[Federal Register Volume 64, Number 220 (Tuesday, November 16, 1999)]
[Rules and Regulations]
[Pages 62114-62117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29582]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[NE 086-1086a; FRL-6473-8]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; Control of Emissions From Hospital/Medical/
Infectious Waste Incinerators (HMIWI); State of Nebraska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the state of Nebraska's section 111(d) plan 
for controlling emissions from existing HMIWIs. The plan was submitted 
to fulfill the requirements of sections 111 and 129 of the Clean Air 
Act (CAA). The state plan establishes emission limits and controls for 
sources constructed on or before June 20, 1996.

DATES: This direct final rule is effective on January 18, 2000 without 
further notice, unless EPA receives adverse comment by December 16, 
1999. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Wayne Kaiser, Air 
Planning and Development Branch, 901 North 5th Street, Kansas City, 
Kansas 66101.
    Copies of the state submittal are available at the following 
addresses for inspection during normal business hours: Environmental 
Protection Agency, Air Planning and Development Branch, 901 North 5th 
Street, Kansas City, Kansas 66101; and the Environmental Protection 
Agency, Air and Radiation Docket and Information Center, Air Docket 
(6102), 401 M Street, SW, Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Wayne Kaiser at (913) 551-7603.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us, 
or our'' is used, we mean EPA.
    Information regarding this action is presented in the following 
order:

    What are the requirements of section 129 of the CAA?
    What is a section 111(d) state plan?
    What is Subpart Ce?
    What are the requirements for the HMIWI state plan? What is 
contained in the Nebraska state plan?
    What are the approval criteria for the state plan?

What Are the Requirements of Section 129 of the CAA?

    Section 129 of the CAA Amendments of 1990 requires us to set air 
emission standards and emission guidelines (EG) under the authority of 
section 111 of the CAA to reduce pollution from incinerators that burn 
solid waste. Incinerators that burn medical waste are classified as 
solid waste incinerators and therefore must be regulated.

What Is a Section 111(d) State Plan?

    Section 111(d) 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 an NSPS is promulgated for new 
sources, we also

[[Page 62115]]

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 its body of 
regulations and submit it to us for approval. The state plan is called 
a 111(d) plan.

What Is Subpart Ce?

    We issued regulations to reduce air pollution from incinerators 
that are used to burn hospital waste and/or medical/infectious waste. 
The NSPS at 40 CFR Part 60, Subpart Ec, and the EG, Subpart Ce, were 
promulgated by us on September 15, 1997 (62 FR 48374). These rules 
apply to new and existing incinerators used by hospitals and health 
care facilities, as well as to incinerators used by commercial waste 
disposal companies to burn hospital waste and/or medical/infectious 
waste. The EG applies to existing HMIWIs that commenced construction on 
or before June 20, 1996.
    The Subpart Ce EG is not a direct Federal regulation but is a 
``guideline'' for states to use in regulating existing HMIWIs. The EG 
requires states to submit for our approval a section 111(d) state plan 
containing air emission regulations and compliance schedules for 
existing HMIWIs.

What Are the Requirements for the 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 Ce. Subpart B addresses public participation, legal authority, 
emission standards and other emission limitations, compliance 
schedules, emission inventories, source surveillance, and compliance 
assurance and enforcement requirements. The technical requirements for 
existing HMIWI sources are contained in Subpart Ce. 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. If a 
state fails to have an approvable plan in place by September 15, 1999, 
sources will be subject to a Federal plan on that date.

What Is Contained in the Nebraska State Plan?

    The state of Nebraska submitted its section 111(d) state plan to us 
for approval on July 30, 1999. The state adopted the EG requirements 
into Nebraska Department of Environmental Quality rules at Title 129, 
Chapter 18--New Source Performance Standards and Emission Limits For 
Existing Sources, effective December 15, 1998. The section 111(d) state 
plan contains:
    1. A demonstration of the state's legal authority to implement the 
section 111(d) state plan.
    2. State Rule Title 129, Chapter 18--New Source Performance 
Standards and Emission Limits For Existing Sources, as the enforceable 
mechanism.
    3. An inventory of sources in Appendix B.
    4. An emissions inventory in Appendix C.
    5. Emission limits, as protective as the EG, that are contained in 
Chapter 18, 004.02.
    6. A final compliance date of September 15, 2002.
    7. Testing, monitoring, and inspection requirements that are 
contained in Chapter 18, 004.02.
    8. Reporting and recordkeeping requirements for the designated 
facilities that are contained in Chapter 18, 004.02.
    9. Operator training and qualification requirements that are 
contained in Chapter 18, 004.02.
    10. Requirements for the development of waste management plans that 
are contained in Chapter 18, 004.02.
    11. A record of the public notice and hearing requirements that is 
contained in Appendix D.
    12. Provisions for progress reports to EPA that are contained in 
Section M.
    13. Title V permit application due date requirements that are 
contained in Chapter 18, 004.02A.
    14. A final compliance date of September 15, 2002.

What Are the Approval Criteria for the State Plan?

    The state plan was reviewed for approval against the following 
criteria: 40 CFR 60.23 through 60.26, Subpart B, ``Adoption and 
Submittal of State Plans for Designated Facilities,'' and 40 CFR 60, 
60.30e through 60.39e, Subpart Ce, ``Emission Guidelines and Compliance 
Times for Hospital/Medical/Infectious Waste Incinerators.'' A detailed 
discussion of our evaluation of the state plan is included in our 
technical support document (TSD) located in the official file for this 
action and available from the EPA contact listed above. The state plan 
meets all of the applicable approval criteria.

Conclusion

Final Action

    Based on the rationale discussed above and in further detail in the 
TSD associated with this action, EPA is approving Nebraska's July 30, 
1999, section 111(d) state plan for the control of HMIWI emissions, 
except for those facilities located in Indian country. Any facilities 
located in Indian country will be subject to a Federal plan. In 
Nebraska there are no known HMIWIs in Indian country.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal 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 SIP revision should 
adverse comments be filed. This rule will be effective January 18, 2000 
without further notice unless the Agency receives adverse comments by 
December 16, 1999.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the 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 January 18, 2000 and no 
further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866, entitled ``Regulatory Planning and 
Review.''

B. E.O. On Federalism

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal Government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to

[[Page 62116]]

issue the regulation. In addition, E.O. 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.'' Today's rule does not 
create a mandate on state, local, or tribal governments. The rule does 
not impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
    On August 4, 1999, President Clinton issued a new E.O. on 
federalism, E.O. 13132 [64 FR 43255 (August 10, 1999)], which will take 
effect on November 2, 1999. In the interim, the current E.O. 12612 [52 
FR 41685 (October 30, 1987)] on federalism still applies. This rule 
will not have a substantial direct effect on 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 E.O. 12612, because it merely approves, at 
the Federal level, preexisting state requirements. The rule affects 
only one state, and does not alter the relationship or the distribution 
of power and responsibilities established in the CAA.

C. E.O. 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is not an 
economically significant regulatory action as defined by E.O. 12866, 
and it does not establish a further health or risk-based standard.

D. E.O. 13084

    Under E.O. 13084, Consultation and Coordination with Indian Tribal 
Governments, EPA may not issue a regulation that is not required by 
statute, that significantly or uniquely affects the communities of 
Indian tribal governments, and that imposes substantial direct 
compliance costs on those communities, unless the Federal Government 
provides the funds necessary to pay the direct compliance costs 
incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
provide to the OMB, in a separately identified section of the preamble 
to the rule, a description of the extent of EPA's prior consultation 
with representatives of affected tribal governments, a summary of the 
nature of their concerns, and a statement supporting the need to issue 
the regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act (RFA)

    Under the RFA, 5 U.S.C. 600 et seq., EPA must prepare a regulatory 
flexibility analysis assessing the impact of any proposed or final rule 
on small entities (5 U.S.C. 603 and 604). Alternatively, EPA may 
certify that the rule will not have a significant impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and government entities 
with jurisdiction over populations of less than 50,000.
    State plan approvals under section 111 of the CAA do not create any 
new requirements but simply approve requirements that the state is 
already imposing. In addition, this final rule merely codifies Federal 
approvals of state requirements which have already occurred. Therefore, 
because the Federal state plan approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to state, local, or tribal governments in the aggregate, 
or to the private sector, of $100 million or more. Under Section 205, 
EPA must select the most cost-effective and least burdensome 
alternative that achieves the objectives of the rule and is consistent 
with statutory requirements. Section 203 requires EPA to establish a 
plan for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
preexisting requirements under state law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

G. 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 United States Senate, the United States 
House of Representatives, and the United States Comptroller General 
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).

H. Petitions for Judicial Review

    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 January 18, 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 40 CFR Part 62

    Environmental protection, Air pollution control, Intergovernmental

[[Page 62117]]

relations, Reporting and recordkeeping requirements.

    Dated: October 20, 1999.
Dennis Grams,
Regional Administrator, Region VII.

    Chapter I, 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 CC--Nebraska

    2. Subpart CC is amended by adding Sec. 62.6914 and an undesignated 
center heading to read as follows:

Air Emissions From Existing Hospital/Medical/Infectious Waste 
Incinerators


Sec. 62.6914  Identification of plan.

    (a) Identification of plan. Nebraska plan for the control of air 
emissions from hospital/medical/infectious waste incinerators submitted 
by the Nebraska Department of Environmental Quality on July 30, 1999.
    (b) Identification of sources. The plan applies to existing 
hospital/medical/infectious waste incinerators constructed on or before 
June 20, 1996.
    (c) Effective date. The effective date of the plan is January 18, 
2000.

[FR Doc. 99-29582 Filed 11-15-99; 8:45 am]
BILLING CODE 6560-50-P