[Federal Register Volume 80, Number 206 (Monday, October 26, 2015)]
[Rules and Regulations]
[Pages 65159-65161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27166]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2015-0509; FRL-9936-09-Region 2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is approving a request 
from the State of New York that EPA 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 withdraws 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 is affected by this action.

DATES: This rule is effective on November 25, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2015-0509. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., 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 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 contact 
the individual 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 p.m., excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
([email protected]), Air Programs Branch, Environmental 
Protection Agency, 290 Broadway, 25th Floor, New York, New York 1007-
1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION:

I. What action is the EPA taking?

    The EPA is approving a request from the State of New York that EPA

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withdraw its approval of an affirmative defense provision in New York 
State's sewage sludge incineration (SSI) plan, based on a letter 
submitted by New York on January 27, 2015. New York State submitted the 
State SSI plan for EPA approval on July 1, 2013 to fulfill the 
requirements of sections 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 requested 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 affected SSI unit for violations of air 
emissions or other requirements of the State's plan in the event of 
malfunction(s) of the SSI unit. The EPA's withdrawal of its prior 
approval, once finalized and effective, results in the removal of the 
affirmative defense provision 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.
    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.''
    For further details concerning today's action, the reader is 
referred to the EPA's proposed rule published in the Federal Register 
on August 24, 2015 (80 FR 51170).

III. What comments were received on the proposed approval and how has 
the EPA responded to them?

    There were no comments received on EPA's proposed rulemaking (80 FR 
51170, August 24, 2015) regarding the EPA's withdrawal of its prior 
approval of the affirmative defense provision in New York State's SSI 
plan. The 30-day public comment period on EPA's proposed approval ended 
on September 23, 2015.

IV. What is the EPA's Conclusion?

    The EPA has evaluated New York's January 27, 2015 request for 
consistency with the CAA, as well as the EPA's regulations and policy. 
Therefore, the EPA is approving to withdraw its approval of the 
affirmative defense provision of New York's State SSI 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. No other provisions in the New York State SSI plan 
is affected by this approval.
    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 DC Circuit's 
decision in Natural Resources Defense Council v. Environmental 
Protection Agency, 749 F3d 1055 (D.C. Cir. April 18, 2014), as 
described in the EPA's proposed rulemaking (80 FR 51170, August 24, 
2015). 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.

V. 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 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 (65FR67249, November 9, 
2000).
    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 December 28, 2015. 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

[[Page 65161]]

within which a petition for judicial review may be filed, and shall not 
postpone the effectiveness of such rule or action. 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 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: October 14, 2015.
Judith A. Enck,
Regional Administrator, Region 2.

    40 CFR part 62 is amended as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart HH--New York

0
2. Section 62.8108 is amended by adding paragraphs (d) and (e) to read 
as follows:


Sec.  62.8108  Identification of plan.

* * * * *
    (d) On January 27, 2015, the New York State Department of 
Environmental Conservation (NYSDEC) submitted to the Environmental 
Protection Agency (EPA) a request to revise its section 111(d)/129 plan 
for implementation and enforcement of 40 CFR part 60, subpart MMMM--
Emission Guidelines and Compliance Times for Existing Sewage Sludge 
Incineration (SSI) Units submitted on July 1, 2013 and approved by the 
EPA on June 11, 2014 (79 FR 33456). NYSDEC's January 27, 2015 revision 
consisted of a request that EPA withdraw its June 11, 2013 approval of 
the affirmative defense provision as part of its State SSI plan, 
submitted to EPA for approval on July 1, 2013.
    (e) The effective date of EPA's approval of NYSDEC's revised plan 
for existing sewage sludge incineration units is November 25, 2015.

[FR Doc. 2015-27166 Filed 10-23-15; 8:45 am]
 BILLING CODE 6560-50-P