[Federal Register Volume 87, Number 242 (Monday, December 19, 2022)]
[Rules and Regulations]
[Pages 77522-77526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27134]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R01-OAR-2021-0443; FRL-8778-02-R1]


Approval and Promulgation of State Plan for Designated Facilities 
and Pollutants: New Hampshire; 111(d)/129 Revised State Plan for 
Existing Large and Small Municipal Waste Combustors

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
Clean Air Act (CAA) state plan revision for existing large and small 
municipal waste combustors (MWCs) submitted by the New Hampshire 
Department of Environmental Services (NHDES) on October 1, 2018. The 
revised state plan incorporates fuel quality standards and test methods 
for large MWC facilities that combust processed wood residue (PWR) from 
construction and demolition (C&D) debris.

DATES: This rule is effective on January 18, 2023. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of January 18, 2023.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OAR-2021-0443. 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, i.e., 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 https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA 
Region 1 Regional Office, Air and Radiation Division, 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 and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT: Jessica Kilpatrick, Air Permits, 
Toxics, and Indoor Programs Branch, Air and Radiation Division, U.S. 
Environmental Protection Agency, Region 1, 5 Post Office Square, Mail 
Code: 05-2, Boston, MA 02109-0287. Telephone: 617-918-1652. Fax: 617-
918-0652 Email: [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

    EPA published a Notice of Proposed Rulemaking (NPRM) on September 
3, 2021 (86 FR 49501) for the State of New Hampshire. The NPRM proposed 
approval of the CAA sections 111(d)/129 revised state plan for existing 
large

[[Page 77523]]

and small MWCs submitted by NHDES on October 1, 2018.
    NHDES amended its state plan Env-A 3300, Municipal Waste 
Combustion, for existing large and small MWCs on August 11, 2018 to 
remove a ban on PWR combustion in response to a change in the state 
statute ``Devices Contributing to Air Pollution'' RSA 125-C:10. The 
change in the state statute allows combustion of no more than 10,000 
tons per year of PWR at any MWC from November 15 through April 15 from 
facilities that process C&D debris in a manner no less stringent than 
the requirements at 40 CFR 241.4(a)(5), Non-Waste Determinations for 
Specific Non-Hazardous Secondary Materials When Used as a Fuel. The 
change also required NHDES to adopt rules regarding fuel quality 
standards and test methods in accordance with RSA 125-C:6, XIV-a, 
before any such combustion shall occur; therefore NHDES revised its 
associated state plan.
    Accordingly, the state plan revision incorporates fuel quality 
standards and test methods for MWCs that combust PWR. It includes 
changes to Env-A 3300, defining PWR as C&D wood processed from C&D 
debris according to best management practices as described in 40 CFR 
241.4(a)(5). The revision includes a new part Env-A 3308 ``Additional 
Requirements for Combusting PWR'' applicable to large MWCs with 
sections outlining applicability, operating practices, PWR fuel 
quality, fuel supplier requirements, independent third-party 
inspections, analysis of composite samples, reporting and recordkeeping 
for large MWCs combusting PWR, and cessation and resumption of receipt 
of PWR from a supplier.
    Subsequently, NHDES submitted the revised state plan to EPA on 
October 1, 2018. EPA evaluated the state plan for consistency with the 
CAA, EPA guidelines, and policy. We determined that NHDES's state plan 
implements and enforces provisions at least as protective as the 
Federal emission guidelines applicable to existing large and small 
MWCs. NHDES demonstrates legal authority to adopt emission standards 
and compliance schedules applicable to the designated facilities; 
enforce applicable laws, regulations, standards, and compliance 
schedules; seek injunctive relief; obtain information necessary to 
determine compliance; require record keeping; conduct inspections and 
tests; require the use of monitors; require emission reports of owners 
and operators; and make emission data publicly available. Other 
specific requirements for the revised state plan and the rationale for 
EPA's proposed action are explained in the NPRM and will not be 
restated here.

II. Response to Comments

    EPA received three comments in response to the NPRM during the 
public comment period, all of which were adverse in nature to EPA's 
proposed approval of the action.
    The first comment received suggested that EPA consider a different 
route of waste disposal to minimize negative impacts to the environment 
and human health. This comment is outside the scope of EPA's proposed 
action in that EPA is approving New Hampshire's state plan which meets 
EPA's promulgated guidelines for MWCs. In addition, the comment did not 
explain, or provide a legal basis for, how the proposed action should 
differ in any way within the context of EPA's guidelines; nor did the 
comment specifically mention the proposed action. Finally, the 
commenter did state that New Hampshire's rule would have a positive 
impact on the environment and public health. CAA section 129 and its 
implementing regulations impose requirements on sources that combust 
solid waste. If a state submits a revised state plan to EPA for solid 
waste combustion facilities that contains all applicable requirements, 
EPA does not have the authority to deny the revised state plan in favor 
of another means or method for solid waste disposal. As such, this 
comment has not resulted in a change to our original proposal and EPA 
is finalizing the action as proposed.
    Two comments stated that there will be adverse health impacts to 
surrounding communities as a direct result from combusting PWR 
(referred to as C&D or C&D waste) at Wheelabrator Concord Company L.P. 
(Wheelabrator), currently the only facility subject to the New 
Hampshire state plan. Both commenters directly cited the NPRM's 
Background Section III entitled, ``Why does EPA regulate air emissions 
from MWCs?,'' which states that municipal solid waste (MSW) combustion 
emits various air pollutants such as particulate matter, hydrogen 
chloride, dioxins/furans, heavy metals (lead, cadmium, and mercury), 
sulfur dioxide, and nitrogen oxides. One of these comments cited public 
health resources and records of public concern, including testimony and 
background on: (1) New Hampshire House Bill 358; \1\ (2) petitioners' 
``Response to EPA Order, Wheelabrator Concord Company, Permit No. TV-
0032;'' (3) the Seventh Biennial Report from the International Joint 
Commission on the Great Lakes Water Quality Agreement of 1978; (4) 
EPA's Summary of Executive Order 13045--``Protection of Children From 
Environmental Health Risks and Safety Risks;'' (5) a presentation by 
the New Hampshire Division of Public Health Services entitled 
``Childhood Lead Poisoning in NH--The Economic Burden;'' and (6) the 
State of New Hampshire Air Quality 2017 Executive Edition report. The 
comment emphasized the toxicity of lead exposure, its impact on 
children, and the resulting economic burden.
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    \1\ Relative to combustion of wood residue at municipal waste 
combustors. NH HB 358, 2019 Regular Session. (N.H. 2019). https://legiscan.com/NH/bill/HB358/2019.
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    However, neither of these comments mention EPA's 2016 final 
rulemaking, entitled ``Additions to List of Categorical Non-Waste 
Fuels,'' which requires processed C&D wood to remove contaminants in 
accordance with best management practices at 40 CFR 241.4(a)(5). 
Sorting by trained operators excludes or removes the following 
materials from the final product fuel: non-wood materials (e.g., 
polyvinyl chloride and other plastics, drywall, concrete, aggregates, 
dirt, and asbestos), and wood treated with creosote, pentachlorophenol, 
chromated copper arsenate, or other copper, chromium, or arsenical 
preservatives. In addition, C&D processing facilities that use positive 
sorting (where operators pick out desirable wood from co-mingled 
debris) or that receive and process positive sorted C&D wood, must 
either exclude all painted wood (to the extent that only de minimis 
quantities inherent to processing limitations may remain) from the 
final product fuel, use X-ray Fluorescence to ensure that painted wood 
included in the final product fuel does not contain lead-based paint, 
or require documentation that a building has been tested for and does 
not include lead-based paint before accepting demolition debris from 
that building. C&D processing facilities that use negative sorting 
(where operators remove contaminated or otherwise undesirable materials 
from co-mingled debris) must remove fines (i.e., small-sized particles 
that may contain relatively high concentrations of lead and other 
contaminants) and either remove all painted wood (to the extent that 
only de minimis quantities inherent to processing limitations may 
remain), use X-ray Fluorescence to detect and remove lead-painted wood, 
or require documentation that a building has been tested for and does 
not include lead-based paint before accepting demolition debris from 
that building. See 81 FR 6694.

[[Page 77524]]

    When processed in these manners and complying with all the 
requirements of the categorical non-waste determination, C&D wood is no 
longer considered a solid waste. In the case of New Hampshire, PWR, 
which equates to C&D wood processed in accordance with the best 
management practices at 40 CFR 241.4(a)(5), is still required to be 
combusted within MWCs and its combustion emissions are regulated via 
the state plan.
    EPA's 2016 final rulemaking action for ``Additions to List of 
Categorical Non-Waste Fuels'' explains that preceding its proposed 
rulemaking, EPA analyzed more than 220 samples of processed C&D wood 
from nine combustion facilities. The Agency compared the contaminant 
levels found in the processed C&D wood to the contaminant levels found 
in clean wood and biomass materials. Contaminants most likely to be 
present in C&D debris (arsenic, chromium, lead, mercury, chlorine, 
fluorine, sulfur, formaldehyde, and pentachlorophenol) were all 
comparable or lower in the C&D wood than in clean wood and biomass 
materials, with the exceptions of lead, pentachlorophenol, and 
formaldehyde. See 81 FR 6697-6698, Table 1. As a result, EPA 
promulgated additional controls to adequately reduce lead and 
pentachlorophenol at 40 CFR 241.4(a)(5) (e.g., positive and negative 
sorting requirements to exclude painted woods from the combustible 
stream of material).\2\
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    \2\ For the pollutant formaldehyde, EPA concluded that proposed 
rules published in 2013, Formaldehyde; Third-Party Certification 
Framework for the Formaldehyde Standards for Composite Wood Products 
(78 FR 34796) and Formaldehyde Emissions Standards for Composite 
Wood Products (78 FR 34820), would limit levels of formaldehyde in 
wood products and thus reduce the levels of formaldehyde in 
processed C&D wood. These rules were finalized by EPA on December 
12, 2016, at 40 CFR 770 to implement the Formaldehyde Standards for 
Composite Wood Products Act, which added Title VI to the Toxic 
Substances Control Act (TSCA).
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    Additionally, the commenters misunderstood EPA's own language in 
the NPRM for this rulemaking. Section III, entitled ``Why does EPA 
regulate air emissions from MWCs?'', refers to why EPA regulates air 
emissions from MWCs. Unregulated combustion of MSW emits various air 
pollutants that are detrimental to human health and the environment. 
Therefore, EPA regulates these emissions under CAA sections 111(d) and 
129 to protect human health and the environment. C&D wood itself is 
identified as not being a solid waste when used as fuel in a combustion 
unit and processed in the required manner at 40 CFR part 241.4, Non-
Waste Determinations for Specific Non-Hazardous Secondary Materials 
When Used as a Fuel. A non-waste, non-hazardous secondary material 
cannot be identified as MSW, and the emitted pollutants from combustion 
of these materials are also not identical to and should not be 
characterized as such.
    Regarding the regulatory process, a commenter stated that New 
Hampshire citizens ``face barriers to public participation and access 
to resolution on issues that are provided for the public'' at the state 
level. NHDES provided adequate opportunities for public participation 
throughout the state rulemaking process to amend New Hampshire Code of 
Administrative Rules Env-A 3300 Municipal Waste Combustion. The 
rulemaking process initiated in 2016 was introduced by the NHDES Air 
Resources Division and the Solid Waste Division at multiple stakeholder 
meetings open to the public with opportunities for comment. The 
proposed rule was presented to the NHDES Air Resources Council on 
September 11, 2017, and the final rule was posted for notice on May 14, 
2018, with a public hearing on June 15, 2018, and a comment period 
ending on June 29, 2018.
    There also were comments regarding the administration of the NHDES 
Air Resources Division, specifically concerning Title V operating 
permit shields, reporting of emissions, nitrogen oxides 
(NOX) emissions compliance, and a general lack of 
monitoring. EPA finds these comments to be outside the scope of this 
rulemaking and thus no response to those comments is necessary.
    Moreover, suggestions from both commenters to reject the state plan 
and continue the ban on PWR combustion are outside the scope of EPA 
Region 1's jurisdiction and this particular rulemaking. NHDES has the 
authority to incorporate standards in its state plan that are at least 
as protective as Federal emission guidelines. The state plan revision 
does not contradict or contravene 40 CFR part 60, subpart Cb, Emission 
Guidelines and Compliance Times for Large Municipal Waste Combustors 
That are Constructed on or Before September 20, 1994, or 40 CFR part 
241, subpart B, Identification of Non-Hazardous Secondary Materials 
that are Solid Wastes when Used as Fuels or Ingredients in Combustion 
Units.
    Finally, a comment stated that our proposed approval of New 
Hampshire's regulation is inconsistent with the requirements of 
Executive Order 13045, Protection of Children from Environmental Health 
Risks and Safety Risks. EPA disagrees with the commenter. This 
executive order was issued by President William J. Clinton in 1997. The 
order applies to economically significant rules under Executive Order 
12866 that concern an environmental health or safety risk that EPA has 
reason to believe may disproportionately affect children. Environmental 
health risks or safety risks refer to risks to health or to safety that 
are attributable to products or substances that the child is likely to 
come in contact with or ingest (such as the air we breathe, the food we 
eat, the water we drink or use for recreation, the soil we live on, and 
the products we use or are exposed to). When promulgating a rule of 
this description, EPA must evaluate the effects of the planned 
regulation on children and explain why the regulation is preferable to 
potentially effective and reasonably feasible alternative. Executive 
Order 12866 defines ``significant regulatory action'' as one which 
generally is any regulatory action that is likely to result in a rule 
that may:
     Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
     Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
     Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
     Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive order.
    EPA has determined that the criteria above have not been met for 
this rulemaking.

III. Final Action

    EPA is approving NHDES's CAA sections 111(d)/129 revised state plan 
for existing large and small MWCs.

IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the State of 
New Hampshire amended Code of Administrative Rules Env-A 3300, 
Municipal Waste Combustion, with a state effective date of September 
27, 2018. The amended Env-A 3300 applies to Large and Small Municipal 
Waste

[[Page 77525]]

Combustors to comply with section 111(d) and section 129 of the Clean 
Air Act. EPA has made, and will continue to make, these documents 
generally available through https://www.regulations.gov and at EPA 
Region 1 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information). This incorporation by reference is approved by the 
Director of the Federal Register upon the effective date of this final 
rule, and the plan is federally enforceable under the CAA as of the 
effective date of this final rulemaking.

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 Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing state plan 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 (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, the state plan 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 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. EPA will submit a report containing this action 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 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 February 17, 2023. 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 42 U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Administrative 
practice and procedure, Incorporation by reference, Industrial 
facilities, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur oxides, Waste treatment and disposal.

    Dated: December 6, 2022.
David Cash,
Regional Administrator, EPA Region 1.

    Part 62 of chapter I, title 40 of the Code of Federal Regulations 
is amended 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 EE--New Hampshire

0
2. Section Sec.  62.7325 is amended by adding paragraphs (b)(4)(iii) 
and (d) to read as follows:


 Sec.  62.7325  Identification of plan.

* * * * *
    (b) * * *
    (4) * * *
    (iii) Revised State Plan for Large and Small Municipal Waste 
Combustors was submitted on October 1, 2018. Revisions included 
amendments to New Hampshire Code of Administrative Rules Env-A 3300 
Municipal Waste Combustion in response to a change in the state statute 
relative to ``Devices Contributing to Air Pollution'' enacted by the 
New Hampshire General Court in 2016 and codified at New Hampshire 
Revised Statutes Annotated 125-C:10-c, that incorporates fuel quality 
standards and test methods for Large MWCs that combust processed wood 
residue from construction and demolition debris. The plan includes 
revisions to the regulatory provisions cited in paragraph (d) of this 
section, which EPA incorporates by reference.
* * * * *
    (d) Incorporation by reference. (1) The material incorporated by 
reference in this section was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
obtain copies at the EPA Region 1 Regional Office, Air and Radiation 
Division, 5 Post Office Square-Suite 100, Boston, MA, 617-918-1111 and 
from the source listed in paragraph (d)(2) of this section. You may 
also inspect the materials at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected], or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html.
    (2) State of New Hampshire, New Hampshire Department of 
Environmental Services, 29 Hazen Drive, Concord, NH 03302, 603-271-

[[Page 77526]]

3503, https://www.des.nh.gov/rules-and-regulatory/administrative-rules.
    (i) New Hampshire Code of Administrative Rules Env-A 3300, 
``Municipal Waste Combustion,'' effective September 27, 2018.
    (ii) [Reserved]

[FR Doc. 2022-27134 Filed 12-16-22; 8:45 am]
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