Approval and Promulgation of Air Quality Implementation Plans; Ohio Rules to Control Emissions From Hospital, Medical, and Infectious Waste Incinerators

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is giving final approval to a State plan submitted by Ohio concerning criteria pollutant and toxic emissions from Hospital, Medical and Infectious Waste Incinerators (HMIWI) in the State. Ohio prepared a plan based on Clean Air Act (CAA) sections 111(d) and 129 for existing hospital, medical and infectious waste incinerators and asked that it be reviewed and approved as the State plan. The State's HMIWI plan sets out requirements for affected units at least as stringent as the EPA requirements entitled “Emission Guidelines (EG) and Compliance Times for Hospital/Medical/ Infectious Waste Incinerators” published in the Federal Register dated September 15, 1997. For approval, the State plan must include requirements for emission limits at least as protective as those requirements stated in the emission guideline. We are approving, with some exceptions, items requested in Ohio's letter of October 18, 2005, including limits for a variety of emissions from HMIWI units including mercury, cadmium, lead, hydrogen chloride, and dioxin and criteria pollutants. The rules in the plan apply to existing sources only, for which construction commenced on or before June 20, 1996. New sources constructed after this date are covered by a Federal new source performance standard. The Ohio rules, contained in the plan, were proposed on March 22, 2002, and a public hearing was held on April 29, 2002. The rules became effective in Ohio on March 23, 2004. EPA proposed approval in the Federal Register on January 10, 2007, and received no comments on the proposal. We are approving the Ohio plan, with several noted exceptions, because it meets the requirements of the EPA emission guideline affecting hospital incinerators.

DATES:

This final rule is effective on August 6, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0560. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (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 either electronically through www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone John Paskevicz, Engineer, at (312) 886-6084 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6084, paskevicz.john@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What action is being taken by EPA?

II. The HMIWI State Plan Requirement

III. What does the Ohio plan contain?

IV. Is my HMIWI subject to these regulations?

V. Why is the Ohio HMIWI plan approvable?

VI. Statutory and Executive Order Reviews

I. What action is being taken by EPA?

We are approving selected portions of the Ohio plan to control the air emissions from HMIWI units in the State. Our approval is based on EPA's review of the Ohio plan compared to the EPA Emission Guideline (EG) document dated September 15, 1997, 40 CFR part 60, subpart Ce (Emission Guidelines and Compliance Times for HMIWIs, see 62 FR 48348-48391). As noted in our proposed rule approval, (72 FR 1197, dated January 10, 2007) we are not taking action on the following portions of the Ohio Rule 3745-75-02(I)(1) (arsenic), -02(I)(2) (beryllium), -02(I)(4) (chromium), and -02(I)(7) (nickel) because these pollutants and the emission limits noted in the State rule for these pollutants are not part of the EPA emission guideline document. EPA approves all other items requested in the Ohio letter of October 18, 2005.

II. The HMIWI State Plan Requirement

A HMIWI plan is a plan to control air pollutant emissions from existing incinerators which burn hospital waste or medical or infectious waste.

States were required under section 111(d) and 129 of the CAA to submit State plans to control emissions from existing HMIWI units. The requirement for a State plan was triggered when EPA published the EG for HMIWI under 40 CFR part 60, subpart Ce (62 FR 48348, September 15, 1997). The State plan is required to reduce several types of air pollutants associated with waste incineration.

The State plan includes control requirements which will reduce emissions of criteria pollutants including: particulate matter, sulfur dioxide, carbon monoxide, and nitrogen oxides. The approved plan will also control the emissions of toxic pollutants including: hydrogen chloride, lead, cadmium, mercury, and dioxin/furans. All of these pollutants cause adverse effects to public health and the environment. Dioxin, lead, and mercury bio-accumulate through the food chain. Serious developmental and adult effects in humans, primarily damage to the nervous system, have been associated with exposures to mercury. Exposure to dioxin and furans can cause skin disorders, cancer, and reproductive effects such as endometriosis. Dioxin and furans can also affect the immune system. Acid gases affect the respiratory tract, as well as contribute to the acid rain that damages lakes and harms agriculture and forests and man-made structures. Particulate matter has been linked with adverse health effects, including aggravation of existing respiratory and cardiovascular disease and increased risk of premature death. Nitrogen oxide emissions contribute to the formation of acid rain and ground level ozone, which is associated with a number of adverse health and environmental effects.

III. What does the Ohio plan contain?

The Ohio Plan contains:

1. A demonstration of the State's legal authority to implement the section 111(d)/129 State Plan;

2. State rule, known as OAC 3745-75, as the enforceable mechanism;

3. An inventory of known active and exempt facilities, along with estimates of their potential air emissions;

4. Emission limits that are as protective as the EG;

5. A compliance date accomplished under the Federal Plan;

6. Testing, monitoring, reporting and recordkeeping requirements for the designated facilities;

7. Records from the public hearing on the State Plan; and,

8. Provisions for progress reports to EPA.

IV. Is my HMIWI subject to these regulations?

If your HMIWI as defined by Ohio is presently in operation and you rely on it to get rid of your hospital, medical and infectious waste and it was built on or before June 20, 1996, then it is subject to the State's regulation.

V. Why is the Ohio HMIWI plan approvable?

We compared the Ohio rules to the EPA's EG for HMIWI and found the Ohio rules matching very closely with the EPA EG with one exception. The exception is the Ohio rules also cover additional toxic pollutants including arsenic, beryllium, chromium, and nickel. These additional toxic pollutants are not part of the HMIWI EG and EPA is not including these pollutants in today's approved rule.

VI. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” 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).

Regulatory Flexibility Act

This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. 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.).

Unfunded Mandates Reform Act

Because this rule approves 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).

Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

This 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).

Executive Order 13132: Federalism

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 approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.

Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

National Technology Transfer Advancement Act

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. 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.

Paperwork Reduction Act

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.).

Congressional Review Act

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 rule 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 September 4, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Administrative practice and procedure
• Air pollution control
• Waste treatment and disposal
• Intergovernmental relations
• Reporting and recordkeeping requirements

For the reasons stated in the preamble, part 62, chapter I, of title 40 of the Code of Federal Regulations is amended as follows:

PART 62—[AMENDED]

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

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

Subpart KK—Ohio

2. Subpart KK is amended by adding an undesignated center heading and § 62.8880 to read as follows:

Emissions From Hospital, Medical, and Infectious Waste Incinerators (HMIWI)