[Federal Register Volume 86, Number 63 (Monday, April 5, 2021)]
[Rules and Regulations]
[Pages 17543-17545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06526]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R06-OAR-2011-0513; FRL-10021-41-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: Final 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 New 
Mexico and Albuquerque-Bernalillo County, New Mexico, for existing 
incinerators subject to the Other Solid Waste Incineration units (OSWI) 
emission guidelines (EG). These 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 accepting the 
negative declarations and amending the agency regulations in accordance 
with the requirements of the CAA.

DATES: This rule is effective on May 5, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2011-0513. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information 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 either electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Karolina Ruan Lei, EPA Region 6 
Office, Air and Radiation Division--State Planning and Implementation 
Branch, 1201 Elm Street, Suite 500, Dallas, TX 75270, (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. 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 ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    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; 85 FR 
2359). 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 the January 15, 
2020, rulemakings, we proposed and finalized to accept the negative 
declarations and amend the Code of Federal Regulations (CFR) in 
accordance with CAA requirements. 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 (85 FR 16270).
    On September 28, 2020, we published a supplemental notice of 
proposed rulemaking (SNPRM) (85 FR 60746). The SNPRM supplemented 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 the SNPRM, we appropriately expanded 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 September 28, 2020, supplemental proposal.
    All comments received on the original proposal and on the 
supplemental proposal are addressed in this final rule. As detailed 
below, we received one comment on the direct final rule and 
accompanying proposed rule during the public comment period that closed 
on February 14, 2020.\1\ No comments were received on the supplemental 
proposal during the comment period that closed on October 28, 2020. Our 
response to the comment received is presented below. After careful 
consideration of the comments, we have decided to finalize our action 
with no changes from the proposed action.
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    \1\ EPA Document ID No. EPA-R06-OAR-2011-0513-0001 (direct final 
rule) & EPA-R06-OAR-2011-0513-0002 (proposed rule).
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II. Response to Comment

    Comment: The commenter stated that the EPA should not allow for 
negative declarations and should ensure the State of New Mexico has a 
regulation in place to control emissions from solid waste incineration 
units throughout the State. The commenter adds that even though the 
State says they do not have any units subject to this regulation, the 
EPA should require the State to develop and implement a regulation in 
case a new source is constructed in the State. The

[[Page 17544]]

commenter asserts that sections 111(d) and 129 of the CAA require 
states to develop a regulation for the control of emissions from these 
units and, therefore, the EPA must require states to develop and 
implement a new regulation to control emissions from these units.
    Response: We disagree with the commenter's statements that the EPA 
should not allow for negative declarations. Federal regulations at 40 
CFR 60.23(b) and 62.06 specifically provide that if there are no 
existing sources of the designated pollutants in the state, the state 
may submit a letter of certification to that effect (i.e., a negative 
declaration) in lieu of a plan, which exempts the state from the 40 CFR 
part 60, subpart B, requirement to submit a CAA section 111(d)/129 
plan.
    We also disagree with the commenter's statements that the EPA 
should require the State to develop and implement a regulation in case 
a new source is constructed in the State. State plans under CAA section 
111(d)/129 apply only to existing facilities. The designated facilities 
to which the OSWI EG (40 CFR part 60, subpart FFFF) apply are OSWI and 
certain ACI \2\ 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. Any incinerator (OSWI or certain ACI) 
\3\ that commenced construction after December 9, 2004, or that 
commenced reconstruction or modification on or after June 16, 2006, 
would be subject to the OSWI New Source Performance Standards (NSPS) 
codified at 40 CFR part 60, subpart EEEE.\4\ The negative declarations 
for incinerators subject to the OSWI EG were submitted to the EPA by 
the New Mexico Environment Department (NMED) and the City of 
Albuquerque Environmental Health Department (AEHD) on June 15, 2020, 
and December 13, 2006, respectively. In addition, 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,\5\ 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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    \2\ 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 
60.3078.
    \3\ These OSWI and ACI are those incinerators described under 
the OSWI NSPS, codified at 40 CFR part 60, subpart EEEE, at 40 CFR 
60.2977 and 60.2888(b). The incinerators to which the OSWI NSPS 
apply are specified in 40 CFR 60.2885 and 60.2886, with limited 
exceptions as provided under 40 CFR 60.2887.
    \4\ The NSPS are developed and implemented by the EPA and are 
delegated to the states. The OSWI NSPS (40 CFR part 60, subpart 
EEEE) are incorporated by reference in the New Mexico State 
regulations at 20.2.77 NMAC, New Source Performance Standards, and 
in the Albuquerque-Bernalillo County regulations at 20.11.63 NMAC, 
New Source Performance Standards for Stationary Sources (83 FR 
46107, September 12, 2018; 80 FR 8799, February 19, 2015).
    \5\ 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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III. Final Action

    In this final action, the EPA is amending 40 CFR part 62, subpart 
GG, 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), 62.06, and 60.2982 
and sections 111(d) and 129 of the CAA.

IV. 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 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 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).
    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. The EPA will submit a report containing this rule 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 4, 2021. 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 17545]]

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.

    Dated: March 24, 2021.
David Gray,
Acting Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 62 as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart GG--New Mexico

0
2. Add an undesignated center heading and Sec.  62.7893 to read as 
follows:

Emissions From Existing Other Solid Waste Incineration Units


Sec.  62.7893  Identification of plan--negative declarations.

    Letters from the New Mexico Environment Department and the City of 
Albuquerque Environmental Health Department dated June 15, 2020, and 
December 13, 2006, respectively, certifying that there are no 
incinerators subject to the Other Solid Waste Incineration units (OSWI) 
Emission Guidelines, at 40 CFR part 60, subpart FFFF, within their 
respective jurisdictions in the State of New Mexico.

[FR Doc. 2021-06526 Filed 4-2-21; 8:45 am]
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