[Federal Register Volume 79, Number 57 (Tuesday, March 25, 2014)]
[Proposed Rules]
[Pages 16271-16274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06579]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2014-0127, FRL-9908-45-Region-2]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State plan submitted by New York State to implement and 
enforce the Emission Guidelines (EG) for existing sewage sludge 
incineration (SSI) units. The State plan is consistent with the EG 
promulgated by EPA on March 21, 2011. New York's plan establishes 
emission limits and other requirements for the purpose of reducing 
toxic air emissions and other air pollutants from SSI units throughout 
the State. New York submitted its plan to fulfill the requirements of 
sections 111(d) and 129 of the Clean Air Act.

DATES: Written comments must be received on or before April 24, 2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2014-0127 by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: mailto:[email protected]
     Mail: EPA-R02-OAR-2014-0127, Richard Ruvo, Chief, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, 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 
a.m. to 4:30 p.m. excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2014-0127. 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 email. 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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dpckets.htm.
    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, 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 during normal 
business hours at the Environmental Protection Agency, Region 2 Office, 
Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 
10007-1866. EPA requests, if at all possible, that you contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
([email protected]), Air Programs Branch, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the Supplementary Information section:

I. EPA Action
    A. What action is EPA proposing today?
    B. Why is EPA taking this action?
    C. Who is affected by New York's State plan?
    D. How does this approval affect sources located in Indian 
Nation Land?
II. Background
    A. What is a State plan?
    B. What is an SSI State plan?
    C. Why is EPA requiring New York to submit an SSI State plan?
    D. What are the requirements for an SSI State plan?
III. New York's State Plan
    A. What is contained in the New York State plan?
    B. What approval criteria did we use to evaluate New York's 
State plan?
IV. What is EPA's conclusion?
V. Statutory and Executive Order Reviews

I. EPA Action

A. What action is EPA proposing today?

    EPA is proposing to approve New York's State plan, submitted on 
July 1, 2013, for the control of air emissions from existing sewage 
sludge incinerator (SSI) units throughout the State, except for any 
existing SSI units located in Indian Nation Land. New York submitted 
its plan to fulfill the requirements of section 111(d) and 129 of the 
Clean Air Act (CAA). The State plan adopts and implements the Emission 
Guidelines (EG) applicable to existing SSI units, and establishes 
emission limits and other requirements for units constructed on or 
before October 14, 2010. This proposed approval, once finalized and 
effective, will make the New York SSI rules included in the State plan 
federally enforceable.

B. Why is EPA taking this action?

    EPA has evaluated New York's SSI State plan for consistency with 
the CAA, EPA guidelines and policy. EPA has determined that New York's 
State plan meets all applicable requirements and therefore, EPA is 
proposing to approve New York's State plan to implement and enforce the 
EG applicable to existing SSI units.

C. Who is affected by New York's State plan?

    New York's State plan regulates all the units designated by the EG 
for existing SSI units which commenced construction on or before 
October 14, 2010 and which are located at a wastewater treatment 
facility designed

[[Page 16272]]

to treat domestic sewage sludge. If the owner or operator of an SSI 
unit made changes after September 21, 2011, that meet the definition of 
modification (see Title 40, Code of Federal Regulations, section 
60.5250 (40 CFR 60.5250)), the SSI unit becomes subject to subpart LLLL 
(New Source Performance Standards for New Sewage Sludge Incineration 
Units) of 40 CFR part 60, and the State plan no longer applies to that 
unit.

D. How does this approval affect sources located in Indian Nation Land?

    New York's State plan is not applicable to units located in Indian 
Nation Land. Therefore, if there are any existing SSI units located in 
Indian Nation Land these existing SSI units will be subject to the 
Federal plan.

II. Background

A. What is a State plan?

    Section 111 of the CAA, ``Standards of Performance for New 
Stationary Sources,'' authorizes EPA to set air emissions standards for 
certain categories of sources. These standards are called New Source 
Performance Standards (NSPS). When a NSPS is promulgated for new 
sources, section 111(d) also requires that EPA publish an EG applicable 
to control the same pollutants from existing (or designated) 
facilities. States with designated facilities must then develop a State 
plan to adopt the EG into the State's body of regulations. States must 
also include in their State plan other requirements, such as 
inventories, legal authority, reporting and recordkeeping, and public 
participation documentation, to demonstrate their ability to enforce 
the State plans.
    Section 129 of the CAA requires EPA to establish performance 
standards and emission guidelines for various types of new and existing 
solid waste incineration units. Section 129(b)(2) requires States to 
submit to EPA for approval section 111(d)/129 plans that implement and 
enforce the promulgated EG. Section 129(b)(3) requires EPA to 
promulgate a Federal plan (FP) within two years from the date on which 
the EG, or when revision to the EG, is promulgated. The FP is 
applicable to affected facilities when the state has failed to receive 
EPA approval of the section 111(d)/129 plan. The FP remains in effect 
until the state submits and receives EPA approval of its section 
111(d)/129 plan.
    State plan submittals under CAA sections 111(d) and 129 must be 
consistent with the relevant EG, in this instance 40 CFR part 60, 
subpart MMMM, and the requirements of 40 CFR part 60, subpart B and 
part 62, subpart A. Section 129 of the CAA regulates air pollutants 
that include organics (dioxins/furans), carbon monoxide, metals 
(cadmium, lead, and mercury), hydrogen chloride, sulfur dioxide, 
nitrogen oxides, particulate matter, and opacity (as appropriate).

B. What is an SSI State plan?

    An SSI State plan is a State plan, as described above, that 
controls air pollutant emissions from existing sewage sludge 
incinerators located at a wastewater treatment facility designed to 
treat domestic sewage sludge and that commenced construction on or 
before October 14, 2010. The applicable types of SSI units include 
fluidized bed and multiple hearth incinerators.

C. Why is EPA requiring New York to submit an SSI State plan?

    When EPA developed the NSPS for SSI units, we simultaneously 
developed the EG to control air emissions from existing SSI units (see 
76 FR 15371, March 21, 2011). Under section 129 of the CAA, the EG is 
not federally enforceable; therefore, section 129 of the CAA also 
requires states to submit to EPA for approval State plans that 
implement and enforce the EG. Under section 129 of the CAA, these State 
plans must be at least as protective as the EG, and they become 
federally enforceable upon approval by EPA.
    The procedures for adopting and submitting State plans are located 
in 40 CFR part 60, subpart B. If a state fails to have an approvable 
plan in place by March 21, 2013, the EPA is required to promulgate a 
federal plan to establish requirements for those sources not under an 
EPA-approved State plan. The procedures for EPA's approval and 
disapproval of State plans are located in 40 CFR part 62, subpart A. 
EPA is proposing to approve New York's State plan since it is deemed at 
least as protective as the standards set in the EG. New York has 
developed and submitted a State plan, as required by sections 111(d)/
129 of the CAA, to gain federal approval to implement and enforce the 
EG for existing SSI units.

D. What are the requirements for an SSI State plan?

    A section 111(d) State plan submittal must meet the requirements of 
40 CFR part 60, subpart B, sections 60.23 through 60.26, and the EG 
found at 40 CFR part 60, subpart MMMM (see 76 FR 15371, March 21, 
2011). Subpart B contains the procedures for the adoption and submittal 
of State plans. This subpart addresses public participation, legal 
authority, emission standards and other emission limitations, 
compliance schedules, emission inventories, source surveillance, and 
compliance assurance and enforcement requirements.
    EPA promulgated the EG at 40 CFR part 60, subpart MMMM on March 21, 
2011. Subpart MMMM contains guidelines to the states for submittal of 
plans that address existing SSI units. In addition, subpart MMMM 
contains the technical requirements for existing SSI units located at a 
wastewater treatment plant designed to treat domestic sewage sludge and 
applies to SSI units that commenced construction on or before October 
14, 2010. A state can address the SSI technical requirements by 
adopting its own regulation that includes all the applicable 
requirements of subpart MMMM or by adopting by reference subpart MMMM. 
The section 111(d) State plan is required to be submitted within one 
year of the EG promulgation date, i.e. by March 21, 2012. Prior to 
submittal to EPA, the State must make available to the public the State 
plan and provide opportunity for public comment, including a public 
hearing.

III. New York's State Plan

A. What is contained in the New York State plan?

    On July 1, 2013,\1\ the New York State Department of Environmental 
Conservation (NYSDEC) submitted its section 111(d) State plan for 
implementing EPA's EG for existing SSI units located in New York State.
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    \1\ In an email dated 02/28/14, New York responded to an EPA 
request to provide clarifying information concerning the State's 
plan. This clarifying information also is available in EPA's docket 
at www.regulations.gov.
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    New York has adopted by reference the applicable requirements of 
the EG in Part 200 of Title 6 of the New York Code of Rules and 
Regulations (6NYCRR) of the State of New York, entitled ``General 
Provisions'' and in Subpart 219-1 of 6NYCRR entitled ``Incineration-
General Provisions'' and Subpart 219-9 of 6NYCRR entitled ``Emission 
Guidelines and Compliance Schedules for Existing Sewage Sludge 
Incineration Units.'' These amended regulations became effective on May 
12, 2012. By incorporating the EG by reference into Part 200, NYSDEC 
has the authority to include them as applicable within Subpart 219-9, 
which addresses the applicability of the various Part 219 (New York's 
incineration rules) requirements. Part 219 now includes the new 
requirements incorporated from the EG, as well as the necessary 
compliance schedules and necessary definition

[[Page 16273]]

changes required for the transformation of emission guidelines into a 
State plan. As a result, the Part 219 requirements are enforceable by 
New York and become federally enforceable once the State plan is 
approved by EPA.
    Section 60.5015 of the EG describes all of the required elements 
that must be included in a state's plan for SSI units. New York's State 
plan includes all of the required elements described in section 60.5015 
of the EG, as summarized herein:
    (1) A demonstration of the State's legal authority to implement the 
sections 111(d) and 129 State plan;
    (2) State rules adopted into 6NYCRR Parts 200 and 219 as the 
mechanism for implementing and enforcing the State plan;
    (3) An inventory of twelve known SSI facilities, including twenty-
one SSI units, along with an inventory of their air pollutant emissions 
(see sections A and B of New York's State plan as well as the 
clarifying information submitted by New York). Of these twenty-one SSI 
units, at least seven units, and possibly more, will have ceased 
operation by the March 21, 2016 compliance date. Also, the inventory 
includes an additional nine facilities with fifteen SSI units that have 
expired permits and that are no longer in operation--New York has 
indicated in its State plan that these facilities would be considered 
new facilities subject to 40 CFR part 60, subpart LLLL (Standards of 
Performance for New Stationary Sources) should they apply for a new air 
permit;
    (4) Emission limits, emission standards, operator training and 
qualification requirements, and operating limits that are at least as 
protective as the EG;
    (5) Enforceable compliance schedules incorporated into Subpart 219-
9, part of New York's incineration rule, as follows: either (a) a one 
year schedule whereby full compliance is achieved by twelve months 
after EPA's approval of New York's State plan or June 21, 2013, 
whichever is earlier, or (b) an extended schedule whereby full 
compliance is achieved by thirty-six months after EPA's approval of New 
York's State plan or March 21, 2016, whichever is earlier.
    (6) Testing, monitoring, reporting and recordkeeping requirements 
for the designated facilities;
    (7) Records of the public hearing on the State plan; and,
    (8) Provisions for annual state progress reports to EPA on 
implementation of the State plan.
    EPA proposes to determine that New York's State plan for SSI units 
includes all the required State plan elements described in section 
60.5015 of the EG.

B. What approval criteria did we use to evaluate New York's State plan?

    EPA reviewed New York's State plan for approval against the 
following criteria: 40 CFR 60.23 through 60.26, ``Subpart B-Adoption 
and Submittal of State Plans for Designated Facilities;'' and 40 CFR 
60.5000 through 60.5250, ``Subpart MMMM-Emission Guidelines and 
Compliance Times for Existing Sewage Sludge Incineration Units;'' and 
40 CFR 62, subpart A, ``General Provisions'' for ``Approval and 
Promulgation of State Plans for Designated Facilities and Pollutants.''

IV. What is EPA's conclusion?

    The EPA has determined that New York's State plan meets all the 
applicable approval criteria as discussed above and, therefore, EPA is 
proposing to approve New York State's sections 111(d) and 129 State 
plan for existing sewage sludge incineration units.

V. 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 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 (Public Law 104-4). This proposed rule also does 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), nor will it 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), because it 
merely proposes to approve a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This proposed rule 
also is not subject to Executive Order 13045 (62 FR 19885, April 23, 
1997), because it approves a state rule implementing a Federal 
standard.
    In reviewing NYSDEC's submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 NYSDEC submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a NYSDEC 
submission, to use VCS in place of a NYSDEC submission that otherwise 
satisfies the provisions of the CAA. 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. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
proposed rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the Attorney 
General's ``Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This proposed rule for the approval of NYSDEC's section 111(d)/129 plan 
for SSI units 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, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, waste treatment and disposal.


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    Date: March 12, 2014.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2014-06579 Filed 3-24-14; 8:45 am]
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