[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 80777-80780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33151]



40 CFR Part 62

[EPA-R04-OAR-2011-0006(a); FRL- 9611-8]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: EPA is approving the Clean Air Act (CAA) section 111(d)/129 
state plan (the Plan) submitted by the Florida Department of 
Environmental Protection (FDEP) for the State of Florida on December 
21, 2010, for implementing and enforcing the Emissions Guidelines (EGs) 
applicable to existing Hospital/Medical/Infectious Waste Incinerators 
(HMIWIs). These EGs apply to devices that combust any amount of 
hospital waste and/or medical/infectious waste.

DATES: This direct final rule is effective February 27, 2012 without 
further notice, unless EPA receives adverse comment by January 26, 
2012. 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-
R04-OAR-2011-0006 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9095.
    4. Mail: EPA-R04-OAR-2011-0006, Daniel Garver, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
    5. Hand Delivery or Courier: Mr. Daniel Garver, Air Toxics 
Assessment and Implementation Section, Air Toxics and Monitoring 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Such

[[Page 80778]]

deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal 
    Instructions: Direct your comments to Docket ID Number EPA-R04-OAR-
2011-0006. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at 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 www.regulations.gov or email. The 
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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
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 www.regulations.gov or 
in hard copy at the Air Toxics Assessment and Implementation Section, 
Air Toxics and Monitoring Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Garver, Air Toxics Assessment 
and Implementation Section, Air Toxics and Monitoring Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-9839. Mr. Garver can also 
be reached via electronic mail at [email protected].


I. Background
II. Review of Florida's Municipal Waste Combustor (MWC) Plan 
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Section 129(a)(5) of the CAA requires EPA to conduct a 5-year 
review of the solid waste incinerator new source performance standards 
(NSPS) and EGs and revise both, as appropriate. On October 6, 2009, EPA 
took final action in the Federal Register to revise HMIWI rules under 
sections 111 and 129 of the CAA. See 74 FR 51368. This revision was 
made pursuant to the U.S. Court of Appeals for the District of Columbia 
Circuit decision which remanded EPA's previous HMIWI regulations, and 
required that EPA provide further explanation to justify EPA's 
determination on the minimum regulatory ``floors'' for new and existing 
HMIWI. The October 6, 2009 revision also satisfies the CAA Section 
129(a)(5) requirement to conduct a review of the standards every 5 
years. Section 129(b)(2) of the CAA requires states to submit to EPA 
for approval state plans and revisions that implement and enforce the 
amended EGs, in this case, 40 CFR part 60, subpart Ce. State plans and 
revisions must be at least as protective as the EGs, and become 
federally enforceable as a section 111(d)/129 plan revision upon 
approval by EPA. The procedures for adoption and submittal of state 
plans and revisions are codified in 40 CFR part 60, subpart B.

II. Review of Florida's MWC Plan Revision

    The required Florida 111(d)/129 Plan revision was submitted by FDEP 
to EPA on December 21, 2010. EPA has reviewed the plan revision for 
existing HMIWI units in the context of the requirements of 40 CFR part 
60, and subparts B and Ce, as amended. State plans must include the 
following nine essential elements: (1) Identification of legal 
authority, (2) identification of mechanism for implementation, (3) 
inventory of affected facilities, (4) emissions inventory, (5) 
emissions limits, (6) compliance schedules, (7) testing, monitoring, 
recordkeeping, and reporting, (8) public hearing records, and (9) 
annual state progress reports on facility compliance.

A. Identification of Legal Authority

    Federal regulations found at 40 CFR 60.26 require the plan to 
demonstrate that the State has legal authority to adopt and implement 
the emission standards and compliance schedules. FDEP has demonstrated 
that it has the legal authority to adopt and implement the emission 
standards and compliance governing MWC emissions. FDEP's legal 
authority is derived from state law found at Florida Statutes (F.S.) 
Sec. 403.031 (Definitions), F.S. Sec. 403.061 (Department powers and 
duties), F.S. Sec. 403.0872 (Title V air operating permits), and F.S. 
Sec. 403.8055 (Authority to adopt federal standards by reference). F.S. 
Subsections 403.061(6), (7), (8), and (13) give the authority for 
obtaining information and for requiring recordkeeping, and use of 
monitors. F.S. Subsection 403.061(35) gives the department authority to 
exercise the duties, powers, and responsibilities required of the State 
under the CAA. The sections of the Florida Statutes that give authority 
for compliance and enforcement authority are F.S. Sec. 403.121 
(Judicial and administrative remedies), F.S. Sec. 403.131 (Injunctive 
relief), F.S. Sec. 403.141 (Civil remedies), and F.S. Sec. 403.161 
(Civil and criminal penalties). Finally, F.S. Sec. 119.07 is the 
authority for making the information available to the public. 
Furthermore, FDEP has submitted and EPA has approved a previous Florida 
111(d)/129 Plan for HMIWIs that demonstrate the required legal 
authority (40 CFR 62.2370). Therefore, the Plan meets the requirements 
of 40 CFR 60.26.

B. Identification of Enforceable State Mechanisms for Implementing the 

    The subpart B provision at 40 CFR 60.24(a) requires that state 
plans include emissions standards, defined 40 CFR 60.21(f) as ``a 
legally enforceable regulation setting forth an allowable rate of 
emissions into the atmosphere, or prescribing equipment specifications 
for control of air pollution emissions.'' Florida Administrative Code 

[[Page 80779]]

Chapter 62-204.800, ``Federal Regulations Adopted by Reference'' has 
been amended to incorporate revisions to subpart Cb. These amendments 
to F.A.C. Rule 62-204.800(8) and (9), for Standards of Performance for 
New Stationary Sources and Emission Guidelines and Compliance Times, 
respectively, were proposed on October 8, 2010, and became effective on 
December 30, 2010. These rules meet the requirement of 40 CFR 60.24(a) 
to have a legally enforceable emission standard.

C. Inventory of Affected MWC Units

    Federal regulations found at 40 CFR 60.25(a) require each state 
plan to include a complete source inventory of all HMIWI units. FDEP 
has identified ten (10) affected facilities. An affected facility is 
not exempt from applicable sections 111(d)/129 requirements because it 
is not listed in the inventory compiled by FDEP. The affected 
facilities identified by FDEP are shown in the table below:

              Facility name                            County
Boca Raton Community Hospital............  Palm Beach.
Bethesda Memorial Hospital...............  Palm Beach.
Malcom Randall VA Medical Center.........  Alachua.
Memorial Regional Hospital...............  Broward.
Lakeland Regional Medical Center.........  Polk.
Stericycle, Inc..........................  Orange.
Holy Cross Hospital......................  Broward.
Curtis Bay Energy Southeast..............  Pinellas.
St. Joseph's Hospital....................  Hillsborough.
VA Medical Center........................  Miami/Dade.

D. Inventory of Emissions From Affected MWC Units

    Federal regulations found at 40 CFR 60.25(a) require that each 
state plan include an emissions inventory that estimates emissions of 
the pollutant regulated by the EGs. Emissions from HMIWI units contain 
organics (dioxins/furans), metals (cadmium, lead, mercury, particulate 
matter, opacity), and acid gases (hydrogen chloride, sulfur dioxide, 
and nitrogen oxides). FDEP submitted an emissions inventory of HMIWI 
units as part of its state plan. This emissions inventory contains 
HMIWI unit emissions rates for each regulated pollutant for each 
designated facility based on the most recent stack test data. This 
meets the emission inventory requirements of 40 CFR 60.25(a).

E. Emissions Limitations for HMIWI Units

    Federal regulations found at 40 CFR 60.24(c) specify that the state 
plan or revision must include emission standards that are no less 
stringent than the EGs, except as specified in 40 CFR 60.24(f), which 
allows for less stringent emission limitations on a case-by-case basis 
if certain conditions are met. This exception clause is superseded by 
section 129(b)(2) of the CAA, which requires that state plans be ``at 
least as protective'' as the EGs. F.A.C. Rule 62-204.800(9)(g)3.a. and 
b. specifically adopts by reference the EGs contained in 40 CFR part 60 
subpart Ce. Since the emissions standards are adopted by reference, the 
emission standards in the state plan are ``at least as protective'' as 
those in subpart Ce, as amended.

F. Compliance Schedules

    Federal regulations found at 40 CFR 60.24(c) and (e), require that 
each state plan must include an expeditious compliance schedule that 
owners and operators of affected MWC units must meet in order to comply 
with the requirements of the plan. F.A.C. Rule 62-204.800(9)(g)9., 
contains compliance times for HMIWI units. The Plan requires that all 
existing HMWI units comply with the requirements of the plan by June 1, 
2012, unless the unit complies with the alternate schedule found at 40 
CFR 60.39e(c). The Plan revision meets applicable Federal requirements 
for compliance schedules.

G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), 
stipulate facility testing, monitoring, recordkeeping and reporting 
requirements for state plans. F.A.C. Rules 62-204.800(9)(g)7.a. and b., 
and 62-204.800(9)(g)8.a. and b., adopt by reference the performance 
testing and monitoring, and reporting and recordkeeping requirements 
found at 40 CFR 60.37e and 60.38e, respectively. The Plan revision 
meets applicable Federal requirements for testing, monitoring, 
recordkeeping, and reporting requirements.

H. A Record of Public Hearing on the State Plan Revision

    FDEP published a notice of opportunity to submit public comments or 
request a public hearing on the state plan revision on October 22, 
2010. No comments were received, and a public hearing was not 
requested. Applicable portions of F.A.C. Chapter 62-204.800 amendments 
became effective on December 30, 2010. FDEP provided evidence of 
complying with public notice and other hearing requirements. FDEP also 
certified that ``the public notice and hearing requirements of all 
applicable state and federal regulations have been satisfied.'' FDEP 
has met the requirement of 40 CFR 60.23 for a public hearing.

I. Annual State Progress Reports to EPA

    FDEP must submit to EPA on an annual basis a report which details 
the progress in the enforcement of the plan in accordance with 40 CFR 
60.25(e) and (f). Accordingly, FDEP will submit annual reports on 
progress in plan enforcement to EPA on an annual (calendar) basis, 
commencing with the first full report period after plan revision 

III. Final Action

    Based upon the rationale discussed above, EPA is approving the Plan 
revision and related F.A.C. Rule 62-204.800(9) amendments, as adopted 
by Florida on October 8, 2010. This approval excludes certain 
authorities retained by EPA, as stated in 40 CFR 60.50c(i). As required 
by 40 CFR 60.28(c), any revisions to the Plan or supporting regulations 
will not be considered part of the applicable plan until submitted by 
FDEP in accordance with 40 CFR 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 rule 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, subpart Ce 
and related subpart Ec. 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 section 111(d)/
129 Plan revision should relevant adverse or critical comments be 
filed. This rule will be effective January 26, 2012 without further 
notice unless EPA receives adverse comments by January 26, 2012. If EPA 
receives adverse comments, 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. If no such comments are received, the public is advised 
that this rule will be effective on February 27, 2012 and no further 
action will be taken on the proposed rule.

[[Page 80780]]

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/
129 plan submission that complies with the provisions of the CAA and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
111(d)/129 Plan is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

    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 action 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. 
    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 February 27, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 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: November 21, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

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


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

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

Subpart K--Florida

2. Section 62.2370 is revised to read as follows:

Sec.  62.2370  Identification of sources.

    (a) The plan applies to existing hospital/medical/infectious waste 
incinerators for which construction was commenced on or before December 
1, 2008, or for which modification was commenced on or before April 6, 
    (b) On December 21, 2010, Florida submitted a revised state plan 
and related Florida Administrative Code amendments as required by 40 
CFR part 60, subpart Ce, amended on October 6, 2009.

[FR Doc. 2011-33151 Filed 12-23-11; 8:45 am]