Rule2022-27134
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 19, 2022
Effective
January 18, 2023
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 242 (Monday, December 19, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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: <a href="/cdn-cgi/l/email-protection#472c2e2b372633352e242c692d2234342e24260722372669202831"><span class="__cf_email__" data-cfemail="e18a888d9180959388828acf8b849292888280a1849180cf868e97">[email protected]</span></a>.
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). <a href="https://legiscan.com/NH/bill/HB358/2019">https://legiscan.com/NH/bill/HB358/2019</a>.
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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
(NO<INF>X</INF>) 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:
<bullet> 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;
<bullet> Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
<bullet> Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
<bullet> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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 <a href="/cdn-cgi/l/email-protection#6107134f080f1211040215080e0f210f0013004f060e17"><span class="__cf_email__" data-cfemail="5335217d3a3d20233630273a3c3d133d3221327d343c25">[email protected]</span></a>, or go to:
<a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a>.
(2) State of New Hampshire, New Hampshire Department of
Environmental Services, 29 Hazen Drive, Concord, NH 03302, 603-271-
[[Page 77526]]
3503, <a href="https://www.des.nh.gov/rules-and-regulatory/administrative-rules">https://www.des.nh.gov/rules-and-regulatory/administrative-rules</a>.
(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]
BILLING CODE 6560-50-P
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