[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Rules and Regulations]
[Pages 38346-38348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18482]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2009-0463; FRL-8938-8]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, West Virginia; Control of 
Emissions From Hospital/Medical/Infectious Waste Incinerator Units, 
Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
West Virginia (WV) hospital/medical/infectious waste incinerator 
(HMIWI) 111(d)/129 plan (the ``plan''). The revision contains a 
modified WV Department of Environmental Protection, Division of Air 
Quality (DAQ) rule that streamlines the State's regulatory structure 
(WV45CSR6, 18, and 24) for incinerator units and incorporates 
applicable Clean Air Act (CAA), section 129, requirements into one 
rule, WV45CSR18. This approval action relates only to HMIWI units. The 
streamlining of the State's regulatory structure of its incinerator 
rules is not an EPA requirement.

DATES: This rule is effective October 2, 2009 without further notice, 
unless EPA receives adverse written comment by September 2, 2009. If 
EPA receives such comments, it 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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0463 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: E-mail: http://[email protected].
    C. Mail: EPA-R03-OAR-2009-0463, Walter Wilkie, Chief, Air Quality 
Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and

[[Page 38347]]

special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2009-0463. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the 
State submittal are available at the West Virginia Division of Air 
Quality, 601 57th Street, SE., Charleston, West Virginia 25304.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    The initial West Virginia HMIWI plan was approved by EPA in the 
June 13, 2000 edition of the Federal Register. (65 FR 37046). The plan 
approval is codified in 40 CFR Part 62, subpart XX. On May 11, 2009, 
the West Virginia Department of Environmental Protection submitted to 
EPA a formal 111(d)/129 plan revision for HMIWI units. The submitted 
plan revision is part of an effort to streamline and consolidate DAQ's 
Clean Air Act, section 129, requirements for commercial industrial 
solid waste incinerator (CISWI) and HMIWI units. All applicable section 
129 incinerator regulatory requirements are now in one State rule, 
WV45CSR18. However, this approval action relates only to HMIWI units. A 
related plan revision for CISWI units will be addressed in a separate 
Federal Register notice and rulemaking action. The consolidation of the 
DAQ incinerator rules into one is not an EPA requirement.
    Section 129 of the CAA regulates a mixture of air pollutants. These 
pollutants include organics (dioxins/furans), carbon monoxide, metals 
(cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur 
dioxide, and nitrogen oxides) and particulate matter (including 
opacity).

II. Review of West Virginia's HMIWI Plan Revision

    EPA has reviewed the West Virginia HMIWI plan revision submittal in 
the context of the requirements of 40 CFR Part 60, subparts B and Ce; 
and Part 62, subpart A. The submitted plan revision meets all the cited 
requirements and those as described in EPA's original approval of West 
Virginia's plan approval on June 13, 2000. (65 FR 37046).

III. Final Action

    EPA is approving the West Virginia HMIWI plan revision that 
streamlines and consolidates its section 111(d)/129 existing 
incinerator regulations into one rule, WV45CSR18. Therefore, EPA is 
amending 40 CFR Part 62, subpart XX, to reflect this action. This 
approval is based on the rationale discussed above and in further 
detail in the technical support document (TSD) associated with this 
action. This plan revision approval does not negate or void any of the 
initial plan approval requirements (65 FR 37046), including compliance 
dates for any affected facility. The scope of this plan revision 
approval is limited to the provisions of 40 CFR Parts 60 and 62 for 
existing HMIWI units, as referenced in the emission guidelines, subpart 
Ce, and the related new source performance standard, subpart Ec. CISWI 
and other types of section 129 incinerator rule requirements are not 
included in the scope of this approval action.
    The EPA Administrator continues to retain authority for several 
tasks, as cited in State rule WV45CSR18, Sec.  45-18-9. This retention 
of Federal authority also includes the granting of waivers for initial 
and annual compliance testing requirements.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirement for State air pollution control agencies and existing HMIWI 
units that are subject to the provisions of 40 CFR Part 60, subparts B 
and Ce, respectively. 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)/129 plan revision 
should relevant adverse or critical comments be filed. This rule will 
be effective October 2, 2009 without further notice unless the Agency 
receives relevant adverse comments by September 2, 2009. If EPA 
receives such comments, then EPA will publish a timely withdrawal in 
the Federal Register informing the public that the rule did not take 
effect. EPA will address all public comments in a subsequent final rule 
based on the proposed rule. The EPA will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.

IV. Statutory and Executive Order Reviews

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. For this 
reason, 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). 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

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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 (Pub. L. 104-4). 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). 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 requirement, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. 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 approves a State rule implementing a Federal standard. In reviewing 
section 111(d)/129 plan 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 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 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. 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 October 2, 2009. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action, approving the submitted West Virginia HMIWI 
plan revision, 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, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: July 21, 2009.
William C. Early,
Acting Regional Administrator, Region III.

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40 CFR Part 62, Subpart XX, is amended as follows:

PART 62--[AMENDED]

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

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

Subpart XX--West Virginia

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2. Section 62.12150 is amended by designating the existing paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:


Sec.  62.12150  Identification of plan.

* * * * *
    (b) On May 11, 2009, the West Virginia Department of Environmental 
Protection submitted a State plan revision (1) that 
consolidates all existing section 111(d)/129 incinerator regulatory 
requirements into one modified rule, WV45CSR18.

0
3. Section 62.12152 is amended by designating the existing paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:


Sec.  61.12152  Effective date.

* * * * *
    (b) Plan revision 1 is effective October 2, 2009.

[FR Doc. E9-18482 Filed 7-31-09; 8:45 am]
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