[Federal Register Volume 83, Number 33 (Friday, February 16, 2018)]
[Rules and Regulations]
[Pages 6972-6975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03251]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2017-0138; FRL-9973-19-Region 1]


Air Plan Approval; New Hampshire; Rules for Open Burning and 
Incinerators

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 August 9, 2011 and July 23, 2013. These SIP revisions 
establish rules for open burning and establish emission standards and 
operating practices for incinerators and wood waste burners that are 
not regulated pursuant to Federal incinerator standards. We are also 
approving revisions to the definitions of ``Incinerator'' and ``Wood 
Waste Burner,'' submitted by the State on July 23, 2013 and October 26, 
2016, respectively. This action is being taken in accordance with the 
Clean Air Act (CAA).

DATES: This rule is effective on March 19, 2018.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2017-0138. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, i.e., confidential 
business information (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 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

[[Page 6973]]

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.

Table of Contents

I. Background and Purpose
II. Response to Comments
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On January 10, 2003, New Hampshire Department of Environmental 
Services (NH DES) submitted a SIP revision for Env-A 1000 (Prevention, 
Abatement and Control of Open Source Air Pollution). On August 9, 2011, 
NH DES submitted an updated version of this regulation. Because the 
2011 submittal superseded the previous submission, the State withdrew 
the 2003 submittal on May 5, 2014. The withdrawal letter is included in 
the docket for this action.
    On July 23, 2013, NH DES submitted Env-A 1900 (Incinerators and 
Wood Waste Burners) and Env-A 101.104 (definition of ``Incinerator'') 
to EPA for approval. Env-A 1900 is not currently part of the federally-
approved New Hampshire SIP. The definition of the term ``Incinerator'' 
is currently part of the New Hampshire SIP, but is codified at Env-A 
101.59 \1\ and does not include a reference to ``wood-waste burners.'' 
The submitted definition of ``Incinerator'' adds ``wood-waste burners'' 
to the definition and is codified at Env-A 101.104. The current SIP-
approved version of the definition of ``Incinerator'' (Env-A 101.59) 
will be replaced by the new definition of that term (Env-A 101.104) as 
a result of this approval.
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    \1\ This appears to be an error because there are two different 
terms numbered 101.59 in Env-A 101, and the term ``incinerator'' is 
listed after term number 48 and before term number 50.
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    A definition of ``Wood Waste Burner'' is currently part of the New 
Hampshire SIP, but is codified as Env-A 101.95 and explicitly excludes 
incinerators. On October 26, 2016, NH DES submitted a revision of the 
definition of ``Wood Waste Burner'' (Env-A 101.219) to EPA for 
approval. This revised definition does not exclude incinerators. The 
current SIP-approved version of the definition of ``Wood Waste Burner'' 
(Env-A 101.95) will be replaced by the new definition of that term 
(Env-A 101.219) as a result of this approval.
    The version of Env-A 1900 (Incinerators and Wood Waste Burners) 
submitted by the State to EPA included an affirmative defense provision 
for malfunction, which is defined as a sudden and unavoidable breakdown 
of process or control equipment. On April 13, 2016, NH DES sent a 
letter to EPA withdrawing the affirmative defense provision in Env-A 
1900 (i.e., 1902.02). In addition, an earlier SIP submission of Env-A 
1900 had included an exception to the 20-percent visible emissions 
limit that would have allowed these emissions to be exceeded for one 
period of 6 continuous minutes in any 60-minute period during startup, 
shutdown, or malfunction. However, NH DES removed this exception from 
the July 23, 2013 submittal.
    These SIP revisions establish rules for open burning and establish 
emission standards and operating practices for incinerators and wood 
waste burners that are not regulated pursuant to Federal incinerator 
standards. New Hampshire also submitted revisions to the definitions of 
``Incinerator'' and ``Wood Waste Burner'' on July 23, 2013 and October 
26, 2016, respectively.
    On September 6, 2017, EPA published a Notice of Proposed Rulemaking 
(82 FR 42054) and Direct Final Rulemaking (DFRN) (82 FR 42037) 
proposing to approve and approving, respectively, the revisions 
submitted by New Hampshire on August 9, 2011, July 23, 2013, and 
October 26, 2016.
    In the DFRN, EPA stated that if an adverse comment were to be 
submitted to EPA by October 6, 2017, the action would be withdrawn and 
not take effect, and a final rule would be issued based on the NPR. EPA 
received a comment that is not relevant to this SIP action, and one 
adverse comment that is relevant, before the close of the comment 
period. Therefore, EPA withdrew the DFRN on November 6, 2017 (82 FR 
51349).
    This action is a final rule based on the NPR. A detailed discussion 
of New Hampshire's August 9, 2011; July 23, 2013; and October 26, 2016, 
SIP revisions, and EPA's rationale for approving these were provided in 
the DFRN and will not be restated here, except to the extent relevant 
to our response to the public comments we received.

II. Response to Comments

    EPA received public comments from anonymous commenters on our 
September 6, 2017 NPR. All of the comments are contained in the docket 
for this final action. One commenter submitted a comment that is not 
relevant to this SIP action and, therefore, requires no response. One 
commenter submitted two comments that are adverse and are discussed 
below.
    Comment 1: An anonymous commenter noted that the proposed revisions 
to New Hampshire's Env-A 1000 (Prevention, Abatement and Control of 
Open Source Air Pollution) removes the reference to National Ambient 
Air Quality Standards (NAAQS) nonattainment areas for particulate 
matter (PM) pollution that appears in the current SIP-approved version 
of Env-A 1000. The commenter stated that ``EPA should not be allowed to 
reduce emission standards just because a corporation or company 
incinerator wants to burn more wood. Wood is a particularly dirty fuel 
source that causes significant particulate matter pollution both 2.5 
microns and 10 microns.''
    Response 1: The SIP-approved Env-A 1000 (provision 1001.02) allowed 
for certain types of open burning if: (1) Not prohibited by local 
ordinance or officials having jurisdiction, such as state forest fire 
wardens, and (2) where the particular area has not been designated 
nonattainment in relation to the NAAQS for PM. Under Env-A 1000, such 
burning was allowed in NAAQS nonattainment areas for PM (when not 
prohibited by local ordinance or officials having jurisdiction) if 
written authorization had been obtained by the NH DES. In the revised 
version of Env-A 1000, the State has removed the restriction on these 
activities in nonattainment areas for particulates. EPA believes that 
the version of Env-A 1000 we are approving is consistent with CAA 
requirements for SIP revisions, notwithstanding the absence of 
references to nonattainment areas for NAAQS as a limiting condition on 
certain types of burning. Because there have never been any designated 
nonattainment areas for PM in New Hampshire, the current provision is 
not in fact imposing any restrictions on emissions. Thus, the emissions 
reductions attributable to the revised version of Env-A 1000 we are 
approving is functionally the same as the prior version. Moreover, we 
note that the current ambient levels of PM within the

[[Page 6974]]

State are below the currently applicable PM NAAQS. In the event that 
ambient PM in New Hampshire were to exceed the applicable NAAQS, we 
would expect the State to add additional emissions controls to address 
the appropriate sources to bring the area back into attainment.
    Comment 2: The same anonymous commenter asserted that the ``EPA 
also can't remove nuisance provisions as they can cover enforcement of 
NAAQS pollutants that cause nuisances to neighboring communities and 
disadvantages communities. Sometimes only nuisance provisions are the 
only enforcement mechanism available to the little people that can't 
afford big lawyers or consent decrees with big companies.''
    Response 2: New Hampshire's revision to Env-A 1000 removes two 
references to ``nuisance'' in the current SIP, which was approved in 
1994. EPA believes that the State's revised version of the regulation 
is approvable under the CAA because the term ``nuisance'' in Env-A 
1000, as defined in state law, is a broad concept that could be applied 
to prohibit impacts that bear no reasonable connection to the NAAQS and 
related air-quality goals of the CAA. The fact that something may cause 
a nuisance does not necessarily equate to a condition that would 
interfere with attainment or maintenance of the NAAQS. The wording of 
the prior version of the SIP provision was not sufficiently related to 
attainment and maintenance of the PM NAAQS to warrant inclusion in the 
SIP. See, for example, analogous instances in which EPA has removed 
from SIPs certain regulations that prohibit odors (61 FR 47058, 
September 6, 1996), or that contain a general prohibition against air 
pollution (63 FR 65557, November 27, 1998).

III. Final Action

    EPA is approving and incorporating two regulations into the New 
Hampshire SIP. The two regulations include revised Env-A 1000 
(Prevention, Abatement and Control of Open Source Air Pollution) 
submitted by the State of New Hampshire on August 9, 2011, effective on 
May 1, 2011; and Env-A 1900 (Incinerators and Wood Waste Burners) 
submitted by the State on July 23, 2013, effective April 23, 2013, 
except for the withdrawn affirmative defense provision. The revised 
version of Env-A 1000 that we are approving into the SIP will replace 
the existing SIP-approved version of Env-A 1000.
    In addition, EPA is approving a revised definition of 
``Incinerator'' (Env-A 101.104), submitted by the State on July 23, 
2013, effective April 23, 2013, which replaces the definition of 
``Incinerator'' currently in the New Hampshire SIP (numbered Env-A 
101.59). We are also approving a revised definition of ``Wood Waste 
Burner'' (Env-A 101.219), submitted by the State on October 26, 2016, 
effective January 14, 2005, which replaces the definition of ``Wood 
Waste Burner'' currently in the New Hampshire SIP (numbered Env-A 
101.95). Thus, the SIP at Env-A 101.59 and at Env-A 101.95 will read 
``[reserved].''
    New Hampshire organizes Env-A 101 (Definitions) alphabetically, and 
also assigns a codification number, in sequential order, to each 
defined term. Because the State's SIP submissions did not include the 
entirety of Env-A 101, and the State has added other definitions to 
Env-A 101 over time (not all of which are SIP-approved), our approval 
of the two definitions in this action will result in the numbered 
codification assigned to the defined terms being out of numerical 
sequence in the SIP. However, the two defined terms will still be in 
alphabetical order.

IV. 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 materials generally available through https://www.regulations.gov, and/or at the EPA Region 1 Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).
    Therefore, these materials have been approved by EPA for inclusion 
in the SIP, have been incorporated by reference by EPA into that plan, 
are fully federally enforceable under sections 110 and 113 of the CAA 
as of the effective date of the final rulemaking of EPA's approval, and 
will be incorporated by reference by the Director of the Federal 
Register in the next update to the SIP compilation.\2\
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    \2\ 62 FR 27968 (May 22, 1997).
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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 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 (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). 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

[[Page 6975]]

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. Section 
804, however, exempts from section 801 the following types of rules: 
Rules of particular applicability; rules relating to agency management 
or personnel; and rules of agency organization, procedure, or practice 
that do not substantially affect the rights or obligations of nonagency 
parties. 5 U.S.C. 804(3). Because this is a rule of particular 
applicability, EPA is not required to submit a rule report regarding 
this action under section 801. 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 November 
20, 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)).

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: February 6, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA New England.

    For the reasons set forth in the preamble, 40 CFR part 52 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 paragraph (c), amend the table by:
0
a. Adding four entries for``Env-A 100'' after the entry ``Env-A 100; 
Organizational Rules: Definitions'';
0
b. Revising the entry ``Env-A 1000''; and
0
c. Adding in numerical order an entry ``Env-A 1900''.
    The revision and additions read as follows:


Sec.  52.1520  Identification of plan.

* * * * *
    (c) * * *

                                     EPA-Approved New Hampshire Regulations
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                                                            State       EPA approval date
         State citation              Title/subject     effective date          \1\              Explanations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Env-A 100.......................  Definition of            04/29/2003  02/16/2018, [Insert  Remove Part Env-A
                                   ``Incinerator''.                     Federal Register     101.59, definition
                                                                        citation].           of ``Incinerator''
                                                                                             and replace with
                                                                                             ``[reserved].''
Env-A 100.......................  Definition of            04/29/2003  02/16/2018, [Insert  Remove Part Env-A
                                   ``Wood Waste                         Federal Register     101.95, definition
                                   Burner''.                            citation].           of ``Wood Waste
                                                                                             Burner'' and
                                                                                             replace with
                                                                                             ``[reserved].''
Env-A 100.......................  Definition of            04/23/2013  02/16/2018, [Insert  Approve Part Env-A
                                   ``Incinerator''.                     Federal Register     101.104, definition
                                                                        citation].           of ``Incinerator.''
Env-A 100.......................  Definition of            01/14/2005  02/16/2018, [Insert  Approve Part Env-A
                                   ``Wood Waste                         Federal Register     101.219, definition
                                   Burner''.                            citation].           of ``Wood Waste
                                                                                             Burner.''
 
                                                  * * * * * * *
Env-A 1000......................  Control of Open          05/01/2011  02/16/2018, [Insert  Approve Part Env-A
                                   Burning.                             Federal Register     1000 ``Prevention,
                                                                        citation].           Abatement and
                                                                                             Control of Open
                                                                                             Source Air
                                                                                             Pollution.''
 
                                                  * * * * * * *
Env-A 1900......................  Emission Standards       04/23/2013  02/16/2018, [Insert  Approve Part Env-A
                                   and Operating                        Federal Register     1900 ``Incinerators
                                   Practices for                        citation].           and Wood Waste
                                   Incinerators.                                             Burners.''
 
                                                  * * * * * * *
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\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. 2018-03251 Filed 2-15-18; 8:45 am]
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