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###### Environmental Protection Agency

          - 40 CFR Part 62
          - [EPA-R02-OAR-2018-0712; FRL-9981-99—Region 2]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Final rule.

# SUMMARY:

The Environmental Protection Agency (EPA) is approving a Clean Air Act (CAA) section 111(d)/129 negative declaration for the United States Virgin Islands, for Commercial and industrial solid waste incineration (CISWI) units. This negative declaration certifies that CISWI units subject to sections 111(d) and 129 of the CAA do not exist within the jurisdiction of the United States Virgin Islands. The EPA is accepting the negative declaration in accordance with the requirements of the CAA.

# DATES:

This final rule is effective on September 13, 2018.

# FOR FURTHER INFORMATION CONTACT:

                        Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, New York 10007-1866 at 212-637-3764 or by email at                         *Linky.Edward@epa.gov*.                    

# SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” or “our” refer to the EPA. This section provides additional information by addressing the following:

I. Background

II. What comments were received in response to the EPA's proposed rule?

III. What action is EPA taking today?

IV. Statutory and Executive Order Reviews

## I. Background

                    The Clean Air Act (CAA) requires that state [1]                                          regulatory agencies implement the emission guidelines and compliance times using a state plan developed under sections 111(d) and 129 of the CAA.                

The general provisions for the submittal and approval of state plans are codified in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A. Section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants.

Section 129 requires emission guidelines to be promulgated for all categories of solid waste incineration units, including commercial and industrial solid waste incineration (CISWI) units. A CISWI unit is defined, in general, 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 that term is defined at 40 CFR 241.” See 40 CFR 60.2875. Section 129 mandates that all plan requirements be at least as protective as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and Title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the emission guidelines and compliance times.

                    States have options other than submitting a state plan in order to fulfill                           ( print page 40154)                        their obligations under CAA sections 111(d) and 129. If a state does not have any existing CISWI units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the state (                    *i.e.,*                     negative declaration) in lieu of a state plan. The negative declaration exempts the state from the requirements of subpart B that would otherwise require the submittal of a CAA section 111(d)/129 plan.                

On March 21, 2011 (76 FR 15704), the EPA established emission guidelines and compliance times for existing CISWI units (New Source Performance Standards (NSPS) and Emission Guidelines (EG)). The emission guidelines and compliance times are codified at 40 CFR part 60, subpart DDDD. Following promulgation of the 2011 CISWI rule, EPA received petitions for reconsideration requesting to reconsider numerous provisions in the 2011 CISWI rule. EPA granted reconsiderations on specific issues and promulgated a CISWI reconsideration rule on Fegruary 7, 2013. 78 FR 9112. EPA again received petitions to further reconsider certain provisions of the 2013 NSPS and EG for CISWI units. On January 21, 2015 EPA granted reconsideration of four specific issues and finalized reconsideration of the CISWI NSPS and EG on June 23, 2016 (81 FR 40956).

In order to fulfill obligations under CAA sections 111(d) and 129, the Department of Planning and Natural Resources (DPNR) of the Government of the United States Virgin Islands submitted a negative declaration letter to the EPA on August 17, 2016. The submittal of this declaration exempts the United States Virgin Islands from the requirement to submit a state plan for existing CISWI units. On May 2, 2018 (83 FR 19195), the EPA proposed to approve DPNR's negative declaration letter that certifies there are no existing CISWI units located in the United States Virgin Islands.

## II. What comments were received in response to the EPA's proposed rule?

In response to the EPA's May 2, 2018 (83 FR 19195) proposed rulemaking, the EPA received no public comments.

## III. What action is EPA taking today?

In this final rule the EPA will amend 40 CFR part 62 to reflect receipt of the negative declaration letter from the United States Virgin Islands, certifying that there are no existing CISWI units subject to 40 CFR part 60, subpart DDDD, in accordance with section 111(d) of the CAA.

## IV. 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 submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action, as finalized, 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, as finalized:
    - 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) and 13563 ( 76 FR 3821 , January 21, 2011);
    - is not an Executive Order 13771  regulatory action because this action is not significant under  Executive Order 12866 ;
    - 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 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, this final 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).

                    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 October 15, 2018. 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 section 307(b)(2).)

# List of Subjects in 40 CFR Part 62

      - Environmental protection
      - Air pollution control
      - Administrative practice and procedure
      - Intergovernmental relations
      - Reporting and recordkeeping requirements

Dated: July 25, 2018.

Peter D. Lopez,

Regional Administrator, Region 2.

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.*
      ( print page 40155)    
2. Subpart CCC is amended by adding an undesignated center heading and § 62.13359 to read as follows: 

## Air Emissions From Commercial and Industrial Solid Waste Incineration (CISWI) Units That Commenced Construction on or Before June 4, 2010, or That Commenced Modification or Reconstruction After June 4, 2010 But Not Later Than August 7, 2013

§ 62.13359 

Letter from the Virgin Islands Department of Planning and Natural Resources submitted August 17, 2016 to Regional Administrator Judith A. Enck certifying that the United States Virgin Islands has no existing units pursuant to 40 CFR part 60, subpart DDDD, that commenced construction on or before June 4, 2010, or that commenced modification or reconstruction after June 4, 2010 but not later than August 7, 2013.

# Footnotes

1.                             Section 302(d) of the CAA includes the United States Virgin Islands in the definition of the term “State.”                    
        Back to Citation      

[FR Doc. 2018-17371 Filed 8-13-18; 8:45 am]

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