[Federal Register Volume 70, Number 188 (Thursday, September 29, 2005)]
[Rules and Regulations]
[Pages 56853-56856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19352]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[RO4-OAR-2005-NC-0003-200532(a); FRL-7976-5]


Approval and Promulgation of State Plan for Designated Facilities 
and Pollutants; North Carolina

AGENCY: Environmental Protection Agency (EPA)

ACTION: Direct final rule.

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SUMMARY: EPA is approving the Clean Air Act (CAA) section 111(d)/129 
State Plan submitted by the North Carolina Department of Environment 
and Natural Resources (North Carolina DENR) for the State of North 
Carolina on August 7, 2002, and subsequently revised on December 14, 
2004 (State Plan). The State Plan is for implementing and enforcing the 
Emissions Guidelines (EG) applicable to existing Commercial and 
Industrial Solid Waste Incineration (CISWI) Units that commenced 
construction on or before November 30, 1999.

DATES: This direct final rule will be effective November 28, 2005 
unless EPA receives adverse comments by October

[[Page 56854]]

31, 2005. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID No. RO4-OAR-2005-NC-0003, by one of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. Follow 
the on-line instructions for submitting comments.
    3. E-mail: <a href="/cdn-cgi/l/email-protection#490428233c242d2c3b672326302d2c2b092c3928672e263f"><span class="__cf_email__" data-cfemail="b4f9d5dec1d9d0d1c69adedbcdd0d1d6f4d1c4d59ad3dbc2">[email protected]</span></a>.
    4. Fax: (404) 562-9164.
    5. Mail: ``RO4-OAR-2005-NC-0003'', Air Toxics Assessment and 
Implementation Section, Air Toxics and Monitoring Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 
30303-8960.
    6. Hand Delivery or Courier. Deliver your comments to: Joydeb 
Majumder, Air Toxics and Monitoring Branch 12th floor, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, 
Atlanta, Georgia 30303-8960. 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 RME ID No. RO4-OAR-2005-NC-
0003. 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://docket.epa.gov/rmepub/, 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 RME, regulations.gov, 
or e-mail. The EPA RME Web site and the federal regulations.gov Web 
site are ``anonymous access'' systems, 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://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 at the Air Toxics Assessment and Implementation 
Section, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW, Atlanta, Georgia 30303-8960. EPA requests that if 
at all possible, you contact the contact listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Joydeb Majumder at (404) 562-9121.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 1, 2000, pursuant to CAA sections 111 and 129, EPA 
promulgated new source performance standards (NSPS) applicable to new 
CISWI units and EG applicable to existing CISWI units. The NSPS and EG 
are codified at 40 CFR part 60, subparts CCCC and DDDD, respectively. 
Subparts CCCC and DDDD regulate the following: Particulate matter, 
opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon 
monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.
    For existing sources, CAA section 129(b)(2) requires states to 
submit to EPA for approval State Plans that implement and enforce the 
EG contained in 40 CFR part 60, subpart DDDD. State Plans must be at 
least as protective as the EG, and become Federally enforceable upon 
approval by EPA. Pursuant to subpart DDDD, State Plans must include the 
following nine items: An inventory of affected CISWI units; an 
inventory of emissions from affected CISWI units; compliance schedules 
for each affected CISWI unit; emission limitations, operator training 
and qualification requirements, a waste management plan, and operating 
limits for affected CISWI units; performance testing, record keeping, 
and reporting requirements; certification that a public hearing was 
held; provision for State progress reports to EPA; identification of 
enforceable State mechanisms for implementing the emission guidelines; 
and a demonstration of the State's legal authority to carry out the 
State Plan. The procedures for adoption and submittal of State Plans 
are codified in 40 CFR part 60, subpart B.
    In this action, EPA is approving the State Plan for existing CISWI 
units submitted by North Carolina DENR because it meets the 
requirements of 40 CFR part 60, subpart DDDD.

II. Discussion

    North Carolina DENR's 111(d) / 129 State Plan for implementing and 
enforcing the EG for existing CISWI units includes the following: 
Public Participation-Demonstration that the Public Had Adequate Notice 
and Opportunity to Submit Written Comments and Attend Public Hearing; 
Emissions Standards and Compliance Schedules; Emission Inventories, 
Source Surveillance, and Reports; and Legal Authority. EPA's approval 
of the State Plan is based on our finding that it meets the nine 
requirements of 40 CFR part 60, subpart DDDD.
    Requirements (1) and (2): Inventory of affected CISWI units and 
inventory of emissions. North Carolina DENR submitted an emissions 
inventory of all designated pollutants for existing CISWI units under 
their jurisdiction in the State of North Carolina. This portion of the 
State Plan has been reviewed and approved as meeting the Federal 
requirements for existing CISWI units.
    Requirement (3): Compliance schedules for each affected CISWI unit. 
North Carolina DENR submitted the compliance schedule for existing 
CISWI units under their jurisdiction in the State of North Carolina. 
This portion of the State Plan has been reviewed and approved as being 
at least as protective as Federal requirements for existing CISWI 
units.

[[Page 56855]]

    Requirement (4): Emission limitations, operator training and 
qualification requirements, a waste management plan, and operating 
limits for affected CISWI units. North Carolina DENR adopted all 
emission standards and limitations applicable to existing CISWI units. 
These standards and limitations have been approved as being at least as 
protective as the Federal requirements contained in subpart DDDD for 
existing CISWI units.
    Requirement (5): Performance testing, recordkeeping, and reporting 
requirements. The State Plan contains requirements for monitoring, 
recordkeeping, reporting, and compliance assurance. This portion of the 
State Plan has been reviewed and approved as being at least as 
protective as the Federal requirements for existing CISWI units. The 
North Carolina DENR State Plan also includes its legal authority to 
require owners and operators of designated facilities to maintain 
records and report on the nature and amount of emissions and any other 
information that may be necessary to enable North Carolina DENR to 
judge the compliance status of the facilities in the State Plan. North 
Carolina DENR also submitted its legal authority to provide for 
periodic inspection and testing and provisions for making reports of 
existing CISWI unit emissions data, correlated with emission standards 
that apply, available to the general public.
    Requirement (6): Certification that a public hearing was held. 
North Carolina DENR provided certification that a public hearing was 
held on January 7, 2002.
    Requirement (7): Provision for State progress reports to EPA. The 
North Carolina DENR State Plan provides for progress reports of plan 
implementation updates to EPA on an annual basis. These progress 
reports will include the required items pursuant to 40 CFR part 60, 
subpart B. This portion of the State Plan has been reviewed and 
approved as meeting the Federal requirement for State Plan reporting.
    Requirement (8): Identification of enforceable State mechanisms for 
implementing the Emission Guidelines. An enforcement mechanism is a 
legal instrument by which the North Carolina DENR can enforce a set of 
standards and conditions. The North Carolina DENR has adopted 40 CFR 
part 60, subpart DDDD, into 15A North Carolina Administrative Code 
(NCAC) 2D.1210, of the North Carolina Air Regulations for the 
Prevention, Abatement, and Control of Air Contaminants. Therefore, 
North Carolina DENR's mechanism for enforcing the standards and 
conditions of 40 CFR part 60, subpart DDDD, is Rule 15A NCAC 2D.1210. 
On the basis of this rule and the rules identified in Requirement (9) 
below, the State Plan is approved as being at least as protective as 
the Federal requirements for existing CISWI units.
    Requirement (9): A demonstration of the State's legal authority to 
carry out the State Plan. North Carolina DENR demonstrated legal 
authority to adopt emissions standards and compliance schedules for 
designated facilities; authority to enforce applicable laws, 
regulations, standards, and compliance schedules, and authority to seek 
injunctive relief; authority to obtain information necessary to 
determine whether designated facilities are in compliance with 
applicable laws, regulations, standards, and compliance schedules, 
including authority to require record keeping and to make inspections 
and conduct tests at designated facilities; authority to require owners 
or operators of designated facilities to install, maintain, and use 
emission monitoring devices and to make periodic reports to the State 
on the nature and amount of emissions from such facilities; and 
authority to make emissions data publicly available.
    North Carolina DENR cites the following references for the legal 
authority noted above: Adopt emission standards and compliance 
schedules--North Carolina General Statutes (N.C.G.S.) Sec.  143-
215.107(a)(3), (5), (10), and N.C.G.S. Sec.  143-214.108(c)(1); enforce 
applicable laws, regulations, standards, and compliance schedules and 
seek injunctive relief--N.C.G.S. Sec.  143-215.114A, N.C.G.S. Sec.  
143-215.114C, N.C.G.S. Sec.  143-215.69, and N.C.G.S. Sec.  143-
215.3(a)(12); obtain information necessary to determine compliance--
N.C.G.S. Sec.  143-215.107(a)(4), N.C.G.S. Sec.  143-215.107(a)(2), and 
N.C.G.S. Sec.  143-215.63-69; require record keeping, make inspections, 
and conduct tests--N.C.G.S. Sec.  143-215.3(a)(2), N.C.G.S. Sec.  143-
215.63-69, and N.C.G.S. Sec.  143-215.108(d)(1); require the use of 
monitors and require emission reports of owners or operators--N.C.G.S. 
Sec.  143-215.3(a)(2), N.C.G.S. Sec. Sec.  143-215.63--69, N.C.G.S. 
Sec.  143-215.107(a)(4), N.C.G.S. Sec.  143-215.107(a)(10), N.C.G.S. 
Sec.  143-215.108(c)(1), and N.C.G.S. Sec.  143-215.108(c)(5); and make 
emissions data publicly available--N.C.G.S. Sec. Sec.  132-1, et seq, 
and N.C.G.S. Sec.  143-215.3(a)(2).
    EPA is approving the State Plan for existing CISWI units submitted 
by North Carolina DENR because it meets the nine requirements of 40 CFR 
part 60, subpart DDDD.

III. Final Action

    In this action, EPA approves the 111(d)/129 State Plan submitted by 
North Carolina DENR for the State of North Carolina to implement and 
enforce 40 CFR part 60, subpart DDDD, as it applies to existing CISWI 
units. EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the State Plan should 
adverse comments be filed. This rule will be effective November 28, 
2005 without further notice unless the Agency receives adverse comments 
by October 31, 2005.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on November 28, 2005 and no 
further action will be taken on the proposed rule. Please note that if 
we receive adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, we may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
rule 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

[[Page 56856]]

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 
FR 67249, November 9, 2000). This rule 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 rule merely approves a state rule 
implementing a Federal standard, 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 111(d)/129 plan 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 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 
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.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 28, 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 rule may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects 40 CFR Part 62

    Environmental protection, Air pollution control, Commercial and 
industrial solid waste incineration units, Nitrogen dioxide, 
Particulate matter, and Sulfur oxides.

    Dated: September 19, 2005.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

0
Chapter I, title 40 of the Code of Federal Regulation is amended as 
follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart II--North Carolina

0
2. Subpart II is amended by adding an undesignated center heading and 
Sec.  62.8355 to read as follows:

Air Emissions From Commercial and Industrial Solid Waste Incineration 
(CISWI) Units--Section 111(d)/129 Plan


Sec.  62.8355  Identification of sources.

    The Plan applies to existing Commercial and Industrial Solid Waste 
Incineration Units that Commenced Construction On or Before November 
30, 1999.

[FR Doc. 05-19352 Filed 9-28-05; 8:45 am]
BILLING CODE 6560-50-P


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