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###### Environmental Protection Agency

          - 40 CFR Part 62
          - [EPA-R06-OAR-2021-0059; FRL-10020-27-Region 6]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Proposed rule.

# SUMMARY:

Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is notifying the public that we have received a CAA section 111(d)/129 negative declaration from Louisiana for existing incinerators subject to the Other Solid Waste Incineration units (OSWI) Emission Guidelines (EG). This negative declaration certifies that existing incinerators subject to the OSWI EG and the requirements of sections 111(d) and 129 of the CAA do not exist within Louisiana. The EPA is proposing to accept the negative declaration and amend the agency regulations in accordance with the requirements of the CAA.

# DATES:

Written comments must be received on or before March 26, 2021.

# ADDRESSES:

                        Submit your comments, identified by Docket No. EPA-R06-OAR-2021-0059, at                         *https://www.regulations.gov*                         or via email to                               ( print page 11213)    *ruan-lei.karolina@epa.gov.*                         Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from                         *Regulations.gov*. The 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. The 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 Karolina Ruan Lei, (214) 665-7346,                         *ruan-lei.karolina@epa.gov.*                         For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit                         *https://www.epa.gov/​dockets/​commenting-epa-dockets.*

*Docket:*                         The index to the docket for this action is available electronically at                         *www.regulations.gov.*                         While all documents in the docket are listed in the index, some information may not be publicly available due to docket file size restrictions or content (                        *e.g.,*                         CBI).                    

# FOR FURTHER INFORMATION CONTACT:

                        Karolina Ruan Lei, EPA Region 6 Office, Air and Radiation Division—State Planning and Implementation Branch, 1201 Elm Street, Suite 500, Dallas, TX 75270, (214) 665-7346,                         *ruan-lei.karolina@epa.gov.*                         Out of an abundance of caution for members of the public and our staff, the EPA Region 6 office will be closed to the public to reduce the risk of transmitting COVID-19. We encourage the public to submit comments via                         *https://www.regulations.gov,*                         as there will be a delay in processing mail and no courier or hand deliveries will be accepted. Please call or email the contact listed above if you need alternative access to material indexed but not provided in the docket.                    

# SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” means the EPA.

## I. Background

Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and the EPA has established emission guidelines for such existing sources. CAA section 129 directs the EPA to establish standards of performance for new sources (NSPS) and emissions guidelines (EG) for existing sources for each category of solid waste incineration unit. Under CAA section 129, NSPS and EG must contain numerical emissions limitations for particulate matter, opacity (as appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans. While NSPS are directly applicable to affected facilities, EG for existing units are intended for states to use to develop a state plan to submit to the EPA. Once approved by the EPA, the state plan becomes federally enforceable. If a state does not submit an approvable state plan to the EPA, the EPA is responsible for developing, implementing, and enforcing a federal plan.

                    The regulations at 40 CFR part 60, subpart B, contain general provisions applicable to the adoption and submittal of state plans for controlling designated pollutants. Additionally, 40 CFR part 62, subpart A, provides the procedural framework by which EPA will approve or disapprove such plans submitted by a state. When an affected facility is located in a state, the state must then develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect (                    *i.e.,*                     negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require the submittal of a CAA section 111(d)/129 plan.                

                    EPA promulgated the OSWI NSPS and EG on December 16, 2005, codified at 40 CFR part 60, subparts EEEE and FFFF, respectively (70 FR 74870). Thus, states were required to submit plans for incinerators subject to the OSWI EG pursuant to sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B. The designated facilities to which the OSWI EG apply are existing incinerators [1]                                          subject to the OSWI EG that commenced construction on or before December 9, 2004, and were not modified or reconstructed on or after June 16, 2006, as specified in 40 CFR 60.2991 and 60.2992, with limited exceptions as provided under 40 CFR 60.2993. The EPA proposed revisions to the OSWI EG and NSPS on August 31, 2020 (85 FR 54178). When the EPA finalizes the revisions to the OSWI EG,[2]                                          each state (and air quality control jurisdiction) will need to submit a negative declaration or plan, as applicable, for those sources subject to the requirements of the revised OSWI EG.                

                    The Louisiana Department of Environmental Quality (LDEQ) determined that there are no sources subject to the OSWI EG in its individual air pollution control jurisdiction in Louisiana. In order to fulfill its obligations under CAA sections 111(d) and 129, LDEQ submitted a negative declaration certifying that incinerators subject to the OSWI EG and the requirements of sections 111(d) and 129 of the CAA do not exist within its jurisdiction. LDEQ submitted its OSWI negative declaration letter to the EPA on November 24, 2020.[3]                                          A copy of the negative declaration letter can be found in the docket for this rulemaking. EPA is notifying the public that the negative declaration fulfills LDEQ's obligations under CAA sections 111(d) and 129. The submittal of this negative declaration exempts Louisiana from the requirement to submit a state plan for incinerators subject to the OSWI EG under 40 CFR part 60, subpart FFFF.                

## II. Proposed Action

The EPA is proposing to amend 40 CFR part 62, subpart T, to reflect receipt of the negative declaration letter from LDEQ, submitted on November 24, 2020, certifying that there are no existing incinerators subject to the OSWI EG at 40 CFR part 60, subpart FFFF, in Louisiana in accordance with 40 CFR 60.2982, 40 CFR 60.23(b), 40 CFR 62.06, and sections 111(d) and 129 of the CAA.

## III. Statutory and Executive Order Reviews

                    Under the CAA, the Administrator is required to approve a CAA section 111(d)/129 submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, subparts B and FFFF; and 40 CFR part 62, subpart A. With regard to                           ( print page 11214)                        negative declarations for designated facilities received by the EPA from states, the EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. 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
    - Does not provide the 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).

This proposed rule also does not have Tribal implications because it will not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, 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
      - Intergovernmental relations
      - Reporting and recordkeeping requirements
      - Waste treatment and disposal

Dated: February 11, 2021.

David Gray,

Acting Regional Administrator, Region 6.

# Footnotes

1.                             These incinerators include both OSWI and air curtain incinerators (ACI). These ACI that are subject to the OSWI EG at 40 CFR part 60, subpart FFFF, are those ACI that may not fit the definition of an “OSWI” under the OSWI EG as they burn certain types of wastes. See 40 CFR 60.2994(b) and 40 CFR 60.3078.                    
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2.                             The court ordered deadline to promulgate the final OSWI review is May 31, 2021.                         *Sierra Club*                         v.                         *Wheeler,*                         330 F. Supp. 3d 407. (D.D.C. 2018).                    
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3.                             The Louisiana negative declaration letter for incinerators subject to the OSWI EG does not cover sources located in Indian country.                    
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[FR Doc. 2021-03196 Filed 2-23-21; 8:45 am]

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