[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)]
[Rules and Regulations]
[Pages 78052-78054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26598]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2016-0285; FRL-9953-83-Region 1]


Air Plan Approval; NH; Rules for Reducing Particulate Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 approving 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: This rule is effective on December 7, 2016.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2016-0285. All documents in the docket 
are listed on the http://www.regulations.gov Web site. 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 at http://www.regulations.gov or at the 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 a.m. to 4:30 p.m., excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Environmental 
Scientist, 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. Final Action
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. Background and Purpose

    On August 22, 2016 (81 FR 56556), EPA published a Notice of 
Proposed Rulemaking (NPR) for the State of New Hampshire.
    The NPR proposed approval of State Implementation Plan (SIP) 
revisions submitted by the State of New Hampshire on March 31, 2011 and 
July 23, 2013. The NPR also proposed approval of a part of a SIP 
revision submitted by the state on March 12, 2003. The March 2011 
submittal 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)). The 
July 2013 submittal

[[Page 78053]]

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. Therefore, the NPR also proposed to approve 
Env-A 807, which was part of a SIP revision submitted by New Hampshire 
on March 12, 2003.
    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 SSM SIP Call proposal in February 2013 (78 FR 
12460), a federal court ruled that the Clean Air Act precludes 
authority of the EPA to create affirmative defense provisions. On April 
13, 2016, New Hampshire Department of Environmental Services (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). Therefore, EPA 
is approving all of the SIP revisions without the withdrawn portions.
    Rationale for EPA's proposed action are explained in the NPR and 
will not be restated here. No public comments were received on the NPR.

II. Final Action

    EPA is approving, and incorporating 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 approval action and are contained in state law only in 
Env-A 2103.03 and 2405. EPA is also approving and incorporating into 
the New Hampshire's SIP, New Hampshire's Env-A 807 (``Testing for 
Opacity of Emissions''), effective October 31, 2002.

III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the New 
Hampshire Code of Administrative Rules described in the amendments to 
40 CFR part 52 set forth below. The EPA has made, and will continue to 
make, these documents generally available through http://www.regulations.gov.

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 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 (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, 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).
    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 January 6, 2017. 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. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

[[Page 78054]]

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: September 27, 2016.
Michael Kenyon,
Acting Regional Administrator, EPA New England.

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

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 
five entries for state citation ``Env-A 807'', ``Env-A 2100'', ``Env-A 
2400'', ``Env-A 2700'', and ``Env-A 2800'' in alphanumeric order to 
read as follows:


Sec.  52.1520  Identification of plan.

* * * * *
    (c) * * *

                                     EPA-Approved New Hampshire Regulations
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                                                                                EPA approval
       State citation           Title/subject        State effective date         date \1\        Explanations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Env-A 807...................  Testing and        October 31, 2002...........  November 7, 2016  Approve Part Env-
                               Monitoring                                      [Insert Federal   A 807 ``Testing
                               Procedures.                                     Register          for Opacity of
                                                                               citation].        Emissions.''
 
                                                  * * * * * * *
Env-A 2100..................  Particulate        April 23, 2013.............  November 7, 2016  Approve Chapter
                               Matter and                                      [Insert Federal   Env-A 2100,
                               Visible                                         Register          except Part Env-
                               Emissions                                       citation].        A 2103.03
                               Standards.                                                        ``Affirmative
                                                                                                 Defense to
                                                                                                 Penalty
                                                                                                 Action,'' which
                                                                                                 NH DES did not
                                                                                                 submit for
                                                                                                 approval.
 
                                                  * * * * * * *
Env-A 2400..................  Ferrous and Non-   April 23, 2013.............  November 7, 2016  Approve Chapter
                               Ferrous                                         [Insert Federal   Env-A 2400,
                               Foundries,                                      Register          except PART Env-
                               Smelters, and                                   citation].        A 2405
                               Investment                                                        ``Affirmative
                               Casting                                                           Defenses for
                               Operations.                                                       Violations of
                                                                                                 Visible
                                                                                                 Emission
                                                                                                 Standards,''
                                                                                                 which NH DES
                                                                                                 did not submit
                                                                                                 for approval.
Env-A 2700..................  Hot Mix Asphalt    February 16, 2013..........  November 7, 2016  ................
                               Plants.                                         [Insert Federal
                                                                               Register
                                                                               citation].
 
                                                  * * * * * * *
Env-A 2800..................  Sand and Gravel    October 1, 2010............  November 7, 2016  ................
                               Sources; Non-                                   [Insert Federal
                               Metallic Mineral                                Register
                               Processing                                      citation].
                               Plants; Cement
                               and Concrete
                               Sources.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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. 2016-26598 Filed 11-4-16; 8:45 am]
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