80_FR_51333 80 FR 51170 - Approval and Promulgation of State Plans for Designated Facilities; New York

80 FR 51170 - Approval and Promulgation of State Plans for Designated Facilities; New York

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 163 (August 24, 2015)

Page Range51170-51172
FR Document2015-20904

The Environmental Protection Agency (EPA) is proposing to withdraw its approval of a provision of the New York State plan that implements and enforces the Emission Guidelines for existing sewage sludge incineration units. This action would withdraw the EPA's approval of a provision of the State sewage sludge incineration plan allowing for affirmative defenses of Clean Air Act violations in the case of malfunctions. No other provision in the State plan would be affected by this action.

Federal Register, Volume 80 Issue 163 (Monday, August 24, 2015)
[Federal Register Volume 80, Number 163 (Monday, August 24, 2015)]
[Proposed Rules]
[Pages 51170-51172]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20904]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2015-0509, FRL-9933-01-Region 2]


Approval and Promulgation of State Plans for Designated 
Facilities; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
withdraw its approval of a provision of the New York State plan that 
implements and enforces the Emission Guidelines for existing sewage 
sludge incineration units. This action would withdraw the EPA's 
approval of a provision of the State sewage sludge incineration plan 
allowing for affirmative defenses of Clean Air Act violations in the 
case of malfunctions. No other provision in the State plan would be 
affected by this action.

DATES: Comments must be received on or before September 23, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2015-0509 by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: Ruvo.Richard@epa.gov
     Mail: EPA-R02-OAR-2015-0509, Richard Ruvo, Chief, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 
a.m. to 4:00 p.m. excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2015-0509. The EPA's policy is that all comments received will be 
included in the public docket without change, and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption, and be free of any 
defects or viruses. For additional information about the EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. 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, will be publicly available only in hard copy 
form. Publicly available docket materials are available at 
www.regulations.gov or at the Environmental Protection Agency, Region 2 
Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New 
York 10007-1866. The EPA requests, if at all possible, that you

[[Page 51171]]

contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the docket. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
(Gardella.anthony@epa.gov), Environmental Protection Agency, Region 2 
Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New 
York 10007-1866, (212) 637-3892.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the SUPPLEMENTARY INFORMATION section:

I. What action is the EPA proposing today?
II. Which provision of the State sewage sludge incineration (SSI) 
plan is EPA withdrawing approval of?
III. Why is the EPA taking this action?
IV. Who is affected by the State SSI plan and the amendment to the 
State SSI plan?
V. What is the background for New York State's request to amend the 
State SSI plan?
VI. What approval criteria did we use to evaluate New York State's 
January 2015 request to amend the State SSI plan?
VII. What is the EPA's conclusion?
VIII. Statutory and Executive Order Reviews

I. What action is the EPA proposing today?

    The EPA is proposing to withdraw its prior approval of an 
affirmative defense provision in New York State's SSI plan, based on a 
request submitted on January 27, 2015, by New York State. New York 
State submitted the State SSI plan for EPA approval on July 1, 2013 to 
fulfill the requirements of section 111(d) and 129 of the Clean Air Act 
(CAA). The EPA approved the proposed State SSI plan on June 11, 2014 
(79 FR 33456). The State SSI plan adopts and implements the emission 
guidelines (EG) set forth at Title 40 part 60 subpart MMMM of the Code 
of Federal Regulations (CFR) and is applicable to existing SSI units 
and establishes air emission limits and other requirements. Existing 
SSI units are units constructed on or before October 14, 2010.

II. Which provision of the State SSI plan is EPA withdrawing approval 
of?

    New York State is requesting that the EPA withdraw its approval of 
a provision in the State SSI plan that allows for an affirmative 
defense by an owner/operator of an SSI unit for violations of air 
emissions or other requirements of the State's plan in the event of 
malfunction(s) of an SSI unit. The EPA's proposed withdrawal of its 
prior approval, once finalized and effective, will result in the 
removal of the affirmative defense provisions from the federally-
enforceable State SSI plan while maintaining the federal enforceability 
of the remainder of the State SSI plan for covered SSI units located in 
New York State.

III. Why is the EPA taking this action?

    The EPA has determined that New York State's request that EPA 
withdraw approval of the affirmative defense provision in the State SSI 
plan meets all applicable requirements and therefore the EPA is 
proposing to withdraw its approval of that provision.

IV. Who is affected by the State SSI plan and the amendment to the 
State SSI plan?

    The State SSI plan regulates all the units designated by the EG for 
existing SSI units and which are located at a wastewater treatment 
facility designed to treat domestic sewage sludge. If the owner or 
operator of a covered SSI unit made changes after September 21, 2011, 
that meet the definition of modification (see 40 CFR 60.5250), the SSI 
unit would become subject to 40 CFR part 60 subpart LLLL (New Source 
Performance Standards for New Sewage Sludge Incineration Units), and 
the State SSI plan would no longer apply to that unit.

V. What is the background for New York State's request to amend the 
State SSI plan?

    In an April 18, 2014 opinion, the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit Court) vacated an 
affirmative defense in one of the EPA's Section 112 regulations. NRDC 
v. EPA, 749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense 
provisions in Section 112 rule establishing emission standards for 
Portland cement kilns). The court found that the EPA lacked authority 
to establish an affirmative defense for private civil suits and held 
that under the CAA, the authority to determine civil penalty amounts in 
such cases lies exclusively with the courts, not the EPA. The vacated 
affirmative defense provision in the EPA's Portland cement MACT rule is 
identical to the affirmative defense provision in the EPA's SSI EG, 
promulgated on March 21, 2011, under sections 111(d) and 129 of the 
CAA, at Sec.  60.5181 (``How do I establish an affirmative defense for 
exceedance of an emission limit or standard during a malfunction?''). 
New York's State SSI plan adopted by reference all the applicable 
requirements of the EPA's SSI EG, including the affirmative defense 
provisions at Sec.  60.5181, into its State plan at Part 200 of Title 6 
of the New York Code of Rules and Regulations (6NYCRR) of the State of 
New York, entitled ``General Provisions.''
    Because of the April 2014 D.C. Court vacatur referred to above, New 
York State submitted its January 27, 2015 letter requesting that EPA 
withdraw its approval of the affirmative defense provision as part of 
the State SSI plan submitted to the EPA for approval on July 1, 
2013.\1\ Consequently, the EPA is proposing to withdraw its prior 
approval of that particular provision of the State SSI plan as 
discussed herein.
---------------------------------------------------------------------------

    \1\ EPA has proposed a Federal SSI plan which would apply to SSI 
units that are not covered by an approved and effective state plan. 
The proposed federal plan does not include an affirmative defense to 
violations that result from malfunctions. 80 FR 23402, 23407 (Apr. 
27, 2015).
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VI. What approval criteria did we use to evaluate New York State's 
January 2015 request to amend the State SSI plan?

    The EPA reviewed New York State's request against the applicable 
requirements of section 129(b)(2) of the CAA. To ensure consistency, 
the EPA reviewed New York State's request against the proposed Federal 
SSI plan, discussed in footnote 1 of this notice, which does not 
include an affirmative defense to violations that result from 
malfunctions.

VII. What is the EPA's conclusion?

    The EPA has determined that New York State's SSI plan will continue 
to meet all the applicable approval criteria if EPA withdraws its 
approval of the affirmative defense provision. First, the removal of 
the affirmative defense provision is consistent with the D.C. Circuit's 
decision in NRDC v. EPA, as described above. Second, a state plan must 
be at least as protective as the emissions guidelines promulgated by 
the EPA, and the removal of the affirmative defense provision from the 
approved state plan does not render the plan less protective, as it 
removes a potential defense to a violation resulting from a 
malfunction. Therefore, the EPA is proposing to withdraw its approval 
of that provision of the plan, which the EPA approved on June 11, 2014 
(79 FR 33456) as part of New York's sections 111(d) and 129 State SSI 
plan for existing sewage sludge incineration units.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/
129 plan submission that complies with the provisions of the Act and 
applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 
111(d)/129 plan

[[Page 51172]]

submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the CAA. 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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).
    The 111(d)/129 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 
Nation Land, 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, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: August 13, 2015.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2015-20904 Filed 8-21-15; 8:45 am]
 BILLING CODE 6560-50-P



                                                 51170                  Federal Register / Vol. 80, No. 163 / Monday, August 24, 2015 / Proposed Rules

                                                 VI. Statutory and Executive Order                       2000), nor will it impose substantial                 Region 2 Office, 290 Broadway, 25th
                                                 Reviews                                                 direct costs on tribal governments or                 Floor, New York, New York 10007–
                                                    Under the CAA, the Administrator is                  preempt tribal law.                                   1866. Such deliveries are only accepted
                                                 required to approve a SIP submission                                                                          during the Regional Office’s normal
                                                                                                         List of Subjects in 40 CFR Part 52
                                                 that complies with the provisions of the                                                                      hours of operation. The Regional
                                                                                                           Environmental protection, Air                       Office’s official hours of business are
                                                 Act and applicable Federal regulations.
                                                                                                         pollution control, Incorporation by                   Monday through Friday, 8:30 a.m. to
                                                 See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
                                                                                                         reference, Intergovernmental relations,               4:00 p.m. excluding federal holidays.
                                                 Thus, in reviewing SIP submissions,
                                                                                                         Nitrogen dioxide, Ozone, Particulate                     Instructions: Direct your comments to
                                                 EPA’s role is to approve state choices,
                                                                                                         matter, Reporting and recordkeeping                   Docket ID No. EPA–R02–OAR–2015–
                                                 provided that they meet the criteria of                                                                       0509. The EPA’s policy is that all
                                                                                                         requirements, Volatile organic
                                                 the CAA. Accordingly, this action                                                                             comments received will be included in
                                                                                                         compounds.
                                                 merely proposes to approve state law as                                                                       the public docket without change, and
                                                 meeting Federal requirements and does                     Authority: 42 U.S.C. 7401 et seq.
                                                                                                                                                               may be made available online at
                                                 not impose additional requirements                        Dated: August 12, 2015.                             www.regulations.gov, including any
                                                 beyond those imposed by state law. For                  Heather McTeer Toney,                                 personal information provided, unless
                                                 that reason, this action:                               Regional Administrator, Region 4.                     the comment includes information
                                                    • Is not a significant regulatory action             [FR Doc. 2015–20747 Filed 8–21–15; 8:45 am]           claimed to be Confidential Business
                                                 subject to review by the Office of                                                                            Information (CBI) or other information
                                                                                                         BILLING CODE 6560–50–P
                                                 Management and Budget under                                                                                   whose disclosure is restricted by statute.
                                                 Executive Orders 12866 (58 FR 51735,                                                                          Do not submit information that you
                                                 October 4, 1993) and 13563 (76 FR 3821,                 ENVIRONMENTAL PROTECTION                              consider to be CBI or otherwise
                                                 January 21, 2011);                                      AGENCY                                                protected through www.regulations.gov
                                                    • does not impose an information                                                                           or email. The www.regulations.gov Web
                                                 collection burden under the provisions                  40 CFR Part 62                                        site is an ‘‘anonymous access’’ system,
                                                 of the Paperwork Reduction Act (44                                                                            which means the EPA will not know
                                                                                                         [EPA–R02–OAR–2015–0509, FRL–9933–01–
                                                 U.S.C. 3501 et seq.);                                                                                         your identity or contact information
                                                                                                         Region 2]
                                                    • is certified as not having a                                                                             unless you provide it in the body of
                                                 significant economic impact on a                        Approval and Promulgation of State                    your comment. If you send an email
                                                 substantial number of small entities                    Plans for Designated Facilities; New                  comment directly to the EPA without
                                                 under the Regulatory Flexibility Act (5                 York                                                  going through www.regulations.gov your
                                                 U.S.C. 601 et seq.);                                                                                          email address will be automatically
                                                    • does not contain any unfunded                      AGENCY:  Environmental Protection
                                                                                                                                                               captured and included as part of the
                                                 mandate or significantly or uniquely                    Agency (EPA).                                         comment that is placed in the public
                                                 affect small governments, as described                  ACTION: Proposed rule.                                docket and made available on the
                                                 in the Unfunded Mandates Reform Act                                                                           Internet. If you submit an electronic
                                                 of 1995 (Pub. L. 104–4);                                SUMMARY:   The Environmental Protection
                                                                                                         Agency (EPA) is proposing to withdraw                 comment, the EPA recommends that
                                                    • does not have Federalism                                                                                 you include your name and other
                                                 implications as specified in Executive                  its approval of a provision of the New
                                                                                                         York State plan that implements and                   contact information in the body of your
                                                 Order 13132 (64 FR 43255, August 10,                                                                          comment and with any disk or CD–ROM
                                                 1999);                                                  enforces the Emission Guidelines for
                                                                                                         existing sewage sludge incineration                   you submit. If the EPA cannot read your
                                                    • is not an economically significant                                                                       comment due to technical difficulties
                                                 regulatory action based on health or                    units. This action would withdraw the
                                                                                                                                                               and cannot contact you for clarification,
                                                 safety risks subject to Executive Order                 EPA’s approval of a provision of the
                                                                                                                                                               the EPA may not be able to consider
                                                 13045 (62 FR 19885, April 23, 1997);                    State sewage sludge incineration plan
                                                                                                                                                               your comment. Electronic files should
                                                    • is not a significant regulatory action             allowing for affirmative defenses of
                                                                                                                                                               avoid the use of special characters, any
                                                 subject to Executive Order 13211 (66 FR                 Clean Air Act violations in the case of
                                                                                                                                                               form of encryption, and be free of any
                                                 28355, May 22, 2001);                                   malfunctions. No other provision in the
                                                                                                                                                               defects or viruses. For additional
                                                    • is not subject to requirements of                  State plan would be affected by this
                                                                                                                                                               information about the EPA’s public
                                                 Section 12(d) of the National                           action.
                                                                                                                                                               docket visit the EPA Docket Center
                                                 Technology Transfer and Advancement                     DATES: Comments must be received on                   homepage at http://www.epa.gov/
                                                 Act of 1995 (15 U.S.C. 272 note) because                or before September 23, 2015.                         epahome/dockets.htm.
                                                 application of those requirements would                 ADDRESSES: Submit your comments,                         Docket: All documents in the
                                                 be inconsistent with the CAA; and                       identified by Docket ID Number EPA–                   electronic docket are listed in the
                                                    • does not provide EPA with the                      R02–OAR–2015–0509 by one of the                       www.regulations.gov index. Although
                                                 discretionary authority to address, as                  following methods:                                    listed in the index, some information is
                                                 appropriate, disproportionate human                        • www.regulations.gov. Follow the                  not publicly available, i.e., CBI or other
                                                 health or environmental effects, using                  on-line instructions for submitting                   information whose disclosure is
                                                 practicable and legally permissible                     comments.                                             restricted by statute. Certain other
                                                 methods, under Executive Order 12898                       • Email: Ruvo.Richard@epa.gov                      material, such as copyrighted material,
                                                 (59 FR 7629, February 16, 1994).                           • Mail: EPA–R02–OAR–2015–0509,                     will be publicly available only in hard
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                                                    The SIP is not approved to apply on                  Richard Ruvo, Chief, Air Programs                     copy form. Publicly available docket
                                                 any Indian reservation land or in any                   Branch, Environmental Protection                      materials are available at
                                                 other area where EPA or an Indian tribe                 Agency, Region 2 Office, 290 Broadway,                www.regulations.gov or at the
                                                 has demonstrated that a tribe has                       25th Floor, New York, New York                        Environmental Protection Agency,
                                                 jurisdiction. In those areas of Indian                  10007–1866.                                           Region 2 Office, Air Programs Branch,
                                                 country, the rule does not have tribal                     • Hand Delivery: Richard Ruvo,                     290 Broadway, 25th Floor, New York,
                                                 implications as specified by Executive                  Chief, Air Programs Branch,                           New York 10007–1866. The EPA
                                                 Order 13175 (65 FR 67249, November 9,                   Environmental Protection Agency,                      requests, if at all possible, that you


                                            VerDate Sep<11>2014   12:29 Aug 21, 2015   Jkt 235001   PO 00000   Frm 00025   Fmt 4702   Sfmt 4702   E:\FR\FM\24AUP1.SGM   24AUP1


                                                                        Federal Register / Vol. 80, No. 163 / Monday, August 24, 2015 / Proposed Rules                                                   51171

                                                 contact the individual listed in the FOR                the federally-enforceable State SSI plan              (6NYCRR) of the State of New York,
                                                 FURTHER INFORMATION CONTACT section to                  while maintaining the federal                         entitled ‘‘General Provisions.’’
                                                 view the docket. The Regional Office’s                  enforceability of the remainder of the                   Because of the April 2014 D.C. Court
                                                 official hours of business are Monday                   State SSI plan for covered SSI units                  vacatur referred to above, New York
                                                 through Friday, 8:30 a.m. to 4:00 p.m.,                 located in New York State.                            State submitted its January 27, 2015
                                                 excluding federal holidays.                                                                                   letter requesting that EPA withdraw its
                                                                                                         III. Why is the EPA taking this action?               approval of the affirmative defense
                                                 FOR FURTHER INFORMATION CONTACT:
                                                 Anthony (Ted) Gardella                                     The EPA has determined that New                    provision as part of the State SSI plan
                                                 (Gardella.anthony@epa.gov),                             York State’s request that EPA withdraw                submitted to the EPA for approval on
                                                 Environmental Protection Agency,                        approval of the affirmative defense                   July 1, 2013.1 Consequently, the EPA is
                                                 Region 2 Office, Air Programs Branch,                   provision in the State SSI plan meets all             proposing to withdraw its prior
                                                 290 Broadway, 25th Floor, New York,                     applicable requirements and therefore                 approval of that particular provision of
                                                 New York 10007–1866, (212) 637–3892.                    the EPA is proposing to withdraw its                  the State SSI plan as discussed herein.
                                                 SUPPLEMENTARY INFORMATION: The
                                                                                                         approval of that provision.
                                                                                                                                                               VI. What approval criteria did we use
                                                 following table of contents describes the               IV. Who is affected by the State SSI                  to evaluate New York State’s January
                                                 format for the SUPPLEMENTARY                            plan and the amendment to the State                   2015 request to amend the State SSI
                                                 INFORMATION section:                                    SSI plan?                                             plan?
                                                 I. What action is the EPA proposing today?                The State SSI plan regulates all the                  The EPA reviewed New York State’s
                                                 II. Which provision of the State sewage                 units designated by the EG for existing               request against the applicable
                                                      sludge incineration (SSI) plan is EPA              SSI units and which are located at a
                                                      withdrawing approval of?                                                                                 requirements of section 129(b)(2) of the
                                                                                                         wastewater treatment facility designed                CAA. To ensure consistency, the EPA
                                                 III. Why is the EPA taking this action?
                                                 IV. Who is affected by the State SSI plan and           to treat domestic sewage sludge. If the               reviewed New York State’s request
                                                      the amendment to the State SSI plan?               owner or operator of a covered SSI unit               against the proposed Federal SSI plan,
                                                 V. What is the background for New York                  made changes after September 21, 2011,                discussed in footnote 1 of this notice,
                                                      State’s request to amend the State SSI             that meet the definition of modification              which does not include an affirmative
                                                      plan?                                              (see 40 CFR 60.5250), the SSI unit                    defense to violations that result from
                                                 VI. What approval criteria did we use to                would become subject to 40 CFR part 60
                                                      evaluate New York State’s January 2015
                                                                                                                                                               malfunctions.
                                                                                                         subpart LLLL (New Source Performance
                                                      request to amend the State SSI plan?                                                                     VII. What is the EPA’s conclusion?
                                                 VII. What is the EPA’s conclusion?
                                                                                                         Standards for New Sewage Sludge
                                                 VIII. Statutory and Executive Order Reviews             Incineration Units), and the State SSI                   The EPA has determined that New
                                                                                                         plan would no longer apply to that unit.              York State’s SSI plan will continue to
                                                 I. What action is the EPA proposing                                                                           meet all the applicable approval criteria
                                                 today?                                                  V. What is the background for New
                                                                                                         York State’s request to amend the State               if EPA withdraws its approval of the
                                                    The EPA is proposing to withdraw its                 SSI plan?                                             affirmative defense provision. First, the
                                                 prior approval of an affirmative defense                                                                      removal of the affirmative defense
                                                 provision in New York State’s SSI plan,                   In an April 18, 2014 opinion, the U.S.              provision is consistent with the D.C.
                                                 based on a request submitted on January                 Court of Appeals for the District of                  Circuit’s decision in NRDC v. EPA, as
                                                 27, 2015, by New York State. New York                   Columbia Circuit (D.C. Circuit Court)                 described above. Second, a state plan
                                                 State submitted the State SSI plan for                  vacated an affirmative defense in one of              must be at least as protective as the
                                                 EPA approval on July 1, 2013 to fulfill                 the EPA’s Section 112 regulations.                    emissions guidelines promulgated by
                                                 the requirements of section 111(d) and                  NRDC v. EPA, 749 F.3d 1055 (D.C. Cir.,                the EPA, and the removal of the
                                                 129 of the Clean Air Act (CAA). The                     2014) (vacating affirmative defense                   affirmative defense provision from the
                                                 EPA approved the proposed State SSI                     provisions in Section 112 rule                        approved state plan does not render the
                                                 plan on June 11, 2014 (79 FR 33456).                    establishing emission standards for                   plan less protective, as it removes a
                                                 The State SSI plan adopts and                           Portland cement kilns). The court found               potential defense to a violation resulting
                                                 implements the emission guidelines                      that the EPA lacked authority to                      from a malfunction. Therefore, the EPA
                                                 (EG) set forth at Title 40 part 60 subpart              establish an affirmative defense for                  is proposing to withdraw its approval of
                                                 MMMM of the Code of Federal                             private civil suits and held that under               that provision of the plan, which the
                                                 Regulations (CFR) and is applicable to                  the CAA, the authority to determine                   EPA approved on June 11, 2014 (79 FR
                                                 existing SSI units and establishes air                  civil penalty amounts in such cases lies              33456) as part of New York’s sections
                                                 emission limits and other requirements.                 exclusively with the courts, not the                  111(d) and 129 State SSI plan for
                                                 Existing SSI units are units constructed                EPA. The vacated affirmative defense                  existing sewage sludge incineration
                                                 on or before October 14, 2010.                          provision in the EPA’s Portland cement                units.
                                                                                                         MACT rule is identical to the
                                                 II. Which provision of the State SSI                    affirmative defense provision in the                  VIII. Statutory and Executive Order
                                                 plan is EPA withdrawing approval of?                    EPA’s SSI EG, promulgated on March                    Reviews
                                                    New York State is requesting that the                21, 2011, under sections 111(d) and 129                 Under the CAA, the Administrator is
                                                 EPA withdraw its approval of a                          of the CAA, at § 60.5181 (‘‘How do I                  required to approve a 111(d)/129 plan
                                                 provision in the State SSI plan that                    establish an affirmative defense for                  submission that complies with the
                                                 allows for an affirmative defense by an                 exceedance of an emission limit or                    provisions of the Act and applicable
rmajette on DSK2VPTVN1PROD with PROPOSALS




                                                 owner/operator of an SSI unit for                       standard during a malfunction?’’). New                Federal regulations. 40 CFR 62.04. Thus,
                                                 violations of air emissions or other                    York’s State SSI plan adopted by                      in reviewing 111(d)/129 plan
                                                 requirements of the State’s plan in the                 reference all the applicable
                                                 event of malfunction(s) of an SSI unit.                 requirements of the EPA’s SSI EG,                       1 EPA has proposed a Federal SSI plan which

                                                 The EPA’s proposed withdrawal of its                    including the affirmative defense                     would apply to SSI units that are not covered by
                                                                                                                                                               an approved and effective state plan. The proposed
                                                 prior approval, once finalized and                      provisions at § 60.5181, into its State               federal plan does not include an affirmative defense
                                                 effective, will result in the removal of                plan at Part 200 of Title 6 of the New                to violations that result from malfunctions. 80 FR
                                                 the affirmative defense provisions from                 York Code of Rules and Regulations                    23402, 23407 (Apr. 27, 2015).



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                                                 51172                  Federal Register / Vol. 80, No. 163 / Monday, August 24, 2015 / Proposed Rules

                                                 submissions, EPA’s role is to approve                   relations, Paper and paper products                   Conservation and Restoration Division,
                                                 state choices, provided that they meet                  industry, Phosphate, Reporting and                    U.S. Environmental Protection Agency,
                                                 the criteria of the CAA. Accordingly,                   recordkeeping requirements, Sulfur                    Atlanta Federal Center, 61 Forsyth
                                                 this action merely approves state law as                oxides, Sulfur acid plants, Waste                     Street SW., Atlanta, Georgia 30303–
                                                 meeting Federal requirements and does                   treatment and disposal.                               8960. Such deliveries are only accepted
                                                 not impose additional requirements                        Dated: August 13, 2015.                             during the Regional Office’s normal
                                                 beyond those imposed by state law. For                  Judith A. Enck,                                       hours of operation, and special
                                                 that reason, this action:                                                                                     arrangements should be made for
                                                                                                         Regional Administrator, Region 2.
                                                    • Is not a ‘‘significant regulatory                                                                        deliveries of boxed information.
                                                 action’’ subject to review by the Office                [FR Doc. 2015–20904 Filed 8–21–15; 8:45 am]
                                                 of Management and Budget under                          BILLING CODE 6560–50–P                                   Please see the direct final rule in the
                                                 Executive Order 12866 (58 FR 51735,                                                                           ‘‘Rules and Regulations’’ section of
                                                 October 4, 1993);                                                                                             today’s Federal Register for detailed
                                                    • does not impose an information                     ENVIRONMENTAL PROTECTION                              instructions on how to submit
                                                 collection burden under the provisions                  AGENCY                                                comments.
                                                 of the Paperwork Reduction Act (44
                                                                                                         40 CFR Part 271                                       FOR FURTHER INFORMATION CONTACT:
                                                 U.S.C. 3501 et seq.);
                                                    • is certified as not having a                       [EPA–R04–RCRA–2015–0294; FRL–9932–                    Gwendolyn Gleaton, RCRA Programs
                                                 significant economic impact on a                        92–Region 4]                                          and Materials Management Section,
                                                 substantial number of small entities                                                                          Materials and Waste Management
                                                 under the Regulatory Flexibility Act (5                 North Carolina: Final Authorization of                Branch, Resource Conservation and
                                                 U.S.C. 601 et seq.);                                    State Hazardous Waste Management                      Restoration Division, U.S.
                                                    • does not contain any unfunded                      Program Revisions                                     Environmental Protection Agency,
                                                 mandate or significantly or uniquely                    AGENCY:  Environmental Protection                     Atlanta Federal Center, 61 Forsyth
                                                 affect small governments, as described                  Agency (EPA).                                         Street SW., Atlanta, Georgia 30303–
                                                 in the Unfunded Mandates Reform Act                                                                           8960; telephone number: (404) 562–
                                                                                                         ACTION: Proposed rule.
                                                 of 1995 (Pub. L. 104–4);                                                                                      8500; fax number: (404) 562–9964;
                                                    • does not have Federalism                           SUMMARY:   North Carolina has applied to              email address: gleaton.gwen@epa.gov
                                                 implications as specified in Executive                  the Environmental Protection Agency
                                                 Order 13132 (64 FR 43255, August 10,                                                                          SUPPLEMENTARY INFORMATION:      Along
                                                                                                         (EPA) for final authorization of changes              with this proposed rule, EPA is
                                                 1999);                                                  to its hazardous waste program under
                                                    • is not an economically significant                                                                       publishing a direct final rule in the
                                                                                                         the Resource Conservation and                         ‘‘Rules and Regulations’’ section of
                                                 regulatory action based on health or                    Recovery Act (RCRA). These changes
                                                 safety risks subject to Executive Order                                                                       today’s Federal Register pursuant to
                                                                                                         correspond to certain Federal rules
                                                 13045 (62 FR 19885, April 23, 1997);                                                                          which EPA is authorizing these changes.
                                                                                                         promulgated between July 1, 2008 and
                                                    • is not a significant regulatory action             June 30, 2014 (also known as RCRA
                                                                                                                                                               EPA did not issue a proposed rule
                                                 subject to Executive Order 13211 (66 FR                                                                       before today because EPA believes this
                                                                                                         Clusters XIX through XXIII). With this
                                                 28355, May 22, 2001);                                                                                         action is not controversial and does not
                                                                                                         proposed rule, EPA is proposing to grant
                                                    • is not subject to requirements of                                                                        expect comments that oppose it. EPA
                                                                                                         final authorization to North Carolina for
                                                 Section 12(d) of the National                                                                                 has explained the reasons for this
                                                                                                         these changes.
                                                 Technology Transfer and Advancement                                                                           authorization in the direct final rule.
                                                 Act of 1995 (15 U.S.C. 272 note) because                DATES: Send your written comments by
                                                                                                                                                               Unless EPA receives written comments
                                                 application of those requirements would                 September 23, 2015.
                                                                                                                                                               that oppose this authorization during
                                                 be inconsistent with the Clean Air Act;                 ADDRESSES: Submit your comments,                      the comment period, the direct final
                                                 and                                                     identified by Docket ID No. EPA–R04–                  rule in today’s Federal Register will
                                                    • does not provide EPA with the                      RCRA–2015–0294, by one of the                         become effective on the date it
                                                 discretionary authority to address, as                  following methods:                                    establishes, and EPA will not take
                                                 appropriate, disproportionate human                        • Federal eRulemaking Portal:                      further action on this proposal. If EPA
                                                 health or environmental effects, using                  www.regulations.gov. Follow the on-line               receives comments that oppose this
                                                 practicable and legally permissible                     instructions for submitting comments.
                                                                                                                                                               action, EPA will withdraw the direct
                                                 methods, under Executive Order 12898                       • Email: gleaton.gwen@epa.gov.
                                                                                                                                                               final rule and it will not take effect. EPA
                                                 (59 FR 7629, February 16, 1994).                           • Fax: (404) 562–9964 (prior to
                                                                                                                                                               will then respond to public comments
                                                    The 111(d)/129 plan is not approved                  faxing, please notify the EPA contact
                                                                                                         listed below).                                        in a later final rule based on this
                                                 to apply on any Indian reservation land
                                                                                                            • Mail: Send written comments to                   proposed rule. You may not have
                                                 or in any other area where EPA or an
                                                                                                         Gwendolyn Gleaton, RCRA Programs                      another opportunity to comment on
                                                 Indian tribe has demonstrated that a
                                                                                                         and Materials Management Section,                     these State program changes. If you
                                                 tribe has jurisdiction. In those areas of
                                                                                                         Materials and Waste Management                        want to comment on this action, you
                                                 Indian Nation Land, the rule does not
                                                                                                         Branch, Resource Conservation and                     must do so at this time. For additional
                                                 have tribal implications and will not
                                                 impose substantial direct costs on tribal               Restoration Division, U.S.                            information, please see the direct final
                                                 governments or preempt tribal law as                    Environmental Protection Agency,                      rule published in the ‘‘Rules and
rmajette on DSK2VPTVN1PROD with PROPOSALS




                                                 specified by Executive Order 13175 (65                  Atlanta Federal Center, 61 Forsyth                    Regulations’’ section of today’s Federal
                                                 FR 67249, November 9, 2000).                            Street SW., Atlanta, Georgia 30303–                   Register.
                                                                                                         8960.                                                   Dated: June 26, 2015.
                                                 List of Subjects in 40 CFR Part 62                         • Hand Delivery or Courier: Deliver
                                                                                                                                                               Heather McTeer Toney,
                                                   Environmental protection,                             your comments to Gwendolyn Gleaton,
                                                 Administrative practice and procedure,                  RCRA Programs and Materials                           Regional Administrator, Region 4.
                                                 Air pollution control, Aluminum,                        Management Section, Materials and                     [FR Doc. 2015–20908 Filed 8–21–15; 8:45 am]
                                                 Fertilizers, Fluoride, Intergovernmental                Waste Management Branch, Resource                     BILLING CODE 6560–50–P




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Document Created: 2015-12-15 10:55:03
Document Modified: 2015-12-15 10:55:03
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before September 23, 2015.
ContactAnthony (Ted) Gardella ([email protected]), Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3892.
FR Citation80 FR 51170 
CFR AssociatedEnvironmental Protection; Administrative Practice and Procedure; Air Pollution Control; Aluminum; Fertilizers; Fluoride; Intergovernmental Relations; Paper and Paper Products Industry; Phosphate; Reporting and Recordkeeping Requirements; Sulfur Oxides; Sulfur Acid Plants and Waste Treatment and Disposal

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