2017-20595. Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming; Negative Declarations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking final action to approve 20 negative declarations for four designated facility classes in all Region 8 states. First, the EPA is approving negative declarations from Colorado, Montana, North Dakota, South Dakota and Wyoming for existing small municipal waste combustor (MWC) units. Second, the EPA is approving negative declarations from Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming for existing large MWC units. Third, the EPA is approving negative declarations from Montana, South Dakota, Utah and Wyoming for existing commercial and industrial solid waste incineration (CISWI) units. Fourth, the EPA is approving negative declarations from Montana, North Dakota, South Dakota, Utah and Wyoming for existing other solid waste incineration (OSWI) units. Each of the negative declaration letters approved in this final rulemaking action is a certified statement from the issuing state that there are no existing designated facilities of the source category specified in the negative declaration, within the jurisdiction of that state, which would require the development of a Clean Air Act (CAA) section 111(d)/129 state plan. These approved negative declarations will serve in lieu of a state plan unless a previously unknown facility falling under these particular emissions guidelines is identified and development of a state plan becomes necessary.

DATES:

This rule is effective October 26, 2017.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2017-0171. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., 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 through Regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Gregory Lohrke, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6396, lohrke.gregory@epa.gov.

SUPPLEMENTARY INFORMATION:

There have been no changes to the regulatory language from the language presented in the previous direct final action published on June 5, 2017 (82 FR 25734), amended by a correction action published on August 2, 2017 (82 FR 35906).

I. Background Information

The EPA's statutory authority for regulating new and existing solid waste incineration units is outlined in CAA sections 111 and 129. Section 129 of the Act is specific to solid waste combustion and requires the EPA to establish performance standards for each category of solid waste incineration units, which include the categories addressed in this notice. Section 111(b) of the Act gives the EPA the statutory authority to promulgate new source performance standards (NSPS) for new incineration units. Section 111(d) requires states to submit plans to control designated pollutants at existing incineration facilities (designated facilities) whenever standards of performance have been established under section 111(b) and the EPA has established emission guidelines for existing designated facilities. Emission guidelines are implemented and enforced by state pollution control agencies through these EPA-approved section 111(d)/129 state plans or a promulgated federal plan adopted by the state. If a state does not have any existing solid waste incineration units for the relevant emission guidelines, the state shall submit a letter to the EPA certifying that no such units exist within the state (i.e., a negative declaration) in lieu of a state plan.

Emission guidelines for small MWC units were originally promulgated alongside guidelines for large MWC units in December 1995 (40 CFR part 60, subpart Cb). These guidelines were vacated by the U.S. Court of Appeals for the District of Columbia Circuit in March 1997 when the court held that the EPA should separately regulate small MWC units to remain consistent with the provisions of section 129 of the CAA. On December 6, 2000, the EPA issued a final rule (65 FR 76378) to reestablish emission guidelines and compliance times for existing small MWC units constructed on or before August 30, 1999, that have the capacity to combust 35 to 250 tons per day of municipal solid waste (40 CFR part 60, subpart BBBB). The federal plan for these units was promulgated on January 31, 2003 (68 FR 5144), at 40 CFR part 62, subpart JJJ.

In December 1995, the EPA adopted NSPS (40 CFR part 60, subpart Eb) and emission guidelines (40 CFR part 60, subpart Cb) for large MWC units. The EPA conducted a five-year review of the NSPS and emission guidelines for large MWC units as required by section 129(a)(5) of the CAA and proposed amendments on December 19, 2005 (70 FR 75348). On May 10, 2006, after consideration of comments received on this proposal, revisions and amendments to the emission guidelines and compliance times for large MWC units were promulgated at 40 CFR part 60, subpart Cb (71 FR 27323).

On February 7, 2013, revision of the emission guidelines and compliance times for CISWI units was adopted and promulgated (78 FR 9112) at 40 CFR part 60, subpart DDDD. Reconsideration of certain aspects of the final rule due to public comment resulted in minor amendments to the CISWI rule being made on June 23, 2016. On October 3, 2003, the EPA promulgated the federal plan for CISWI units that commenced construction on or before November 30, 1999 (68 FR 57539), at 40 CFR part 62, subpart III.

On December 16, 2005, emission guidelines and compliance times were promulgated for existing other solid waste incineration units that commenced construction on or before December 9, 2004 (70 FR 74907), at 40 CFR part 60, subpart FFFF. Reconsideration of certain aspects of the final rule resulted in minor amendments to the OSWI rule being made on January 22, 2007.

The EPA proposed approval and promulgation of several negative declarations from the EPA Region 8 states for the above emission guidelines by publishing in parallel proposed and direct final rulemaking actions on June 5, 2017 (82 FR 25753 and 82 FR 25734). A correction to the amended regulatory language was published on August 2, 2017 (82 FR 35906). During the public commentary period of the proposal, the EPA received one comment. In general, this comment claimed the proposed and direct final actions lacked sufficient proof that no environmental impact would result from the rulemaking action. The EPA disagrees with this claim, and a more complete summary of the comment and the EPA's response and justification for final rulemaking can be found in section “III. Response to Public Comments,” of this preamble. However, receipt of the comment necessitated a timely withdrawal of the direct final rulemaking action on August 4, 2017 (82 FR 36335), and the subsequent initiation of the present final rulemaking action to promulgate the approved negative declarations.

II. State Submittals

A. Existing Small Municipal Waste Combustion Units Negative Declarations From the States of Colorado, Montana, North Dakota, South Dakota and Wyoming

The Colorado Department of Public Health and Environment, the Montana Department of Environmental Quality, the North Dakota Department of Health, the South Dakota Department of Environment and Natural Resources and the Wyoming Department of Environmental Quality have submitted letters certifying that there are no existing small MWC units under state jurisdiction in their respective states subject to 40 CFR part 60, subpart BBBB. These negative declarations meet the requirements of 40 CFR 62.06, and the EPA outlines no formal review process for negative declaration letters under subpart BBBB—Emission Guidelines and Compliance Times for Small Municipal Waste Combustion Units Constructed On or Before August 30, 1999. The dates of submission for these letters are outlined in the table below.

State agency submitting the negative declaration	Date of letter to EPA Region 8 Office
Colorado Department of Public Health and Environment	January 8, 2001.
Montana Department of Environmental Quality	June 27, 2005.
North Dakota Department of Health	November 27, 2001.
South Dakota Department of Environment and Natural Resources	January 25, 2002.
Wyoming Department of Environmental Quality	October 9, 2001.

B. Existing Large Municipal Waste Combustion Units Continued Negative Declarations From the States of Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming

The Colorado Department of Public Health and Environment, the Montana Department of Environmental Quality, the North Dakota Department of Health, the South Dakota Department of Environment and Natural Resources, the Utah Department of Environmental Quality and the Wyoming Department of Environmental Quality have submitted letters continuing their certification that there are no existing large MWC units under state jurisdiction in their respective states subject to 40 CFR part 60, subpart Cb. These negative declarations meet the Start Printed Page 44740requirements of 40 CFR 62.06, and the EPA outlines no formal review process for negative declaration letters under 40 CFR part 60, subpart Cb—Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors That Are Constructed On or Before September 20, 1994. The dates of submission for these letters are outlined in the table below.

State agency submitting the negative declaration	Date of letter to EPA Region 8 Office
Colorado Department of Public Health and Environment	October 13, 2015.
Montana Department of Environmental Quality	March 18, 2015.
North Dakota Department of Health	February 26, 2015.
South Dakota Department of Environment and Natural Resources	April 3, 2017.
Utah Department of Environmental Quality	March 22, 2017.
Wyoming Department of Environmental Quality	April 23, 2015.

C. Existing Commercial and Industrial Solid Waste Incineration Units Continued Negative Declarations From the States of Montana, South Dakota, Utah and Wyoming

The Montana Department of Environmental Quality, the South Dakota Department of Environment and Natural Resources, the Utah Department of Environmental Quality and the Wyoming Department of Environmental Quality have submitted letters continuing their certification that there are no existing CISWI units under state jurisdiction in their respective states subject to 40 CFR part 60, subpart DDDD. These negative declarations meet the requirements of 40 CFR 62.06, and the EPA outlines no formal review process for negative declaration letters under 40 CFR part 60, subpart DDDD—Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units That Commenced Construction On or Before November 30, 1999. The dates of submission for these letters are outlined in the table below.

State agency submitting the negative declaration	Date of letter to EPA Region 8 Office
Montana Department of Environmental Quality	March 18, 2015.
South Dakota Department of Environment and Natural Resources	April 3, 2017.
Utah Department of Environmental Quality	March 22, 2017.
Wyoming Department of Environmental Quality	February 23, 2017.

D. Existing Other Solid Waste Incineration Units Negative Declarations From the States of Montana, North Dakota, South Dakota, Utah and Wyoming

The Montana Department of Environmental Quality, the North Dakota Department of Health, the South Dakota Department of Environment and Natural Resources, the Utah Department of Environmental Quality and the Wyoming Department of Environmental Quality have submitted letters certifying that there are no existing OSWI units under state jurisdiction in their respective states subject to 40 CFR part 60, subpart FFFF. These negative declarations meet the requirements of 40 CFR 62.06, and the EPA outlines no formal review process for negative declaration letters under 40 CFR part 60, subpart FFFF—Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units That Commenced Construction On or Before December 9, 2004. The dates of submission for these letters are outlined in the table below.

State agency submitting the negative declaration	Date of letter to EPA Region 8 Office
Montana Department of Environmental Quality	March 18, 2015.
North Dakota Department of Health	September 20, 2006.
South Dakota Department of Environment and Natural Resources	May 4, 2007.
Utah Department of Environmental Quality	December 20, 2006.
Wyoming Department of Environmental Quality	May 3, 2007.

III. Response to Public Comments

Today's rule will be finalized as proposed without revisions. The EPA received a total of one public comment on the proposed approval and promulgation of negative declarations from Region 8 states. After considering the comment, the EPA has determined that the comment is outside the scope of the purpose and effect of the proposed action. The following section is a summary of the public comment received, the response, and the rationale for the EPA's decision to proceed with the proposed action without revisions. The comment to which this section is addressed is located in the docket for this rulemaking action, which can be accessed by following the instructions outlined in the ADDRESSES section of this preamble.

A. Failure To Document `No Negative Effect'

Comment: The comment received, as it was written on the Regulations.gov Web site, is presented here for clarity:

“The documentation provided is rather limited. While there is a declaration of no negative effect, proof of that would be needed rather than to issue a statement saying there is no negative effect. There needs to be an analysis of the public that helps determine that for sure and not violate the NEPA provisions that would require public involvement.”

Response: This comment raises issues outside the scope of the EPA's approval of negative declarations concerning designated facilities covered under CAA section 111(d)/129. The EPA's direct final rule would approve letters from states stating that no incinerators of certain categories and classes existed within the states' jurisdiction in accordance with the relevant regulations at 40 CFR 60.23(b) and 62.06. The EPA made no “declaration of no negative effect.” The EPA also provided the appropriate documentation, as scanned copies of the negative declaration letters from the states are available in this rulemaking's docket, filed as supporting documents. These certified negative declarations will serve in lieu of a 111(d)/129 state plan unless a relevant existing designated facility is found within state jurisdiction and development of a state plan is required. In no case would the negative declaration process trigger a NEPA review nor would the EPA be required to undertake an environmental or economic impact analysis of a section 111(d) negative declaration and issue a finding analogous to a “declaration of no negative effect.”

IV. Final Action

The EPA is approving the negative declarations for existing small MWC units for the states of Colorado, Montana, North Dakota, South Dakota and Wyoming. The negative declarations satisfy the requirements of 40 CFR 62.06 and will serve in lieu of CAA section 111(d)/129 state plans for the specified states and source category.

The EPA is also approving the updated negative declarations for existing large MWC units for the states of Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. The negative declarations satisfy the requirements of 40 CFR 62.06 and will serve in lieu of CAA section 111(d)/129 state plans for the specified states and source category.

The EPA is also publishing the updated negative declarations for Start Printed Page 44741existing CISWI units for the states of Montana, South Dakota, Utah and Wyoming. The negative declarations satisfy the requirements of 40 CFR 62.06 and will serve in lieu of CAA section 111(d)/129 state plans for the specified states and source category.

The EPA is also approving the negative declarations for existing OSWI units for the states of Montana, North Dakota, South Dakota, Utah and Wyoming. The negative declarations satisfy the requirements of 40 CFR 62.06 and will serve in lieu of CAA section 111(d)/129 state plans for the specified states and source category.

V. Statutory and Executive Order Review

Under the CAA, the Administrator is required to approve a section 111(d)/129 plan submission that complies with the provisions of the Act and applicable federal regulations at 40 CFR 62.04. Thus, in reviewing section 111(d)/129 plan submissions, the 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 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,
Is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard.

In addition, this rule is not approved to apply on any Indian reservation land or in any other area where the 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. The 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 27, 2017. 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 it shall not postpone the effectiveness of such rule or action. Under CAA section 307(b)(2), this action may not be challenged later in proceedings to enforce its requirements.

List of Subjects in 40 CFR Part 62

Environmental protection
Administrative practice and procedure
Air pollution control
Commercial industrial solid waste incineration
Intergovernmental relations
Municipal solid waste combustion
Other solid waste incineration

Dated: September 7, 2017.

Suzanne J. Bohan,

Acting Regional Administrator, Region 8.

For the reasons stated in the preamble, EPA amends 40 CFR part 62 as set forth below:

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

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

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

Subpart G—Colorado

2. Revise § 62.1370 to read as follows:

§ 62.1370