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Approval and Promulgation of Plans for Designated Facilities; New Jersey; Delegation of Authority
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 31, 2006 (Volume 71, Number 169)]
[Proposed Rules]
[Page 51790-51792]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au06-24]
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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:
? http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
? E-mail: Werner.Raymond@epa.gov.
? Fax: 212-637-3901.
? Mail: Raymond Werner, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866.
? 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
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. 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:
? Give the public the opportunity to submit comments on
EPA's proposed action, as discussed in the ADDRESSES section;
? Fulfill a goal of the Act to place State governments in
positions of leadership for air pollution prevention and control; and
? 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: http://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 (59 FR 22951, 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]
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