[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Proposed Rules]
[Pages 56556-56558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19869]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2016-0285; A-1-FRL-9951-07-Region 1]


Air Plan Approval; New Hampshire; Rules for Reducing Particulate 
Emissions

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by the 
State of New Hampshire on March 31, 2011 and on July 23, 2013. These 
SIP revisions establish particulate matter (PM) and visible emissions 
(VE) standards for the following sources: foundries, smelters, and 
investment casting operations; hot mix asphalt plants; and sand and 
gravel sources, non-metallic mineral processing plants, and cement and 
concrete sources. In addition, EPA is proposing to approve a part of a 
SIP revision submitted by New Hampshire on March 12, 2003 that 
establishes procedures for testing opacity of emissions (i.e., VE). 
This action is being taken under the Clean Air Act.

DATES: Written comments must be received on or before September 21, 
2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2016-0285 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning 
Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental 
Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, 
Massachusetts 02109-3912; (617) 918-1684; [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. EPA's Evaluation of New Hampshire's SIP Revisions
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On March 31, 2011, New Hampshire Department of Environmental 
Services (NH DES) submitted a State Implementation Plan (SIP) revision, 
which included a regulation entitled ``Sand and Gravel Sources; Non-
Metallic Mineral Processing Plants; Cement and Concrete Sources'' (New 
Hampshire Code of Administrative Rules Chapter (Env-A 2800)).
    On July 23, 2013, NH DES submitted SIP revisions which included the 
following three regulations: ``Particulate Matter and Visible Emissions 
Standards'' (Env-A 2100); ``Ferrous and Non-Ferrous Foundries, 
Smelters, and Investment Casting Operations'' (Env-A 2400); and ``Hot 
Mix Asphalt Plants'' (Env-A 2700).
    The four submitted regulations (Env-A 2100, 2400, 2700, and 2800) 
state that opacity shall be determined in accordance with test methods 
established in Env-A 807. On March 12, 2003, the NH DES submitted Env-A 
800, ``Testing and Monitoring Procedures,'' which included Part Env-A 
807. On November 5, 2012, EPA approved Env-A 800 as submitted in March 
2003 and revised on July 9, 2007. Although the March 2003 submittal 
included Env-A 807, the July 2007 submittal did not. The November 2012 
approval did not take action with regard to Env-A 807. See 77 FR 66388. 
Therefore, Env-A 807 submitted on March 12, 2003 is still pending 
before EPA.
    Two of the submitted regulations (Env-A 2100 and 2400) included 
affirmative defense provisions for malfunction, which is defined as a 
sudden and unavoidable breakdown of process or control equipment. The 
New Hampshire regulations were submitted to EPA after EPA issued a 
start-up, shut-down, and malfunction (SSM) SIP Call proposal in 
February 2013 (78 FR 12460), which would have allowed narrowly drawn 
affirmative defense provisions in SIPs for malfunction. However, 
following issuance of our SIP Call proposal, a federal court ruled that 
the Clean Air Act precludes authority of the EPA to create affirmative 
defense provisions. EPA, therefore, believes that it cannot approve 
affirmative defense provisions in SIP submissions, even narrowly 
tailored ones for periods of malfunction (See NRDC v EPA, 749 F.3d 1055 
(D.C. Circuit 2014)). As a result of the court decision, we issued a 
supplemental notice of proposed rulemaking (SNPR) on September 17, 2014 
(79 FR 55920) that rescinded our

[[Page 56557]]

previous February 2013 proposal to allow narrowly tailored affirmative 
defense provisions for malfunction to be included in SIPs. Therefore, 
on April 13, 2016, NH DES sent a letter to EPA withdrawing the 
affirmative defense provisions in Chapter Env-A 2100 and 2400 (i.e., 
2103.03, and 2405).
    After reviewing NH DES's SIP submittals for Env-A 807, 2100, 2400, 
2700, 2800 and the letter withdrawing the affirmative defense 
provisions in Env-A 2100 and 2400, EPA is proposing to approve all of 
the SIP revisions without the withdrawn portions, and is soliciting 
public comments on the issues discussed in this notice or on other 
relevant matters. These comments will be considered before taking final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to this proposed rule by 
following the instructions listed in the ADDRESSES section of this 
Federal Register.

II. EPA's Evaluation of New Hampshire's SIP Revisions

    On March 12, 2003, NH DES submitted NH Code of Administrative Rules 
Chapter Env-A 807 for approval into the New Hampshire SIP. Env-A 807 
establishes procedures for testing opacity of emissions (i.e., visible 
emissions) from stationary sources, and from small boilers and 
emergency generators. Env-A 807 also establishes testing requirements 
for diesel engines in motor vehicles as well as procedures for 
determining opacity from fugitive emissions. Env-A 807 is not currently 
part of the federally-approved New Hampshire SIP. Four regulations that 
we are proposing to approve herein (Env-A 2100, 2400, 2700, and 2800) 
rely on use of test methods given in Env-A 807. Based on a review of 
Env-A 807, EPA has determined that the test procedures are appropriate 
and is proposing to approve Env-A 807 into the New Hampshire SIP.
    On March 31, 2011, NH DES submitted Env-A 2800 (Sand and Gravel 
Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete 
Sources) for approval into the New Hampshire SIP. This rule is not 
currently part of the federally-approved New Hampshire SIP.
    Env-A 2800 sets standards for VE and PM emissions and fugitive-dust 
requirements for sand and gravel sources, non-metallic mineral 
processing plants, and cement and concrete sources. In addition, it 
establishes permit-by-notification (PBN) requirements for non-metallic 
mineral processing plants to replace the General State Permit (GSP) 
option. For all sources subject to Env-A 2800, visible fugitive 
emissions or visible stack emissions must not exceed 20-percent opacity 
for any continuous 6-minute period, and all sources are required to 
control emissions of dust from vehicular movement within plant property 
boundaries. This rule will benefit public health and the environment by 
controlling PM emissions and visible emissions from a variety of 
sources. Therefore, EPA is proposing to approve Env-A 2800 into the New 
Hampshire SIP.
    On July 23, 2013, NH DES submitted Env-A 2100 (Particulate Matter 
and Visible Emissions Standards), Env-A 2400 (Ferrous and Non-Ferrous 
Foundries, Smelters, and Investment Casting Operations), and Env-A 2700 
(Hot Mix Asphalt Plants) for approval into the New Hampshire SIP.
    Env-A 2100 establishes emission standards for existing and new 
stationary sources or devices that emit particulate matter to the 
ambient air through a stack or through an exhaust and ventilation 
system. This rule is not currently part of the federally-approved New 
Hampshire SIP. Depending on the process weight rate (0.025 to 1,000 
tons per hour (tph)), the PM emission standard in Env-A 2100 for ``new 
devices'' ranges from 0.36 to 77.6 pounds per hour (lbs/hr), and for 
``existing devices'' from 0.43 to 93.11 lbs/hr. In addition, Env-A 2100 
sets allowable visible emissions for stationary sources or devices at 
20 percent opacity for any continuous 6-minute period. This rule will 
benefit public health and the environment by controlling PM emissions 
from certain stationary sources. Therefore, EPA is proposing to approve 
Env-A 2100 into the New Hampshire SIP.
    Env-A 2400 establishes emission standards for ferrous and non-
ferrous foundries, smelters, and investment casting operations. This 
rule is not currently part of the federally-approved New Hampshire SIP. 
For existing foundries (installed before or on May 12, 1971) and new 
ferrous foundries (installed after May 12, 1971), PM emission standards 
in Env-A 2400 are the same as those given for existing and new sources 
and devices in Env-A 2100. The standards are the same for non-ferrous 
foundries, smelters, and investment casting operations. However, for 
these non-ferrous facilities and operations, ``existing'' is defined as 
before or on February 18, 1972, and ``new'' is defined as after 
February 18, 1972. In addition, for any ferrous foundry installed or 
modified after June 15, 1974, PM emissions must not exceed 50 
milligrams per dry standard cubic meter (mg/dscm) or 0.022 grains/dscf. 
For all facilities covered under Env-A 2400, allowable visible 
emissions are set at 20 percent opacity for any continuous 6-minute 
period. This rule will benefit public health and the environment by 
controlling PM emissions from foundries, smelters, and investment 
casting operations. Therefore, EPA is proposing to approve Env-A 2400 
into the New Hampshire SIP.
    Env-A 2700 establishes emission standards for hot mix asphalt 
plants. The PM emission standard is set at 90 mg/dscm or 0.04 grains/
dscf, which is the same standard as in the federal Standards of 
Performance for Hot Mix Asphalt Facilities (40 FR 46259). In addition, 
visible fugitive emissions or visible stack emissions must not exceed 
an average of 20 percent opacity for any continuous 6-minute period. On 
August 22, 2012, EPA approved one provision of Env-A 2700, which was 
part of a SIP revision submitted by New Hampshire on January 28, 2005. 
See 77 FR 50651. This provision, 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.'' NH 
DES withdrew the remaining parts of the January 2005 SIP submittal on 
July 23, 2013, when it submitted the version of Env-A 2700 that is 
addressed herein. In the July 23, 2013 submission, SIP-approved Env-A 
2703.02(a) has been renumbered Env-A 2702.02(a). This rule will benefit 
public health and the environment by reducing emissions from hot mix 
asphalt plants. Also, by approving the July 23, 2013 submission of Env-
A 2700 in its entirety, the existing provision limiting visible 
emissions will be retained in the New Hampshire SIP, thus meeting the 
requirements of section 110(l) of the CAA. Therefore, EPA is proposing 
to approve Env-A 2700 into the New Hampshire SIP.
    EPA's review of the SIP submittals indicate that all concerns that 
EPA has expressed to NH DES about these state regulations have been 
adequately addressed. Concerns on the July 23, 2013 submittals were all 
in regard to affirmative defense provisions for malfunctions contained 
in Env-A 2100 and 2400. To address our concerns, NH DES submitted a 
letter withdrawing these provisions from Env-A 2100 and 2400. See 
letter to EPA dated July 8, 2013, available in the docket for today's 
action. The other regulations that we are proposing to approve herein 
(Env-A 807, 2700, and 2800) do not, even as a matter of state law, 
contain exceptions

[[Page 56558]]

for SSM periods or affirmative defense provisions.

III. Proposed Action

    EPA is proposing to approve, and incorporate into the New Hampshire 
SIP, four regulations and part of one regulation, except for 
affirmative defense provisions in two of the regulations which NH DES 
has withdrawn. The four regulations include one regulation submitted by 
the State of New Hampshire on March 31, 2011, Sand and Gravel Sources; 
Non-Metallic Mineral Processing Plants; Cement and Concrete Sources 
(Env-A 2800), effective October 1, 2010; and three regulations 
submitted on July 23, 2013, Particulate Matter and Visible Emissions 
Standards (Env-A 2100), effective April 23, 2013; Ferrous and Non-
Ferrous Foundries, Smelters, and Investment Casting Operations (Env-A 
2400), effective April 23, 2013; and Hot Mix Asphalt Plants (Env-A 
2700), effective February 16, 2013. As noted earlier, the affirmative 
defense provisions, which NH DES has withdrawn from its SIP submittals, 
are not included in this proposed approval action and are contained in 
state law only in Env-A 2103.03 and 2405. EPA is also proposing to 
approve Env-A 807 (``Testing for Opacity of Emissions''), effective 
October 31, 2002.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting comments 
to this proposed rule by following the instructions listed in the 
ADDRESSES section of this Federal Register.

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the New Hampshire Code of Administrative Rules stated in 
section III above. The EPA has made, and will continue to make, these 
documents generally available electronically through http://www.regulations.gov and/or in hard copy at the appropriate EPA office.

V. 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 proposed 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 proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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 (Public Law 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, the SIP 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 
country, 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 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 9, 2016.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2016-19869 Filed 8-19-16; 8:45 am]
 BILLING CODE 6560-50-P