[Federal Register Volume 83, Number 52 (Friday, March 16, 2018)]
[Proposed Rules]
[Pages 11652-11654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05316]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R01-OAR-2018-0069; FRL-9975-17--Region 1]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; New Hampshire; Delegation of Authority

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a request from the New Hampshire Department of Environmental 
Services (NH DES) for delegation of authority to implement and enforce 
the Federal Plan Requirements for Sewage Sludge Incineration Units 
Constructed on or before October 14, 2010 (SSI Federal Plan). under 
Clean Air Act (CAA).

DATES: Written comments must be received on or before April 16, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2018-0069 at 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

[[Page 11653]]

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 www.epa.gov/dockets/commenting-epa-dockets. 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 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: Patrick Bird, Air Permits, Toxic, & 
Indoor Programs Unit, U.S. Environmental Protection Agency, Region 1, 5 
Post Office Square--Suite 100, Mail Code: OEP05-2, Boston, MA 02109-
3912, tel. (617) 918-1287, email [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What action is the EPA proposing to take today?
II. What are the CAA requirements?
III. What was submitted by the NH DES and how did the EPA respond?
IV. What is the EPA's proposed conclusion?
V. Statutory and Executive Order Reviews

I. What action is the EPA proposing to take today?

    The EPA is proposing to approve the NH DES request for delegation 
of authority to implement and enforce the SSI Federal Plan found at 40 
CFR part 62 subpart LLL and to adhere to the terms and conditions 
prescribed in the Memorandum of Agreement (MoA) signed by the EPA and 
the NH DES, as further explained further in this action. The purpose of 
this SSI Federal Plan delegation is to transfer primary implementation 
and enforcement responsibility from the EPA to the NH DES for all 
affected facilities within the jurisdiction of the State of New 
Hampshire. However, nothing in this action, nor in the MoA, shall be 
construed to prohibit the EPA from enforcing the SSI Federal Plan.

II. What are the CAA requirements?

    Sections 111(d) and 129 of the CAA require states to submit plans 
to control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities (designated facilities) whenever standards 
of performance have been established under section 111(b) for new 
sources of the same type and the EPA has established emission 
guidelines for such existing sources. A designated pollutant is any 
pollutant for which no air quality criteria has been issued or which is 
not included on a list published under section 108(a) (national ambient 
air quality standards) or section 112 (hazardous air pollutants) of the 
CAA, but emissions of which would be subject to a standard of 
performance for new stationary sources under section 111(b). In 
addition, section 129 of the CAA also requires the EPA to promulgate 
emission guidelines for solid waste incineration units that emit 
specific air pollutants or a mixture of air pollutants. These 
pollutants include organics (dioxins and dibenzofurans), carbon 
monoxide, metals (cadmium, lead and mercury), acid gases (hydrogen 
chloride, sulfur dioxide and oxides of nitrogen), particulate matter 
and opacity (as appropriate).
    On March 21, 2011 (76 FR 15372), the EPA promulgated new source 
performance standards and emission guidelines for sewage sludge 
incineration (SSI) units at 40 CFR part 60 subparts LLLL and MMMM, 
respectively. The designated facility to which the emission guidelines 
applies is existing SSI units, as stipulated in subpart MMMM, that 
commenced construction on or before October 14, 2010.
    Pursuant to section 129 of the CAA, state plan requirements must be 
``at least as protective'' as the emission guidelines and become 
federally enforceable upon approval by the EPA. The procedures for 
adoption and submittal of state plans are codified in 40 CFR part 60, 
subpart B. For states that fail to submit a plan, the EPA is required 
to develop and implement a Federal Plan within two years following 
promulgation of the emission guidelines. The EPA implementation and 
enforcement of the Federal Plan is viewed as an interim measure until 
states assume their role as the preferred implementers of the emission 
guidelines requirements stipulated in the Federal Plan. Accordingly, 
the EPA promulgated the SSI Federal Plan on April 29, 2016. In this 
rulemaking, the EPA strongly encouraged state and local agencies in 
jurisdictions that did not submit approvable State Plans to request 
delegation of the SSI Federal Plan so that they can have the primary 
responsibility for implementing and enforcing regulations affecting 
existing source SSI unit, consistent with the intent of section 129 of 
the CAA.

III. What was submitted by the NH DES and how did the EPA respond?

    On November 14, 2017, the NH DES submitted to the EPA a request for 
delegation of authority to implement and enforce the SSI Federal Plan. 
The EPA evaluated the NH DES request for delegation pursuant to the 
provisions of the SSI Federal Plan and the EPA's Delegation Manual.\1\ 
Section 62.15865 of the SSI Federal Plan establishes that a state may 
meet its CAA section 111(d)/129 obligations by submitting an acceptable 
written request for delegation of the Federal Plan that includes the 
following requirements: (1) A demonstration of adequate resources and 
legal authority to administer and enforce the Federal Plan; (2) an 
inventory of affected SSI units, an inventory of emissions from 
affected SSI units, and provisions for state progress reports (see 
items under Sec.  [thinsp]60.5015(a)(1), (2) and (7) from the SSI 
emission guidelines); (3) certification that the hearing on the state 
delegation request, similar to the hearing for a state plan submittal, 
was held, a list of witnesses and their organizational affiliations, if 
any, appearing at the hearing, and a brief written summary of each 
presentation or written submission; and (4) a commitment to enter into 
a MoA with the Regional Administrator that sets forth the terms, 
conditions and effective date of the delegation and that serves as the 
mechanism for the transfer of authority.
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    \1\ Section 7-139 of the EPA's Delegation Manual is entitled 
``Implementation and Enforcement of 111(d)(2) and 111(d)/129(b)(3) 
Federal Plans'' and the reader may refer to it in the docket for 
this rulemaking at www.regulations.gov (see Docket ID Number EPA-
R01-OAR-2018-0069).
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    In parallel with our review of the delegation request, the EPA 
prepared the MoA which defines the policies, responsibilities, and 
procedures by which the SSI Federal Plan will be administered by both 
the NH DES and the EPA. The MoA is the mechanism for the transfer of 
responsibility from the EPA to the NH DES.

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    Both the EPA and the NH DES signed the MoA in which the parties 
agreed to the terms and conditions regarding the responsibility to 
implement and enforce the policies, responsibilities and procedures of 
the SSI Federal Plan. The MoA became effective upon signature by the 
EPA on December 22, 2017.
    Under the EPA's Delegation Manual, item 7-139, the Regional 
Administrator is authorized to delegate implementation and enforcement 
of sections 111(d)/129 Federal Plans to state environmental agencies. 
The Regional Administrator may consider delegating authority to 
implement and enforce Federal Plans to a state provided the following 
conditions are met: (1) The state does not already have an EPA approved 
State Plan; (2) the state submits a demonstration of adequate resources 
and legal authority to administer and enforce the Federal Plan; and (3) 
the state enters into a MoA with the Regional Administrator that sets 
forth the terms, conditions and effective date of the delegation and 
that serves as the mechanism for the transfer of authority.
    NH DES has met all of the EPA's delegation requirements as 
described above. The reader may view the NH DES letter to the EPA 
requesting delegation and the MoA signed by both parties at 
www.regulations.gov, identified by Docket ID Number EPA-R01-OAR-2018-
0069.

IV. What is the EPA's proposed conclusion?

    The EPA has evaluated the NH DES submittal for consistency with the 
CAA, EPA regulations, and EPA policy. The NH DES has met all the 
requirements of the EPA's guidance for obtaining delegation of 
authority to implement and enforce the SSI Federal Plan. The NH DES 
entered into a MoA with the EPA, and it became effective on December 
22, 2017. Accordingly, the EPA is proposing to approve the NH DES 
request dated November 14, 2017 for delegation of authority to 
implement and enforce the Federal Plan for existing SSI units. The EPA 
will continue to retain certain specific authorities reserved to the 
EPA in the SSI Federal Plan and as indicated in the MoA (e.g., 
authority to approve major alternatives to test methods or monitoring, 
etc.).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
state plan submission that complies with the provisions of the CAA 
section 111(d) and 129(b)(2) and applicable Federal regulations. 42 
U.S.C. 7411(d) and 7429(b)(2); 40 CFR 62.02(a). Thus, in reviewing 
state plan submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves a state delegation request as meeting Federal 
requirements and does not impose additional requirements beyond those 
already 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 Orders12866 (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, this rulemaking does not 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 62

    Environmental protection, Air pollution control, Administrative 
practice and procedure, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Waste treatment and disposal.

    Dated: March 8, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018-05316 Filed 3-15-18; 8:45 am]
 BILLING CODE 6560-50-P