Approval and Promulgation of Hospital/Medical/Infectious Waste Incinerators State Plan for Designated Facilities and Pollutants: Idaho

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving the State of Idaho's section 111(d) State Plan for controlling emissions from existing Hospital/Medical/Infectious Waste Incinerators (HMIWI). The plan was submitted on December 16, 1999, to fulfill the requirements of sections 111(d) and 129 of the Clean Air Act. The State Plan adopts and implements the Emissions Guidelines applicable to existing HMIWIs, and establishes emission limits and controls for sources constructed on or before June 20, 1996. EPA has determined that Idaho's State Plan meets CAA requirements and hereby approves this State Plan, thus making it federally enforceable.

DATES:

This action will be effective on June 20, 2000, without further notice, unless EPA receives relevant adverse comments by May 22, 2000. If EPA receives such comments, then it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that this rule will not take effect.

ADDRESSES:

Written comments should be addressed to: Catherine Woo, US EPA, Region X, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101.

Copies of materials submitted to EPA may be examined during normal business hours at the following location: US EPA, Region X, Office of Air Quality, 1200 Sixth Avenue, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT:

Catherine Woo, US EPA, Region X, Office of Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, Washington 98101, (206) 553-1814.

SUPPLEMENTARY INFORMATION:

Throughout this document, whenever we, us or our is used, this refers to EPA. Information regarding this action is presented in the following order:

I. EPA Action

What action is EPA taking today?

Why is EPA taking this action?

Who is affected by Idaho's State Plan?

How does this approval affect sources located in Indian Country?

How does this approval relate to the Federal Plan?

II. Background

What is a State Plan?

What is a HMIWI State Plan?

Why are we requiring Idaho to submit a HMIWI State Plan?

What are the requirements for a HMIWI State Plan?

III. Idaho's State Plan

What is contained in the Idaho State Plan?

What approval criteria did we use to evaluate Idaho's State Plan?

IV. EPA Rulemaking Action

V. Administrative Requirements

I. EPA Action

What Action Is EPA Taking Today?

We are approving the State of Idaho's section 111(d) State Plan for controlling emissions from existing Hospital/Medical/Infectious Waste Incinerators (HMIWI). Idaho submitted its State Plan on December 16, 1999, to fulfill the requirements of sections 111(d) and 129 of the Clean Air Act (CAA). The State Plan adopts and implements the Emissions Guidelines (EG) applicable to existing HMIWIs, and establishes emission limits and controls for sources constructed on or before June 20, 1996. This approval, once effective, will make the Idaho HMIWI rules included in the plan federally enforceable.

Why Is EPA Taking This Action?

We have evaluated Idaho's HMIWI State Plan for consistency with the CAA, EPA guidelines and policy. We have determined that Idaho's State Plan meets all requirements, and, therefore, we are approving Idaho's plan to implement and enforce the standards applicable to existing HMIWI.

Who Is Affected by Idaho's State Plan?

Idaho's State Plan regulates all the sources designated by EPA's EG for existing HMIWIs which commenced construction on or before June 20, 1996. If your facility meets this criteria, then you are subject to these regulations.

How Does This Approval Affect Sources Located in Indian Country?

Idaho's State Plan does not cover facilities located in Indian Country. Therefore, any sources located in Indian Country will be subject to the Federal plan, once promulgated (see below).

How Does This Approval Relate to the Federal Plan?

The EPA plans to promulgate a Federal Plan which will cover sources located in Indian Country and sources for which there is no approved State Plan. Because there is no Federal Plan yet, existing HMIWI sources are not currently subject to any federal requirements. However, upon approval of Idaho's State Plan, HMIWI facilities within Idaho's jurisdiction will be subject to Idaho's State Plan as of the effective date of this action.

II. Background

What Is a State Plan?

Section 111 of the CAA, “Standards of Performance for New Stationary Sources,” authorizes us to set air emissions standards for certain categories of sources. These standards are called New Source Performance Standards (NSPS). When a NSPS is promulgated for new sources, section 111(d) also requires that we publish an EG applicable to the control of the same pollutant from existing (designated) facilities. States with designated facilities must then develop a State Plan to adopt the EG into the State's body of regulations. States must also include in their State Plan other elements, such as inventories, legal authority, and public participation documentation, to demonstrate their ability to enforce the State Plans.

What Is a HMIWI State Plan?

An HMIWI State Plan is a State Plan (as described above) that controls air pollutant emissions from existing incinerators which burn hospital waste or medical/infectious waste.

Why Are We Requiring Idaho To Submit a HMIWI State Plan?

When we developed NSPS for HMIWIs, we simultaneously developed the EG to control air emissions from existing HMIWIs (see 62 FR 48348-48391, September 15, 1997). Under section 129 of the CAA, the EG are not federally enforceable; therefore, section 129 of the CAA also requires states to submit to EPA for approval State Plans that implement and enforce the EG. These State Plans must be at least as protective as the EG, and they become federally enforceable upon approval by EPA. The procedures for adopting and submitting State Plans are located in 40 CFR part 60, subpart B. If a State fails to have an approvable plan in place by September 15, 1999, the EPA is required to promulgate a Federal plan to establish requirements for those sources not under an EPA-approved State Plan. Even though EPA has not yet promulgated such a plan, Idaho's State Plan is still approvable since it was deemed at least as protective as the standards set in the EG. Idaho has developed and submitted a State Plan, as required by section 111(d) of the CAA, to gain federal approval to implement and enforce the HMIWI EG.

What Are the Requirements for a HMIWI State Plan?

A section 111(d) State Plan submittal must meet the requirements of 40 CFR part 60, subpart B, sections 60.23 through 60.26, and 40 CFR part 60, subpart Ce. Subpart B contains the procedures for adoption and submittal of State Plans. This subpart addresses public participation, legal authority, emission standards and other emission limitations, compliance schedules, emission inventories, source surveillance, and compliance assurance and enforcement requirements. EPA promulgated the EG as 40 CFR part 60, subpart Ce on September 15, 1997. Subpart Ce contains the technical requirements for existing HMIWI sources and applies to sources that commenced construction on or before June 20, 1996. A State will generally address the HMIWI technical requirements by adopting by reference subpart Ce. The section 111(d) state plan is required to be submitted within one year of the EG promulgation date, i.e., by September 15, 1998. Prior to submittal to us, the State must make available to the public the State Plan and provide opportunity for public comment.

III. Idaho's State Plan

What Is Contained in the Idaho State Plan?

The State of Idaho submitted its section 111(d)/129 State Plan on December 16, 1999, for implementing EPA's EG for existing HMIWIs. Idaho adopted the EG requirements into IDAPA 16.01.01.862 (effective November 19, 1999) entitled, “Emission Guidelines for HMIWI That Commenced Construction Before June 20, 1996.” Idaho's section 111(d) Plan contains:

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

(2) State Rules adopted into 16.01.01.862 as the mechanism for implementing and enforcing the State Plan;

(3) Emission inventories of all Idaho's applicable sources, which is approximately fifteen existing HMIWIs. In these inventories, all designated pollutants have been identified and data have been provided for each;

(4) Emission limits that are as protective as the EG;

(5) Enforceable compliance schedules whereby all sources must comply with all emission standards within one year from the effective date of the State Plan. The State Plan was effective December 16, 1999; therefore, final compliance will be December 16, 2000;

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

(7) Records for the public notice and hearing; and

(8) Provisions for Idaho's progress reports to EPA.

What Approval Criteria Did We Use To Evaluate Idaho's State Plan?

We reviewed Idaho's HMIWI State Plan for approval against the following criteria: 40 CFR part 60, subpart B, sections 60.23 through 60.26; and 40 CFR part 60, subpart Ce, sections 60.30(e) through 60.39(e). A detailed discussion of our evaluation of Idaho's State Plan is included in our technical support document located in the official file for this action and available from the EPA contact listed above. We have determined that Idaho's HMIWI State Plan meets all of the applicable approval criteria.

IV. EPA Rulemaking Action

We are approving, through direct final rulemaking action, Idaho's section 111(d) and 129 State Plan for HMIWIs. EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the Idaho State Plan should relevant adverse comments be filed. This action will be effective on June 20, 2000, without further notice, unless EPA receives relevant adverse comments by May 22, 2000.

If EPA receives such comments, then it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 20, 2000, and no further action will be taken on the proposed rule.

V. Administrative Requirements

A. General Requirements

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. 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.). 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 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will 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), because it 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 Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing State Plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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 for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State Plan submission, to use VCS in place of a State Plan submission that otherwise satisfies the provisions of the Clean Air 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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.).

B. Submission to Congress and the Comptroller General

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. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

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 June 20, 2000. 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
• Intergovernmental relations
• Reporting and recordkeeping requirements

40 CFR Part 62 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. 7401-7642.

Subpart N—Idaho

2. Subpart N is amended by adding § 62.3110 and an undesignated center heading to read as follows:

Metals, Acid Gases, Organic Compounds, Particulates and Nitrogen Oxide Emissions From Existing Hospital/Medical/Infectious Waste Incinerators