[Federal Register Volume 80, Number 163 (Monday, August 24, 2015)]
[Proposed Rules]
[Pages 51170-51172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20904]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2015-0509, FRL-9933-01-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 
withdraw its approval of a provision of the New York State plan that 
implements and enforces the Emission Guidelines for existing sewage 
sludge incineration units. This action would withdraw the EPA's 
approval of a provision of the State sewage sludge incineration plan 
allowing for affirmative defenses of Clean Air Act violations in the 
case of malfunctions. No other provision in the State plan would be 
affected by this action.

DATES: Comments must be received on or before September 23, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2015-0509 by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     Mail: EPA-R02-OAR-2015-0509, 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 4:00 p.m. excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2015-0509. The 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 the 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 the 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, the 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 the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the 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 the EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.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 at 
www.regulations.gov or at the Environmental Protection Agency, Region 2 
Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New 
York 10007-1866. The EPA requests, if at all possible, that you

[[Page 51171]]

contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the docket. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
([email protected]), Environmental Protection Agency, Region 2 
Office, 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. What action is the EPA proposing today?
II. Which provision of the State sewage sludge incineration (SSI) 
plan is EPA withdrawing approval of?
III. Why is the EPA taking this action?
IV. Who is affected by the State SSI plan and the amendment to the 
State SSI plan?
V. What is the background for New York State's request to amend the 
State SSI plan?
VI. What approval criteria did we use to evaluate New York State's 
January 2015 request to amend the State SSI plan?
VII. What is the EPA's conclusion?
VIII. Statutory and Executive Order Reviews

I. What action is the EPA proposing today?

    The EPA is proposing to withdraw its prior approval of an 
affirmative defense provision in New York State's SSI plan, based on a 
request submitted on January 27, 2015, by New York State. New York 
State submitted the State SSI plan for EPA approval on July 1, 2013 to 
fulfill the requirements of section 111(d) and 129 of the Clean Air Act 
(CAA). The EPA approved the proposed State SSI plan on June 11, 2014 
(79 FR 33456). The State SSI plan adopts and implements the emission 
guidelines (EG) set forth at Title 40 part 60 subpart MMMM of the Code 
of Federal Regulations (CFR) and is applicable to existing SSI units 
and establishes air emission limits and other requirements. Existing 
SSI units are units constructed on or before October 14, 2010.

II. Which provision of the State SSI plan is EPA withdrawing approval 
of?

    New York State is requesting that the EPA withdraw its approval of 
a provision in the State SSI plan that allows for an affirmative 
defense by an owner/operator of an SSI unit for violations of air 
emissions or other requirements of the State's plan in the event of 
malfunction(s) of an SSI unit. The EPA's proposed withdrawal of its 
prior approval, once finalized and effective, will result in the 
removal of the affirmative defense provisions from the federally-
enforceable State SSI plan while maintaining the federal enforceability 
of the remainder of the State SSI plan for covered SSI units located in 
New York State.

III. Why is the EPA taking this action?

    The EPA has determined that New York State's request that EPA 
withdraw approval of the affirmative defense provision in the State SSI 
plan meets all applicable requirements and therefore the EPA is 
proposing to withdraw its approval of that provision.

IV. Who is affected by the State SSI plan and the amendment to the 
State SSI plan?

    The State SSI plan regulates all the units designated by the EG for 
existing SSI units and which are located at a wastewater treatment 
facility designed to treat domestic sewage sludge. If the owner or 
operator of a covered SSI unit made changes after September 21, 2011, 
that meet the definition of modification (see 40 CFR 60.5250), the SSI 
unit would become subject to 40 CFR part 60 subpart LLLL (New Source 
Performance Standards for New Sewage Sludge Incineration Units), and 
the State SSI plan would no longer apply to that unit.

V. What is the background for New York State's request to amend the 
State SSI plan?

    In an April 18, 2014 opinion, the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit Court) vacated an 
affirmative defense in one of the EPA's Section 112 regulations. NRDC 
v. EPA, 749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense 
provisions in Section 112 rule establishing emission standards for 
Portland cement kilns). The court found that the EPA lacked authority 
to establish an affirmative defense for private civil suits and held 
that under the CAA, the authority to determine civil penalty amounts in 
such cases lies exclusively with the courts, not the EPA. The vacated 
affirmative defense provision in the EPA's Portland cement MACT rule is 
identical to the affirmative defense provision in the EPA's SSI EG, 
promulgated on March 21, 2011, under sections 111(d) and 129 of the 
CAA, at Sec.  60.5181 (``How do I establish an affirmative defense for 
exceedance of an emission limit or standard during a malfunction?''). 
New York's State SSI plan adopted by reference all the applicable 
requirements of the EPA's SSI EG, including the affirmative defense 
provisions at Sec.  60.5181, into its State plan at Part 200 of Title 6 
of the New York Code of Rules and Regulations (6NYCRR) of the State of 
New York, entitled ``General Provisions.''
    Because of the April 2014 D.C. Court vacatur referred to above, New 
York State submitted its January 27, 2015 letter requesting that EPA 
withdraw its approval of the affirmative defense provision as part of 
the State SSI plan submitted to the EPA for approval on July 1, 
2013.\1\ Consequently, the EPA is proposing to withdraw its prior 
approval of that particular provision of the State SSI plan as 
discussed herein.
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    \1\ EPA has proposed a Federal SSI plan which would apply to SSI 
units that are not covered by an approved and effective state plan. 
The proposed federal plan does not include an affirmative defense to 
violations that result from malfunctions. 80 FR 23402, 23407 (Apr. 
27, 2015).
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VI. What approval criteria did we use to evaluate New York State's 
January 2015 request to amend the State SSI plan?

    The EPA reviewed New York State's request against the applicable 
requirements of section 129(b)(2) of the CAA. To ensure consistency, 
the EPA reviewed New York State's request against the proposed Federal 
SSI plan, discussed in footnote 1 of this notice, which does not 
include an affirmative defense to violations that result from 
malfunctions.

VII. What is the EPA's conclusion?

    The EPA has determined that New York State's SSI plan will continue 
to meet all the applicable approval criteria if EPA withdraws its 
approval of the affirmative defense provision. First, the removal of 
the affirmative defense provision is consistent with the D.C. Circuit's 
decision in NRDC v. EPA, as described above. Second, a state plan must 
be at least as protective as the emissions guidelines promulgated by 
the EPA, and the removal of the affirmative defense provision from the 
approved state plan does not render the plan less protective, as it 
removes a potential defense to a violation resulting from a 
malfunction. Therefore, the EPA is proposing to withdraw its approval 
of that provision of the plan, which the EPA approved on June 11, 2014 
(79 FR 33456) as part of New York's sections 111(d) and 129 State SSI 
plan for existing sewage sludge incineration units.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/
129 plan submission that complies with the provisions of the Act and 
applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 
111(d)/129 plan

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submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the CAA. 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).
    The 111(d)/129 plan is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
Nation Land, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

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.

    Dated: August 13, 2015.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2015-20904 Filed 8-21-15; 8:45 am]
 BILLING CODE 6560-50-P