR 60.32c for details.
    Pursuant to section 129 of the Act, State plan requirements must be 
``at least as protective'' as the EG and become federally enforceable 
upon approval by EPA. The procedures for adoption and submittal of 
State plans are codified in 40 CFR part 60, subpart B. For states that 
fail to submit a plan, EPA is required to develop and implement a 
Federal plan within two years following promulgation of the EG. EPA 
implementation and enforcement of the Federal plan is viewed as an 
interim measure until states assume their role as the preferred 
implementers of the EG requirements stipulated in the Federal plan. 
Accordingly, EPA

[[Page 51792]]

encourages states to develop their own plan, or to request delegation 
of the Federal plan, as NJDEP has done.

E. What Guidance Did EPA Use To Evaluate NJDEP's Delegation Request?

    EPA evaluated NJDEP's request for delegation of the three Federal 
plans pursuant to EPA's Delegation Manual. Under EPA's Delegation 
Manual, item 7-139, the Regional Administrator is authorized to 
delegate implementation and enforcement of sections 111(d)/129 Federal 
plans to state environmental agencies. The requirements and limitations 
of a delegation agreement are defined in item 7-139. The Regional 
Administrator may consider delegating authority to implement and 
enforce Federal plans to a state provided all of the following 
conditions are met by the state: (1) The state does not already have an 
EPA approved State plan; (2) the state has submitted a written request 
for delegation authority and has demonstrated that it has satisfied 
EPA's criteria for delegation including, at a minimum, a demonstration 
of adequate resources and legal and enforcement authority to administer 
and enforce the Federal plan at issue; and (3) the state has entered 
into a MOA with the Regional Administrator that sets forth the terms, 
conditions and effective date of the delegation, and that serves as the 
mechanism for the transfer of authority. New Jersey met all of EPA's 
delegation requirements. The reader may view New Jersey's letter to EPA 
requesting delegation and the MOAs signed by both parties at the 
following Web site: www.regulations.gov.

II. What Is EPA's Conclusion?

    EPA has evaluated New Jersey's submittal for consistency with the 
Act, EPA regulations, and EPA policy. New Jersey has met all the 
requirements of EPA's guidance for obtaining delegation of authority to 
implement and enforce the three Federal plans. New Jersey entered into 
a MOA with EPA and it became effective on May 15, 2006. Accordingly, 
EPA is proposing to approve New Jersey's request dated May 13, 2005 for 
delegation of authority of the three Federal plans for existing sources 
of HMIWI, Small MWC and MSW Landfills. EPA will continue to retain 
enforcement authority along with NJDEP and EPA will continue to retain 
certain specific authorities reserved to EPA in individual Federal 
plans and as indicated in each MOA (e.g., authority to approve major 
alternatives to test methods or monitoring, etc).

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed 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 proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This proposed rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Act. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove plan submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a plan 
submission, to use VCS in place of a plan submission that otherwise 
satisfies the provisions of the Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This proposed 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.).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 21, 2006.
Alan J. Steinberg,
Regional Administrator, Region 2.
[FR Doc. 06-7317 Filed 8-30-06; 8:45 am]
BILLING CODE 6560-50-P


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