06-7317. Approval and Promulgation of Plans for Designated Facilities; New Jersey; Delegation of Authority

AGENCY:

Environmental Protection Agency.

ACTION:

Proposed rule.

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: [e-mail].
• Fax: [phone].
• 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 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, [phone].

SUPPLEMENTARY INFORMATION:

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