[Federal Register Volume 65, Number 114 (Tuesday, June 13, 2000)]
[Rules and Regulations]
[Pages 37046-37049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14766]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[WV--6013a; FRL-6714-2]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; West Virginia; Control of 
Emissions From Existing Hospital/Medical/Infectious Waste Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the West Virginia hospital/medical/infectious 
waste incinerator (HMIWI) 111(d)/129 plan ( the ``plan'') submitted on 
August 18, 1999 by the West Virginia Division of Environmental 
Protection (WV DEP), and the subsequent plan amendment of April 19, 
2000. The plan establishes emission limitations and other requirements 
for existing HMIWIs, and provides for the implementation and 
enforcement of those limitations and requirements.

DATES: This final rule is effective July 28, 2000 unless by July 13, 
2000 adverse or critical comments are received. 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: Comments may be mailed to Makeba A. Morris, Chief, Technical 
Assessment Branch, Mailcode 3AP22, Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies 
of the documents relevant to this action are available for public 
inspection during normal business hours at the following locations: Air 
Protection Division, Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103-2029; and the West 
Virginia Division of Environmental Protection, Office of Air Quality, 
7012 MacCorkle Avenue, South East, Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: James B. Topsale at (215) 814-2190, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: This document is divided into Sections I 
through V and answers the questions posed below.

I. General Provisions
    What is EPA approving?
    What is a State/local 111(d)/129 plan?
    What pollutant(s) will this action control?
    What are the expected environmental and public health benefits 
from controlling HMIWI emissions?
II. Federal Requirements the WV HMIWI 111(d)/129 Plan Must Meet for 
Approval
    What general EPA requirements must the WV DEP meet in order to 
receive approval of its HMIWI 111(d)/129 plan?
    What does the WV plan contain?
    Does the WV plan meet all EPA requirements for approval?
III. Requirements for Affected HMIWI Owners/Operators
    How do I determine if my HMIWI is subject to the WV 111(d)/129 
plan?
    What general requirements must I meet under the approved EPA 
111(d)/129 plan?
    What emissions limits must I meet, and in what time frame?
    Are there any operational requirements for my HMIWI and air 
pollution control system?
    What are the testing, monitoring, recordkeeping, and reporting 
requirements for my HMIWI?
    Is there a requirement for obtaining a Title V permit?
IV. Final EPA Action
V. Administrative Requirements

I. General Provisions

    Q. What is EPA approving?
    A. EPA is approving the WV 111(d)/129 plan (the ``plan'') for the 
control of air pollution emissions from hospital/medical/infectious 
waste incinerators (HMIWIs). The plan was developed by the WV DEP. On 
August 18, 1999 the WV DEP submitted its plan to EPA; and on April 19, 
2000 submitted a plan amendment. EPA is publishing this approval action 
without prior proposal because we view this as a noncontroversial 
action and anticipate no adverse comments.
    Q. What is a State/local 111(d)/129 plan?
    A. Section 111(d) of the Clean Air Act (CAA) requires that 
``designated'' pollutants, controlled under standards of performance 
for new stationary sources by Section 111(b) of the CAA, must also be 
controlled at existing sources in the same source category to a level 
stipulated in an emission guidelines (EG) document. Section 129 of the 
CAA specifically addresses solid waste combustion and emissions 
controls based on what is commonly referred to as maximum achievable 
control technology (MACT). Section 129 requires EPA to promulgate a 
MACT-based EG document, and then requires states to develop 111(d)/129 
plans that implement and enforce the EG requirements. The HMIWI EG at 
40 CFR part 60, subpart Ce, establish the MACT requirements under the 
authority of both Sections 111(d) and 129 of the CAA. These 
requirements must be incorporated into a State/local 111(d)/129 plan 
that is ``at least as protective'' as the EG, and is Federally 
enforceable upon approval by EPA.
    The procedures for adoption and submittal of State 111(d)/129 plans 
are codified in 40 CFR part 60, subpart B. Additional information on 
the submittal of State plans is provided in the EPA document, 
``Hospital/Medical/Infectious Waste Incinerator Emission Guidelines: 
Summary of the Requirements for Section 111(d)/129 State Plans, EPA-
456/R-97-007, November, 1997.''
    Q. What pollutant(s) will this action control?
    A. The September 15, 1997 promulgated EG, Subpart Ce, are 
applicable to all existing HMIWIs (i.e., the designated facilities) 
that emit organics (dioxins/furans), carbon monoxide, metals (cadmium, 
lead, mercury, particulate matter), opacity, and acid gases (hydrogen 
chloride, sulfur dioxide, and nitrogen oxides). This action establishes 
emission limitations for each of these pollutants.
    Q. What are the expected environmental and public health benefits 
from controlling HMIWI emissions?
    A. HMIWI emissions can have adverse effects on both public health 
and the environment. Dioxin, lead, and mercury can bioaccumulate in the 
environment. Exposure to dioxins/furans has been linked to reproductive 
and developmental effects, changes in hormone levels, and chloracne. 
Respiratory and other effects are associated with exposure to 
particulate matter, sulfur dioxide, cadmium, hydrogen chloride, and 
mercury. Health effects associated with exposure to cadmium, and lead 
include probable carcinogenic effects. Acid gases contribute to the 
acid rain that lowers the pH of surface waters and watersheds, harms 
forests, and damages buildings.

II. Federal Requirements the West Virginia HMIWI 111(d)/129 Plan 
Must Meet for Approval

    Q. What general requirements must the WV DEP meet to receive 
approval of its WV 111(d)/129 plan?
    A. The plan must meet the requirements of both 40 CFR part 60, 
subparts B, and Ce. Subpart B specifies detailed procedures for the 
adoption and submittal of State plans for

[[Page 37047]]

designated pollutants and facilities. The EG, Subpart Ce, and the 
related new source performance (NSPS), Subpart Ec, contain the 
requirements for the control of designated pollutants, as listed above, 
in accordance with Sections 111(d) and 129 of the CAA. In general, the 
applicable provisions of Subpart Ec relate to compliance and 
performance testing, monitoring, reporting, and recordkeeping. More 
specifically, the WV plan must meet the requirements of (1) 40 CFR part 
60, subpart Ce, Sections 60.30e through 60.39c, and the related Subpart 
Ec provisions; and (2) 40 CFR part 60, subpart B, sections 60.23 
through 26.
    Q. What does the WV plan contain?
    A. Consistent with the requirements of Subparts B, Ce and Ec, the 
WV plan contains the following elements:
    1. A demonstration of West Virginia's legal authority to implement 
the plan;
    2. Identification of the West Virginia enforceable mechanism, rule 
45CSR24 ``To Prevent and Control Emissions from Hospital/Medical/
Infectious Waste Incinerators'';
    3. Source and emission inventories, as required;
    4. Emission limitation requirements that are no less stringent than 
those in Subpart Ce;
    5. A source compliance schedule, including increments of progress, 
as required;
    6. Source testing, monitoring, recordkeeping, and reporting 
requirements;
    7. HMIWI operator training and qualification requirements;
    8. Requirements for development of a Waste Management Plan;
    9. Records of the public hearing on the WV plan;
    10. Provision for the WV DEP submittal to EPA of annual reports on 
progress in plan enforcement; and
    11. A Title V permit application due date.
    On August 3, 1998, the WV DEP filed 45CSR24, ``To Prevent and 
Control Emissions from Hospital/Medical/Infectious Waste Incinerators'' 
with the Legislative Rulemaking Review Committee (LRMC) for its 
recommendation and approval to the 1999 Legislature. Legislative 
approval was received and the regulation became effective on June 1, 
1999. Subsequent regulation amendments, which correct typographical 
errors and clarify the final compliance date, were also approved and 
became effective on May 1, 2000. The regulation applies to existing 
HMIWIs and incorporates by reference (IBR) related and applicable new 
source performance standards, Subpart Ec.
    Q. Does the WV 111(d)/129 plan meet all EPA requirements for 
approval?
    A. Yes. The WV DEP has submitted a plan that conforms to all EPA 
Subpart B and Ce requirements. Each of the above listed plan elements 
is approvable. Details regarding the approvability of the plan elements 
are included in the technical support document (TSD) associated with 
this action. A copy of the TSD is available, upon request, from the EPA 
Regional Office listed in the ADDRESSES section of this document.

III. Requirements Affected HMIWI Owners/Operators Must Meet

    Q. How do I determine if my HMIWI is a designated facility subject 
to the WV 111(d)/129 plan?
    A. If construction commenced on your HMIWI on or before June 20, 
1996, your HMIWI is classified as an existing or designated facility 
that may be subject the plan. The plan contains no lower applicability 
threshold based on incinerator capacity. However, there are designated 
facility exemptions. Those exemptions include incinerators that burn 
only pathological, low level radioactive, and/or chemotherapeutic 
waste; co-fired combustors; incinerators permitted under Section 3005 
of the Solid Waste Disposal Act; municipal waste combustors (MWC) 
subject to EPA's municipal waste combustor rule; pyrolysis units; and 
cement kilns.
    Details regarding applicability and exemptions provisions are 
stipulated in WV regulation 45SCR24 Sec. 3.
    Q. As an affected HMIWI owner/operator, what general requirements 
must I meet under the approved EPA 111(d)/129 plan?
    A. In general, the West Virginia HMIWI regulation establishes the 
following requirements:

 Emission limitations for particulate matter (PM), opacity, 
carbon monoxide (CO), dioxins/furans (CDD/CDF), hydrogen chloride 
(HCl), sulfur dioxide (SO2), nitrogen oxides 
(NOX), lead (Pb), cadmium (Cd), and mercury (Hg)
 Compliance and performance testing
 Operating parameter monitoring
 Operator training and qualification
 Development of a waste management plan
 Source testing, recordkeeping and reporting
 A Title V permit

    A full and comprehensive statement of the above requirements is 
incorporated in the WV DEP regulation 45CSR24.
    Q. What emissions limits must I meet, and in what time frame?
    A. You must install an emissions controls system capable of meeting 
the MACT emission limitations for the pollutants identified above. The 
pollutant emission limitations are stipulated in Table 1 of 45CSR24 
Secs. 4.3.a. and g.; and Secs. 4.4.a, and i.. Compliance is required 
within one year after the effective date of EPA approval of the WV 
111(d)/129 plan. With adequate justification, you may petition the WV 
DEP for a compliance schedule extension that does not extend beyond 
September 15, 2002. Petitions must be submitted no later than nine 
months after the effective date of EPA plan approval. Petitions must 
include documentation of your analysis undertaken to support the need 
for an extension, and your evaluation of the option to transport the 
waste offsite to a commercial medical waste treatment and disposal 
facility on a temporary or permanent basis. Also, your extension 
petition must include increments of progress that are no less stringent 
than those specified in the plan and regulation, 45CSR24 Sec. 7.2.
    Q. Are there any operational requirements for my HMIWI and 
emissions control system?
    A. Yes, there are operational requirements. In summary, the 
operational requirements relate to: (1) The HMIWI and air pollution 
control devices (APCD) operating within certain established parameter 
limits, determined during the initial performance test; (2) the use of 
a trained and qualified HMIWI operator; and (3) the completion of an 
annual update of operation and maintenance information, and its review 
by the HMIWI operators.
    Failure to operate the HMIWI or APCD within certain established 
operating parameter limits constitutes an emissions violation for the 
controlled air pollutants. However, as a HMIWI owner/operator, you are 
provided an opportunity to establish revised operating limits, and 
demonstrate that your facility is meeting the required emission 
limitations, providing a repeat performance test is conducted in a 
timely manner.
    A fully trained and qualified operator must be available at your 
facility during the operation of the HMIWI, or the operator must be 
readily available to the facility within one hour. In order to be 
classified as a qualified operator, you must complete an appropriate 
HMIWI operator training course that meets the Subpart Ec criteria 
referenced in 45CSR24 Secs. 4.3.b and 4.4.b. Compliance must be 
achieved within one year of the effective date of EPA approval of the 
plan. Also, as a HMIWI owner/operator, you are required to develop and 
update

[[Page 37048]]

annually site-specific information regarding your facility's 
operations. Each of your HMIWI operators is required on an annual basis 
to review the updated operational and maintenance information.
    The WV regulation IBR the applicable operational requirements of 
the EG and the related NSPS. See 40 CFR subpart Ec, Secs. 60.56c, 
60.53c, and 60.58c for details regarding these operational 
requirements.
    Q. What are the testing, monitoring, recordkeeping, and reporting 
requirements for my HMIWI?
    A. Testing, monitoring, recordkeeping, and reporting requirements 
are summarized below: You are required to conduct an initial stack test 
to determine compliance with the emission limitations for PM, opacity, 
CO, CDD/CDF, HCl, Pb, Cd, and Hg. As noted above, operating parameter 
limits are monitored and established during the initial performance 
test. Monitored HMIWI operating parameters include, for example, waste 
charge rate, secondary chamber and bypass stack temperatures. APCD 
operating parameters include, for example, CDD/CDF and Hg sorbent 
(e.g., carbon) flow rate, hydrogen chloride sorbent (e.g., lime) flow 
rate, PM control device inlet temperature, pressure drop across the 
control system, and liquid flow rate, including pH. After the initial 
stack test, compliance testing is then required annually to determine 
compliance with the emission limitations for PM, CO, and HCl.
    Recordkeeping and reporting are required in order to document (1) 
the results of the initial and annual performance tests, (2) the 
monitoring of site-specific operating parameters, (3) compliance with 
the operator training and qualification requirements, and (4) the 
development of the waste management plan. Records must be maintained 
for at least five years.
    The WV regulation IBR the applicable testing, monitoring, 
recordkeeping, and reporting requirements of the EG and related NSPS. 
See 40 CFR subpart Ec, Secs. 60.56c, 60.57c, and 60.58c, respectively 
for details regarding these requirements.
    Q. Is there a requirement for obtaining a Title V permit?
    A. Yes, affected facilities are required to submit a complete Title 
V application to the WV DEP no later than September 15, 2000.

IV. Final EPA Action

    The WV 111(d)/129 plan for controlling HMIWI emissions is 
approvable. This approval does not include provisions, such as siting 
and fugitive emission requirements, that relate solely to facilities 
subject to the NSPS, and are not referenced in the EG.
    Based upon the rationale discussed above and in further detail in 
the TSD associated with this action, EPA is approving the WV 111(d)/129 
plan for the control of HMIWI emissions from designated facilities. As 
provided by 40 CFR Sec. 60.28(c), any revisions to the WV plan or 
associated regulations will not be considered part of the applicable 
plan until submitted by the WV DEP in accordance with 40 CFR 
Sec. 60.28(a) or (b), as applicable, and until approved by EPA in 
accordance with 40 CFR part 60, subpart B.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment 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 111(d) plan should 
relevant adverse or critical comments be filed. This rule will be 
effective July 28, 2000 without further notice unless the Agency 
receives relevant adverse comments by July 13, 2000. 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. The EPA will not institute a second 
comment period on this rule. Only parties interested in commenting on 
this rule should do so at this time. If no such comments are received, 
the public is advised that this rule will be effective on July 28, 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 111(d)/129 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 111(d)/129 plan submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/
129 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.).

[[Page 37049]]

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 August 14, 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 approving the West Virginia 111(d)/129 plan 
for HMIWI 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.

    Dated: June 1, 2000.
Bradley M. Campbell,
Regional Administrator, EPA Region III.

    40 CFR part 62, subpart XX, is amended as follows:

PART 62--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart XX--West Virginia

    2. A new center heading and Secs. 62.12150, 62.12151, and 62.12152 
are added to Subpart XX to read as follows:

Emissions From Existing Hospital/Medical/Infectious Waste 
Incinerators (HMIWIs)--SECTION 111(d)/129 Plan


Sec. 62.12150  Identification of plan.

    Section 111(d)/129 plan for HMIWIs and the associated West Virginia 
(WV) Department of Environmental Protection regulations, as submitted 
on August 18, 1999, and as amended on April 19, 2000.


Sec. 62.12151  Identification of sources.

    The plan applies to all existing WV HMIWI for which construction 
was commenced on or before June 20, 1996.


Sec. 62.12152  Effective date.

    The effective date of the plan is July 28, 2000.
[FR Doc. 00-14766 Filed 6-12-00; 8:45 am]
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