[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Proposed Rules]
[Pages 60746-60748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20678]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R06-OAR-2011-0513; FRL-10014-60-Region 6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: In this supplemental notice of proposed rulemaking, the 
Environmental Protection Agency (EPA) is supplementing the proposal 
published on January 15, 2020, and pursuant to the Federal Clean Air 
Act (CAA or the Act), the EPA is notifying the public that we have 
received CAA section 111(d)/129 negative declarations from New Mexico 
and Albuquerque-Bernalillo County, New Mexico, for existing 
incinerators subject to the Other Solid Waste Incineration units (OSWI) 
emission guidelines (EG). The information provided in the negative 
declaration letter previously submitted by New Mexico on October 11, 
2007, and addressed in our January 15, 2020 proposal, was clarified and 
reaffirmed in a June 15, 2020, negative declaration letter from New 
Mexico. The negative declarations from New Mexico and Albuquerque-
Bernalillo County, New Mexico, certify that incinerators subject to the 
OSWI EG and the requirements of sections 111(d) and 129 of the CAA do 
not exist within the jurisdictions of New Mexico and Albuquerque-
Bernalillo County. The EPA is supplementing our previous proposal and 
proposing to accept the negative declarations and amend the Code of 
Federal Regulations (CFR) in accordance with the requirements of the 
CAA.

DATES: Written comments must be received on or before October 28, 2020.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2011-0513, 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 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

A. Rulemaking History

    On January 15, 2020, we published a direct final rule and 
accompanying proposed rule notifying the public that we had received 
CAA section 111(d)/129 negative declarations from New Mexico and 
Albuquerque-Bernalillo County for existing OSWI (85 FR 2316). These 
negative declarations certify that existing OSWI subject to the 
requirements of sections 111(d) and 129 of the CAA do not exist within 
the specified jurisdictions in New Mexico. The direct final rule was 
published without prior proposal because we anticipated no adverse 
comments. We stated in the direct final rule that if we received 
relevant adverse comments by February 14, 2020, we would publish a 
timely withdrawal in the Federal Register. We received a relevant 
adverse comment on the direct final rule, and we withdrew the direct 
final rule on March 23, 2020. We will address all comments received on 
the original proposal and on this supplemental proposal in our final 
action.
    This supplemental notice of proposed rulemaking (SNPRM) supplements 
the proposal published on January 15, 2020, where we proposed to notify 
the public that we received CAA section 111(d)/129 negative 
declarations from New Mexico and Albuquerque-Bernalillo County, New 
Mexico, for existing OSWI; these negative declarations certify that 
existing OSWI subject to the requirements of sections 111(d) and 129 of 
the CAA do not exist within the specified jurisdictions in New Mexico. 
In order to reaffirm and clarify the prior negative declaration, New 
Mexico submitted a revised negative declaration for incinerators 
subject to the OSWI EG by letter dated June 15, 2020; this letter 
clarifies that incinerators (including OSWI and air curtain 
incinerators (ACI)) subject to the OSWI EG do not exist within its air 
quality jurisdiction. In this SNPRM, we are appropriately expanding the 
inclusion of the facilities addressed in the negative declarations from 
New Mexico and Albuquerque-Bernalillo County from ``existing OSWI'' to 
``incinerators subject to the OSWI EG''. The term ``incinerators 
subject to the OSWI EG'' is more technically and legally accurate as 
all facilities affected by the OSWI EG are required to be addressed in 
state plans and negative declarations. The Albuquerque-Bernalillo 
County negative declaration letter that was submitted on December 13, 
2006, appropriately addressed the subject facilities. Details on CAA 
sections 111(d) and 129, the OSWI EG, and the negative declarations 
submitted by New Mexico and Albuquerque-Bernalillo County, can be found 
in the following subsections.

B. Clean Air Act Sections 111(d) and 129

    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

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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.

C. Other Solid Waste Incineration Emission Guidelines

    EPA promulgated OSWI NSPS and EG on December 16, 2005, codified at 
40 CFR part 60, subparts EEEE and FFFF, respectively (70 FR 74870). 
Thus, states were required to submit plans for incinerators subject to 
the OSWI EG pursuant to sections 111(d) and 129 of the Act and 40 CFR 
part 60, subpart B. The designated facilities to which the current OSWI 
EG apply are OSWI and certain ACI \1\ that commenced construction on or 
before December 9, 2004, and were not modified or reconstructed on or 
after June 16, 2006, as specified in 40 CFR 60.2991 and 60.2992, with 
limited exceptions as provided under 40 CFR 60.2993. The EPA proposed 
revisions to the OSWI EG and NSPS on August 31, 2020 (85 FR 54178). 
When the EPA finalizes the revisions to the OSWI EG,\2\ each state (and 
air quality control jurisdiction) will need to submit a negative 
declaration or plan, as applicable, for those sources subject to the 
requirements of the final revised OSWI EG.
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    \1\ The air curtain incinerators (ACI) subject to the OSWI EG at 
40 CFR part 60, subpart FFFF do not fit the definition of a 
``OSWI,'' as defined in the OSWI EG. See 40 CFR 60.2994(b) and 40 
CFR 60.3078.
    \2\ The court ordered deadline to promulgate the final OSWI 
review is May 31, 2021. Sierra Club v. Wheeler, 330 F. Supp. 3d 407. 
(D.D.C. 2018).
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D. Negative Declarations From New Mexico and Albuquerque-Bernalillo 
County

    In order to fulfill obligations under CAA sections 111(d) and 129, 
the New Mexico Environment Department (NMED) and the City of 
Albuquerque Environmental Health Department (AEHD) submitted negative 
declarations for incinerators subject to the OSWI EG for their 
individual air pollution control jurisdictions.\3\ The submittal of 
these negative declarations exempts New Mexico (including Albuquerque-
Bernalillo County) from the requirement to submit a state plan under 40 
CFR part 60, subpart FFFF.
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    \3\ The OSWI negative declarations from NMED and AEHD do not 
cover sources located in Indian country.
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    NMED and AEHD each determined that there are no existing 
incinerators subject to the OSWI EG in accordance with the 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, NMED and AEHD submitted negative declaration letters to 
the EPA on June 15, 2020, and December 13, 2006, respectively. As 
stated earlier in this notice, the information provided in the negative 
declaration letter previously submitted by NMED on October 11, 2007, 
was clarified and reaffirmed in NMED's June 15, 2020, negative 
declaration letter. A copy of each negative declaration letter is 
included in the docket for this rulemaking (Docket No. EPA-R06-OAR-
2011-0513).

II. Supplemental Proposed Action

    In this SNPRM, the EPA is supplementing our previous proposal and 
proposing to amend 40 CFR part 62 to reflect receipt of the negative 
declaration letters from NMED and AEHD, received on June 15, 2020, and 
December 13, 2006, respectively, certifying that there are no existing 
incinerators subject to 40 CFR part 60, subpart FFFF, in their 
respective jurisdictions in accordance with 40 CFR 60.23(b), 40 CFR 
62.06, 40 CFR 60.2982, and sections 111(d) and 129 of the CAA.

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 FFFF; 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 the reasons stated above, 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).

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    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: September 15, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-20678 Filed 9-25-20; 8:45 am]
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