[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Proposed Rules]
[Pages 48777-48779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20967]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R05-OAR-2018-0588; FRL-9984-57--Region 5]


Air Plan Approval; Minnesota; Commercial and Industrial Solid 
Waste Incineration Units and Other Solid Waste Incineration Units 
Negative Declarations for Designated Facilities and Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is notifying the 
public that we have received negative declarations from Minnesota 
pertaining to the presence of Commercial and Industrial Solid Waste 
Incineration (CISWI) units and Other Solid Waste Incineration (OSWI) 
units in Minnesota. The Minnesota Pollution Control Agency (MPCA) 
submitted its CISWI negative declaration by letter dated February 3, 
2017, and its OSWI negative declaration by letter dated June 21, 2017. 
MPCA notified EPA in its negative declaration letters that there are no 
CISWI or OSWI units subject to the requirements of the Clean Air Act 
(Act) currently operating in Minnesota.

DATES: Comments must be received on or before October 29, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2018-0588, at http://www.regulations.gov or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Margaret Sieffert, Environmental 
Engineer, Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard (AT-18J), Chicago, Illinois 60604, (312) 353-1151, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. Background
    A. Sections 111 and 129 of the Act
    B. Commercial and Industrial Solid Waste Incineration Units
    C. Other Solid Waste Incineration Units
II. Negative Declarations and EPA Analysis
    A. Commercial and Industrial Solid Waste Incineration Units
    B. Other Solid Waste Incineration Units
III. Proposed EPA Action
IV. Statutory and Executive Order Reviews

I. Background

A. Sections 111 and 129 of the Act

    Sections 111 and 129 of the Act set forth EPA's statutory authority 
for regulating new and existing solid waste incineration units. Section 
111(b) directs EPA to publish and periodically revise a list of 
categories of stationary sources which cause or significantly 
contribute to air pollution, and to establish new source performance 
standards (NSPS) within these categories. Section 111(d) grants EPA 
statutory authority to require states to submit to the agency 
implementation plans for establishing performance standards applicable 
to existing sources belonging to those categories established in 
section 111(b).
    Section 111(d) of the Act requires states to submit plans to 
control certain pollutants (designated pollutants) at existing 
facilities (designated facilities) whenever standards of performance 
have been established under section 111(b) for new sources of a source 
category and EPA has established emission guidelines (EGs) for 
designated facilities. 40 CFR 60.21(a) and (b). Section 129 of the Act 
is specific to solid waste combustion, and requires EPA to establish 
performance standards pursuant to section 111 of the Act for each 
category of solid waste incineration units, which includes the 
categories addressed in today's action.
    The regulations at 40 CFR part 60, subpart B, contain general 
provisions applicable to the adoption and submittal of state plans for 
the control of

[[Page 48778]]

designated pollutants from designated facilities under section 111(d) 
of the Act, including those pollutants and facilities designated 
pursuant to section 129 of the Act. Further, 40 CFR part 62, subpart A, 
provides the procedural framework by which EPA will approve or 
disapprove such plans submitted by a state. If a state fails to submit 
a satisfactory plan, the Act provides EPA with the authority to 
prescribe a plan for regulating the designated pollutants at the 
designated facilities. The EPA prescribed plan, also known as a Federal 
plan, is used to regulate designated facilities when there is no EPA 
approved state-specific plan. Further, if there are no designated 
facilities within a state's jurisdiction, the state may submit to EPA a 
letter of certification to that effect (referred to as a ``negative 
declaration'') in lieu of a state plan to satisfy the state's 
obligation. 40 CFR 60.23(b) and 62.06. The negative declaration exempts 
the state from the requirement to submit a state plan for the 
designated pollutants and facilities. Therefore, if a state submits a 
negative declaration for a category of solid waste incineration units, 
the state is not required to submit a state plan for that source 
category.

B. Commercial and Industrial Solid Waste Incineration Units

    On December 1, 2000, EPA promulgated new source performance 
standards for new CISWI units, 40 CFR part 60, subpart CCCC, and EGs 
for existing CISWI units, 40 CFR part 60, subpart DDDD. 65 FR 75338. On 
March 21, 2011, EPA, after voluntarily remanding the 2000 CISWI 
standards and EGs, promulgated final CISWI standards and EGs. 76 FR 
15704. Correspondingly, on the same date, EPA promulgated a final rule 
under the Resource Conservation and Recovery Act (RCRA) to identify 
which non-hazardous secondary materials, when used as fuels or 
ingredients in combustion units, are ``solid wastes.'' 76 FR 15456; see 
40 CFR part 241, Solid Wastes Used as Fuels or Ingredients in 
Combustion Units (also known as the ``Non-Hazardous Secondary Material 
Rule''). The identification of solid waste in the Non-Hazardous 
Secondary Material Rule is used to determine whether a combustion unit 
is required to meet the emissions standards for solid waste 
incineration units issued under sections 111 and 129 of the Act, or 
meet the emissions standards for commercial, industrial, and 
institutional boilers issued under section 112 of the Act. EPA 
subsequently promulgated amendments to both rules on February 7, 2013: 
Commercial and Industrial Solid Waste Incineration Units: 
Reconsideration and Final Amendments; Non-Hazardous Secondary Materials 
That Are Solid Waste; Final Rule. 78 FR 9112. Reconsideration of 
certain aspects of the final CISWI rule resulted in minor amendments. 
81 FR 40956 (June 23, 2016). Pursuant to sections 111(d) and 129 of the 
Act and 40 CFR part 60, subpart B, states were required to revise their 
state plans for existing CISWI units to comply with the amended 
regulations.
    A CISWI unit is defined in 40 CFR 60.2875 as any distinct operating 
unit of any commercial or industrial facility that combusts, or has 
combusted in the preceding 6 months, any solid waste, as the term 
``solid waste'' is defined in the Non-Hazardous Secondary Material 
Rule. A state plan must address all existing CISWI units that commenced 
construction on or before June 4, 2010, or for which modification or 
reconstruction was commenced on or before August 7, 2013, with limited 
exceptions as provided in 40 CFR 60.2555. 40 CFR 60.2550.
    However, as discussed above, if there are no existing designated 
facilities in a state, the state may submit a negative declaration in 
lieu of a state plan. EPA will provide public notice of receipt of a 
state's negative declaration with respect to that solid waste 
incineration unit category. 40 CFR 60.2530. If any unit of a solid 
waste incineration category is subsequently identified in a state for 
which a negative declaration had been submitted, the Federal plan 
implementing the EGs for that source category would apply to that unit. 
In the case of a CISWI unit, subpart DDDD would automatically apply to 
that CISWI unit until a state plan is approved. 40 CFR 60.2530.

C. Other Solid Waste Incineration Units

    EPA promulgated new source performance standards and EGs for OSWIs 
on December 16, 2005. 70 FR 74870. The standards and EGs are codified 
at 40 CFR part 60, subparts EEEE and FFFF, respectively. Thus, states 
were required to submit plans for existing OSWIs pursuant to sections 
111(d) and 129 of the Act and 40 CFR part 60, subpart B.
    An OSWI unit is defined in 40 CFR 60.3078 as a very small municipal 
waste combustor and institutional waste incinerator. The designated 
facilities to which the original EGs applied to are existing OSWI units 
that commenced construction on or before December 9, 2004.

II. Negative Declarations and EPA Analysis

A. Commercial and Industrial Solid Waste Incineration Units

    On February 3, 2017, MPCA submitted its CISWI negative declaration, 
in which MPCA certified that there are no existing CISWI units 
currently operating in Minnesota. Two non-waste determinations under 
the Non-Hazardous Secondary Materials Rule were critical elements of 
MPCA's February 3, 2017 negative declaration letter. Specifically, on 
September 25, 2015, in response to a petition to Region 5, the Regional 
Administrator made a non-waste determination under the Non-Hazardous 
Secondary Materials Rule provision at 40 CFR 241.3(c), with regard to 
the poultry litter burned as fuel in the boiler at the Benson Power, 
LLC power plant in Benson, Minnesota. The Regional Administrator 
determined that the poultry litter at issue was not a solid waste. 
Further, by letter dated October 15, 2015, ReConserve of Minnesota 
Inc., d/b/a Endres Processing, Rosemount, Minnesota, certified to 
Region 5 that it had made a non-waste self-determination under the Non-
Hazardous Secondary Materials Rule provision at 40 CFR 241.3(b), with 
regard to the refuse derived fuel that it processes, as defined at 40 
CFR 241.2, and which meets the legitimacy criteria for fuels at 40 CFR 
241.3(d)(1), that the refuse derived fuel is not a solid waste. 
Correspondingly, by technical review document dated February 23, 2018, 
Region 5's Land and Chemicals Division reviewed and confirmed the non-
waste self-determination. EPA's Office of Resource Conservation and 
Recovery correspondingly concurred with the Region's review and 
conclusion.

B. Other Solid Waste Incineration Units

    On June 21, 2017, MPCA submitted its OSWI negative declaration, in 
which it certified that there are no existing OSWI units currently 
operating in Minnesota.

III. Proposed EPA Action

    EPA is notifying the public of EPA's receipt of MPCA's negative 
declarations for both CISWI and OSWI facilities and that EPA is 
amending 40 CFR part 62 to reflect both negative declarations. For 
CISWI, EPA received the negative declaration on February 3, 2017, and 
for OSWI, EPA received the negative declaration on June 21, 2017.

[[Page 48779]]

IV. Statutory and Executive Order Reviews

General Requirements

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and 
therefore is not subject to review by the Office of Management and 
Budget under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011). For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
action is not an Executive Order 13771 (82 FR 9339, February 2, 2017) 
regulatory action because this action is not significant under E.O. 
12866. This action merely approves state law as meeting Federal 
requirements and merely notifies the public of EPA's receipt of 
negative declarations from an air pollution control agency without any 
existing CISWI or OSWI units in its state. This action imposes no 
requirements beyond those imposed by the state. Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
pertains to pre-existing requirements under state law and does not 
impose any additional enforceable duty beyond that required by state 
law, it 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). This rule 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). This action also does not have 
Federalism implications because it does not have substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely provides notice of receipt of negative declarations, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Act. This rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it just 
notifying the public regarding receipt of the negative declarations.
    In reviewing state plan submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Act. With regard 
to negative declarations for designated facilities received by EPA from 
states, EPA's role is to notify the public of the receipt of such 
negative declarations and revise 40 CFR part 62 accordingly. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state plan submission or negative declaration for failure 
to use VCS. It would thus be inconsistent with applicable law for EPA, 
when it reviews a state plan or negative declaration submission, to use 
VCS in place of a state plan or negative declaration submission that 
otherwise satisfies the provisions of the Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Commercial and industrial solid waste 
incinerators, Intergovernmental relations, Other solid waste 
incinerator units, Reporting and recordkeeping requirements.

    Dated: September 13, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-20967 Filed 9-26-18; 8:45 am]
 BILLING CODE 6560-50-P


