[Federal Register Volume 85, Number 155 (Tuesday, August 11, 2020)]
[Proposed Rules]
[Pages 48485-48487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16670]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R06-OAR-2020-0357; FRL-10012-53-Region 6]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; Arkansas, New Mexico, and 
Albuquerque-Bernalillo County, New Mexico; Control of Emissions From 
Existing Commercial and Industrial Solid Waste Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is notifying the public that we 
have received CAA section 111(d)/129 negative declarations from 
Arkansas, New Mexico, and Albuquerque-Bernalillo County, New Mexico, 
for existing incinerators subject to the Commercial and Industrial 
Solid Waste Incineration units (CISWI) emission guidelines (EG). These 
negative declarations certify that incinerators subject to CISWI EG and 
the requirements of sections 111(d) and 129 of the CAA do not exist 
within the jurisdictions of Arkansas, New Mexico, and Albuquerque-
Bernalillo County. The EPA is proposing to accept the negative 
declarations and amend the CFR in accordance with the requirements of 
the CAA.

DATES: Written comments must be received on or before September 10, 
2020.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2020-0357, at https://www.regulations.gov or via email to [email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. 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 Karolina Ruan Lei, (214) 
665-7346, [email protected]. For the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov. While all documents in the 
docket are listed in the index, some information may not be publicly 
available due to docket file size restrictions or content (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Karolina Ruan Lei, EPA Region 6 
Office, Air and Radiation Division--State Planning and Implementation 
Branch, (214) 665-7346, [email protected]. Out of an abundance 
of caution for members of the public and our staff, the EPA Region 6 
office will be closed to the public to reduce the risk of transmitting 
COVID-19. We encourage the public to submit comments via https://www.regulations.gov, as there will be a delay in processing mail and no 
courier or hand deliveries will be accepted. Please call or email the 
contact listed above if you need

[[Page 48486]]

alternative access to material indexed but not provided in the docket.

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

I. Background

    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. CAA section 129 directs the EPA 
to establish standards of performance for new sources (NSPS) and 
emissions guidelines (EG) for existing sources for each category of 
solid waste incinerator specified in CAA section 129. Under CAA section 
129, NSPS and EG must contain numerical emissions limitations for 
particulate matter, opacity (as appropriate), sulfur dioxide, hydrogen 
chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, 
and dioxins and dibenzofurans. While NSPS are directly applicable to 
new sources (affected facilities), EG for existing sources (designated 
facilities) are intended for states to use to develop a state plan to 
submit to the EPA. Once approved by the EPA, the state plan becomes 
federally enforceable. If a state does not submit an approvable state 
plan to the EPA, the EPA is responsible for developing, implementing, 
and enforcing a federal plan.
    The regulations at 40 CFR part 60, subpart B, contain general 
provisions applicable to the adoption and submittal of state plans for 
controlling designated pollutants from designated facilities. 
Additionally, 40 CFR part 62, subpart A, provides the procedural 
framework by which the EPA will approve or disapprove such plans 
submitted by a state. When designated facilities are located in a 
state, the state must then develop and submit a plan for the control of 
the designated pollutant(s). However, 40 CFR 60.23(b) and 40 CFR 62.06 
provide that if there are no designated facilities of the designated 
pollutant(s) in the state, the state may submit a letter of 
certification to that effect (i.e., negative declaration) in lieu of a 
plan. The negative declaration exempts the state from the requirements 
of subpart B that require the submittal of a CAA section 111(d)/129 
plan.
    On December 1, 2000, EPA promulgated the CISWI NSPS at 40 CFR part 
60, subpart CCCC, and the CISWI EG at 40 CFR part 60, subpart DDDD (65 
FR 75338). On March 21, 2011, after voluntarily remanding the 2000 
CISWI NSPS and EG, the EPA promulgated final CISWI NSPS and EG (76 FR 
15704). Correspondingly, on the same date, EPA promulgated a final rule 
under the Resource Conservation and Recovery Act (RCRA) to identify 
which non-hazardous secondary materials, when used as fuels or 
ingredients in combustion units, are ``solid wastes'' (76 FR 15456).\1\ 
EPA subsequently promulgated amendments to both rules on February 7, 
2013: Commercial and Industrial Solid Waste Incineration Units: 
Reconsideration and Final Amendments; Non-Hazardous Secondary Materials 
That Are Solid Waste; Final Rule (78 FR 9112). Reconsideration of 
certain aspects of the final CISWI rule resulted in minor amendments 
(81 FR 40956, June 23, 2016).\2\ On April 16, 2019, EPA finalized 
further amendments to the CISWI NSPS and EG in order to provide clarity 
and address implementation issues (84 FR 15846).\3\
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    \1\ See 40 CFR part 241, Solid Wastes Used as Fuels or 
Ingredients in Combustion Units, also known as the ``Non-Hazardous 
Secondary Material Rule.'' The identification of solid waste in the 
Non-Hazardous Secondary Material Rule is used to determine whether a 
combustion unit is required to meet the emissions standards for 
solid waste incineration units issued under sections 111 and 129 of 
the Act, or meet the emissions standards for commercial, industrial, 
and institutional boilers issued under section 112 of the Act.
    \2\ In the June 23, 2016, final action, the EPA finalized 
amendments on these four topics: Definition of ``continuous emission 
monitoring system (CEMS) data during startup and shutdown periods;'' 
particulate matter (PM) limit for the waste-burning kiln 
subcategory; fuel variability factor (FVF) for coal-burning energy 
recovery units (ERUs); and the definition of ``kiln.''
    \3\ In the April 16, 2016, final action, the EPA made technical 
amendments to correct and clarify various parts of the June 23, 2016 
final rule; this includes issues with implementation of the 
standards, testing and monitoring issues and inconsistencies, and 
other regulatory provisions.
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    The CISWI NSPS and EG were significantly revised in the February 7, 
2013, rulemaking, and the subsequent final rulemakings on June 23, 
2016, and April 16, 2019, contained minor amendments to the CISWI rules 
that did not make any changes to the applicability of the designated 
facilitates, including 40 CFR 60.2505, ``Am I affected by this 
subpart?''. As provided by 40 CFR 60.2505, the designated facilities to 
which the CISWI EG apply are CISWI and air curtain incinerators (ACI) 
\4\ that commenced construction on or before June 4, 2010, or for which 
modification or reconstruction was commenced on or before August 7, 
2013, with limited exceptions as provided under 40 CFR 60.2555.
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    \4\ These air curtain incinerators (ACI) that are subject to the 
CISWI EG at 40 CFR part 60, subpart DDDD, are those ACI that may not 
fit the definition of a ``CISWI'' under the CISWI EG. See 40 CFR 
60.2875.
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    In order to fulfill obligations under CAA sections 111(d) and 129, 
the Arkansas Department of Environmental Quality (ADEQ), New Mexico 
Environment Department (NMED), and City of Albuquerque Environmental 
Health Department (AEHD) submitted negative declarations for 
incinerators subject to the CISWI EG for their individual air pollution 
control jurisdictions.\5\ The submittal of these negative declarations 
exempts Arkansas and New Mexico (including Albuquerque-Bernalillo 
County) from the requirement to submit a state plan under 40 CFR part 
60, subpart DDDD.
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    \5\ These CISWI negative declarations from ADEQ, NMED and AEHD 
do not cover sources located in Indian country.
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    ADEQ, NMED and AEHD each determined that there are no existing 
incinerators subject to the CISWI EG in accordance with CAA sections 
111(d) and 129 requirements in their individual air pollution control 
jurisdictions. In order to fulfill obligations under CAA sections 
111(d) and 129, ADEQ, NMED and AEHD submitted negative declaration 
letters to the EPA on April 26, 2017, June 15, 2020, and March 4, 2020, 
respectively. A copy of each negative declaration letter is included in 
the docket for this rulemaking (Docket No. EPA-R06-OAR-2020-0357).

II. Proposed Action

    The EPA is proposing to acknowledge receipt of the negative 
declaration letters from Arkansas, New Mexico, and Albuquerque-
Bernalillo County, New Mexico, and amend 40 CFR part 62 in accordance 
with the requirements at 40 CFR 60.23(b), 40 CFR 62.06, 40 CFR 60.2510, 
40 CFR 60.2530, and sections 111(d) and 129 of the CAA. These negative 
declarations submitted by ADEQ, NMED, and AEHD certify that there are 
no existing incinerators subject to 40 CFR part 60, subpart DDDD, in 
their respective jurisdictions. If a designated facility (i.e., 
existing incinerators subject to the CISWI EG) is later found within 
the aforementioned jurisdictions after publication of a final action, 
then the overlooked facility will become subject to the requirements of 
the federal plan for that designated facility. The federal plan will no 
longer apply if we subsequently receive and approve the section 111(d)/
129 plan from the jurisdiction with the overlooked facility.

[[Page 48487]]

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a CAA 
section 111(d)/129 submission that complies with the provisions of the 
Act and applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 
7429; 40 CFR part 60, subparts B and DDDD; and 40 CFR part 62, subpart 
A. With regard to negative declarations for designated facilities 
received by the EPA from states, the EPA's role is to notify the public 
of the receipt of such negative declarations and revise 40 CFR part 62 
accordingly. 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because this action is not significant under 
Executive Order 12866;
     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 CAA; and
     Does not provide the 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).
    This rule also does not have Tribal implications because it will 
not have a substantial direct effect on one or more Indian Tribes, on 
the relationship between the Federal Government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian Tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

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

    Dated: July 28, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-16670 Filed 8-10-20; 8:45 am]
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