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###### Environmental Protection Agency

          - 40 CFR Part 62
          - [RO3-OAR-2005-MD-0008; FRL -7966-7]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Direct final rule.

# SUMMARY:

EPA is taking direct final action to approve the May 12, 2005 negative declaration letter submitted by the Maryland Department of the Environment (MDE). The negative declaration certifies that existing CISWI units, subject to Clean Air Act (the Act) requirements of sections 111(d) and 129 and related emission guidelines (EG), have been permanently shut down and have been dismantled in the State of Maryland.

# DATES:

                        This rule is effective November 8, 2005 without further notice, unless EPA receives adverse written comment by October 11, 2005. 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 Regional Material in EDocket (RME) ID Number RO3-OAR-2005-MD-0008 by one of the following methods:

A. Federal eRulemaking Portal: 

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

                        B. Agency Web site:                         *http://www.docket.epa.gov/​rmepub/​*                         RME, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the online instructions for submitting comments.                    

                        C. E-mail:                         *http://wilkie.walter@epa.gov*

D. Mail: RO3-OAR-2005-MD-0008, Walter Wilkie, Chief, Air Quality Analysis, Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

E. 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 RME ID No. RO3-OAR-2005-MD-0008. 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.docket.epa.gov/​rmepub/​,*                         including any personal information                               ( print page 53568)                            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 RME, regulations.gov or e-mail. The EPA RME and the Federal regulations.gov Web sites are 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 RME or 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 RME index at                         *http://www.docket.epa.gov/​rmepub/​.*                         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. Publicly available docket materials are available either electronically in RME 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 Maryland Department of the Environment, 1800 Washington Boulevard, Baltimore, Maryland 21230                    

# FOR FURTHER INFORMATION CONTACT:

                        James B. Topsale, P.E., at (215) 814-2190, or by e-mail at                         *topsale.jim@epa.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Background

                    Sections 111(d) and 129 of the Act require states to submit for approval plans to control certain pollutants (                    *i.e.*, designated pollutants) at existing solid waste combustor facilities (                    *i.e.*, designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established EG for such existing sources. Unless part of a state or Federal plan, EG requirements are not federally enforceable.                

Designated pollutants are those pollutants for which no air quality criteria have been issued, and which are not included on a list published under section 108(a) and 112(b) of the Act, but emissions of which are subject to a new source performance standard. Section 129 of the Act requires EPA to promulgate EG for CISWI units that emit a mixture of air pollutants. These pollutants include organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (including opacity).

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

                    Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Also, part 62 provides the procedural framework for the submission of these plans. When designated facilities are located in a state, the state must develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect (                    *i.e.*, negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require submittal of a section 111(d)/129 plan for the designated facility.                

## II. Final Action

The MDE has determined that existing CISWI units have been permanently shut down and have been dismantled in the state of Maryland. Accordingly, the MDE submitted a negative declaration letter to EPA. The letter is dated May 12, 2005. Therefore, EPA is amending part 62, subpart V, to reflect the receipt of the negative declaration.

                    EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects an already existing Federal requirement for state air pollution control agencies and existing CISWI units, if any, that are subject to the provisions of 40 CFR part 60, and part 62. However, in the “Proposed Rules” section of today's                     **Federal Register**                    , EPA is publishing a separate document that will serve as the proposal to approve the negative declaration should relevant adverse or critical comments be filed. This rule will be effective November 8, 2005 without further notice unless the Agency receives relevant adverse comments by October 11, 2005. If EPA receives adverse comments, EPA will publish a timely withdrawal in the                     **Federal Register**                     informing the public that the rule did not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.                 

## 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 (Public Law 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                           ( print page 53569)                        FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state negative declaration, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.                

                    In reviewing section 111(d)/129 negative declaration submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a section 111(d)/129 negative declaration related submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a 111(d)/129 plan related submission, to use VCS in place of a negative declaration that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 8, 2005. 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 MDE's negative declaration for CISWI units, 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: September 1, 2005. 

Richard J. Kampf,

Acting Regional Administrator, Region III.

40 CFR part 62 is amended as follows:

# PART 62—[AMENDED]

1. The authority citation for part 62 continues to read as follows: 

Authority:42 U.S.C. 7401*et seq.*

# Subpart V—Maryland

2. A new center heading, after § 62.5122, consisting of § 62.5127 is added to read as follows: 

## Emissions From Existing Commercial and Industrial Solid Waste Incinerator (CISWI) Units—Negative Declaration

§ 62.5127 

May 12, 2005 Maryland Department of the Environment letter certifying that existing CISWI units, subject to 40 CFR part 60, subpart DDDD, have been permanently shut down and have been dismantled in the state.

[FR Doc. 05-17929 Filed 9-8-05; 8:45 am]

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