[Federal Register Volume 77, Number 163 (Wednesday, August 22, 2012)]
[Rules and Regulations]
[Pages 50608-50611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20500]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2012-0620; A-1-FRL-9719-1]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Hot Mix Asphalt Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving in part a State Implementation Plan (SIP) 
revision submitted by the State of New Hampshire on January 28, 2005. 
Specifically, EPA is approving a revision to New Hampshire's regulation 
Env-A 2703.02 for hot mix asphalt plants. This rule establishes and 
requires limitations on visible emissions from all hot mix asphalt 
plants. This revision is consistent with the maintenance of all 
National Ambient Air Quality Standards (NAAQS) in New Hampshire. This 
action is being taken under the Clean Air Act.

DATES: This direct final rule will be effective October 22, 2012, 
unless EPA receives adverse comments by September 21, 2012. 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 Docket ID Number EPA-
R01-OAR-2012-0620 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2012-0620'', 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, Office of Ecosystem Protection, Air Quality Planning 
Unit, 5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 
02109-3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, U.S. Environmental Protection 
Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
(mail code OEP05-2), Boston, MA 02109-3912. Such deliveries are only 
accepted during the

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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 legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0620. 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 through www.regulations.gov, or 
email, information that you consider to be CBI or otherwise protected. 
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 email 
comment directly to EPA without going through www.regulations.gov your 
email 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 
www.regulations.gov index. 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 www.regulations.gov or 
in hard copy at Office of Ecosystem Protection, U.S. Environmental 
Protection Agency, EPA New England Regional Office, Office of Ecosystem 
Protection, Air Quality Planning Unit, 5 Post Office Square--Suite 100, 
Boston, MA. 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 legal 
holidays.
    In addition, copies of the state submittal and EPA's technical 
support document are also available for public inspection during normal 
business hours, by appointment at the State Air Agency; Air Resources 
Division, Department of Environmental Services, 6 Hazen Drive, P.O. Box 
95, Concord, NH 03302-0095.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning 
Unit, U.S. Environmental Protection Agency, EPA New England Regional 
Office, Office of Ecosystem Protection, 5 Post Office Square--Suite 
100, Mail Code OEP05-2, Boston, MA 02109-3912, telephone number (617) 
918-1684, fax number (617) 908-0684, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. Background and Purpose
II. Summary of SIP Revision
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    New Hampshire adopted regulations to limit particulate matter, 
visible emissions, and fugitive emissions from hot mix asphalt plants 
in 1995. In 2002, EPA approved Chapter Env-A 1200 ``Prevention, 
Abatement, and Control of Stationary Source Air Pollution,'' Part Env-A 
1207 ``Asphalt Plants'' into the New Hampshire State Implementation 
Plan (67 FR 48033). Env-A 1207 has since been recodified as Env-A 2700.
    On July 27, 2004, the New Hampshire Department of Environmental 
Services (NH DES) proposed revisions to Env-A 2700 ``Hot Mix Asphalt 
Plants'' and held a public hearing on September 15, 2004. Subsequently, 
NH DES amended Env-A 2700 based on comments received from EPA and 
others, and adopted the regulation revisions on November 19, 2004, with 
an effective date of November 24, 2004. On January 28, 2005, NH DES 
submitted these revisions to EPA for inclusion in the New Hampshire 
SIP. EPA's review of the SIP submittal indicates that EPA comments on 
the revisions to Env-A 2700 have been adequately addressed.
    At this time, EPA is only approving the New Hampshire SIP revision 
for Env-A 2703.02(a). EPA will take action on the remainder of Env-A 
2700 at a later date. Please note that if EPA receives adverse comment 
on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

II. Summary of SIP Revision

    On January 28, 2005, NH DES submitted to EPA amendments to Env-A 
2700 Hot Mix Asphalt Plants. The rule presently in the New Hampshire 
SIP (Env-A 1207.02) applies to pre-June 1974 asphalt plants and 
provides an alternate opacity limit (60 percent opacity, No. 3 on the 
Ringelmann Smoke Chart) for a specified time period (3 minutes per 
startup). This provision did not meet all of EPA's policy requirements 
for source-specific startup and shutdown emission limits (EPA 
memorandum, September 20, 1999, ``State Implementation Plans: Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown'').
    NH DES has recodified and replaced Env-A 1207.02 with Env-A 2703.02 
(``Visible Emission Standards for Hot Mix Asphalt Plants''). Env-A 
2703.02(a) states that ``The owner or operator of a hot mix asphalt 
plant shall not cause or allow visible fugitive emissions or visible 
stack emissions to exceed an average of 20 percent opacity for any 
continuous 6-minute period'' with no exemptions. The revised rule 
applies to all hot mix asphalt plants regardless of construction date. 
Thus, the revised rule is more stringent than current SIP requirements, 
is consistent with EPA's policy, and meets the section 110(l) anti-
backsliding requirements of the Clean Air Act.
    At this time EPA is not taking action on provisions of Chapter Env-
A 2700 other than Env-A 2703.02(a). EPA intends to take action on the 
remainder of Env-A 2700 in the near future.

III. Final Action

    EPA is approving amendments to the New Hampshire Hot Mix Asphalt 
Plant Rule at Env-A 2703.02(a) into the New Hampshire SIP. EPA has 
determined that the revised Env-A 2703.02(a) meets the applicable 
requirements of section 110 of the Clean Air Act.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment 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 SIP revision should 
relevant adverse comments be filed. This rule will be effective October 
22, 2012 without further notice unless

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the Agency receives relevant adverse comments by September 21, 2012.
    If the EPA receives such comments, then EPA will publish a notice 
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. The EPA will not 
institute a second comment period on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on October 22, 2012 and no further action will 
be taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

    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 action 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 action 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 October 22, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

    Dated: August 7, 2012.
H. Curtis Spalding,
Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart EE--New Hampshire

0
2. In Sec.  52.1520, the table in paragraph (c) is amended by adding a 
new entry for state citation ``Env-A 2703.02(a)'' in alphanumeric order 
to read as follows:


Sec.  52.1520  Identification of plan.

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    (c) EPA approved regulations.

                                     EPA-Approved New Hampshire Regulations
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                                                        State
        State citation            Title/subject    effective date   EPA approval date \1\       Explanations
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                                                  * * * * * * *
Env-A 2703.02(a)..............  Hot Mix Asphalt         11/4/2004  8/22/2012 [Insert       Adopted Regulation
                                 Plants.                            Federal Register page   established Hot Mix
                                                                    number where the        Asphalt Plant
                                                                    document begins]        Requirements.

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\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

[FR Doc. 2012-20500 Filed 8-21-12; 8:45 am]
BILLING CODE 6560-50-P