2024-16952. Approval and Promulgation of State Plans for Designated Facilities and Pollutants; State of Idaho; Delegation of Authority, Federal Plan for Existing Hospital/Medical/Infectious Waste Incinerators

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Environmental Protection Agency

1. 40 CFR Part 62
2. [EPA-R10-OAR-2023-0553; FRL-11570-01-R10]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving the State of Idaho's request to implement and enforce the Federal Plan Requirements for Hospital/Medical/Infectious Waste Incinerators (HMIWI) Constructed on or before December 1, 2008 (the Federal Plan). The Federal Plan establishes emission limits, monitoring, and other requirements for certain existing HMIWI units. The EPA and the Idaho Department of Environmental Quality (IDEQ) entered into a Memorandum of Agreement (MOA), effective November 7, 2014, documenting the policies, responsibilities, and procedures the IDEQ will follow, as well as the authorities retained by the EPA.

DATES:

This final rule is effective on September 3, 2024.

ADDRESSES:

The EPA has established a docket for this action, identified by Docket ID No. EPA-R10-OAR-2023-0553 at https://www.regulations.gov. All documents cited in this rule or used by the EPA in its analysis of this rulemaking (with the exception of documents containing confidential business information and documents generally available to the public), including the IDEQ's submittal are accessible through the docket. If alternative means of reviewing the documents is required, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Bryan Holtrop, Air and Radiation Division, EPA, Region 10, 1200 Sixth Avenue, Suite 155, M/S 15-H13, Seattle, WA 98101-3144, telephone number: [phone], email address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

Section 129 of the Clean Air Act (the “CAA” or “Act”), titled “Solid Waste Combustion,” requires the EPA to develop and adopt standards for solid waste incineration units pursuant to sections 111(d) and 129 of the Act. The EPA promulgated revisions to the emissions guidelines (EG) for HMIWI units on April 4, 2011 (76 FR 18407), and May 13, 2013 (78 FR 28052), as amended by a correction published on September 6, 2013 (78 FR 54766). Codified at 40 CFR part 60, subpart Ce, this final rule sets limits for nine pollutants under section 129 of the CAA: Cadmium (Cd), carbon monoxide (CO), hydrogen chloride (HCL), lead (Pb), mercury (Hg), nitrogen oxides (NO_X), particulate matter (PM), dioxins/furans, and sulfur dioxide (SO₂). The EG apply to existing HMIWI units, which are those units that commenced construction on or before December 1, 2008, or that commenced modification on or before April 6, 2010 (see 40 CFR 60.32e).

CAA section 129 also requires each state in which HMIWI units are operating to submit a plan to implement and enforce the EG with respect to such units. State plan requirements must be “at least as protective” as the EG and become federally enforceable upon approval by the EPA. The procedures for adoption and submittal of state plans are codified in 40 CFR part 60, subpart B. For each state that does not submit a plan, the EPA is required to develop and implement a Federal Plan within two years following promulgation of the emission guidelines. Accordingly, the EPA promulgated the HMIWI Federal Plan on May 13, 2013 (78 FR 28052). The EPA implementation and enforcement of the Federal Plan is viewed as an interim measure until a state assumes its role as the preferred implementer of the emission guidelines requirements stipulated in the Federal Plan. In the Federal Plan rulemaking, the EPA strongly encouraged each state and local agency in a jurisdiction that did not submit an approvable state plan to request delegation of the HMIWI Federal Plan so that it can have the primary responsibility for implementing and enforcing regulations affecting existing HMIWI units, consistent with the intent of section 129 of the CAA.

II. Submittal and EPA Approval of Requests for Delegation of the Federal Plan

On April 14, 2014, the IDEQ requested delegation of authority from the EPA to implement and enforce the Federal Plan for any existing HMIWI units operating within the State of Idaho, codified at 40 CFR part 62, subpart HHH. The delegation of authority does not apply to sources located in Indian country.

The EPA evaluates requests for delegation of the HMIWI Federal Plan pursuant to the provisions of the HMIWI Federal Plan and the EPA's Delegations Manual. Pursuant to the HMIWI Federal Plan, a state may meet its CAA section 111(d)/129 obligations by submitting an acceptable written request for delegation of the Federal Plan that includes the following elements: (1) a demonstration of adequate resources and legal authority to administer and enforce the Federal Plan; (2) an inventory of affected HMIWI units, an inventory of emissions from affected HMIWI units, and provisions for state progress reports; (3) certification that the state held a hearing on the state delegation request; and (4) a commitment to enter into a MOA with the Regional Administrator that sets forth the terms, conditions, and effective date of the delegation and that serves as the mechanism for the transfer of authority (see 40 CFR 62.14401) (78 FR 28052, May 13, 2013). The IDEQ met delegation requirements (1) through (3) in a letter to the EPA dated April 14, 2014, which is included in the docket for this action, as well as requirement (4), which is addressed in the following paragraphs of this preamble.

Pursuant to the EPA's Delegations Manual, item 7-139, Implementation and Enforcement of 111(d)(2) and 111(d)(2)/129(b)(3) Federal Plans, a copy of which is included in the docket for this action, the Regional Administrator is authorized to delegate authority to implement and enforce section 111(d)/129 Federal Plans to states. The requirements and limitations of a delegation agreement are set forth in item 7-139 of the Delegations Manual. Consistent with those requirements, the EPA prepared an MOA between the EPA and the IDEQ which defines policies, responsibilities, and procedures pursuant to the HMIWI Federal Plan by which the Federal Plan will be administered by the IDEQ. The MOA was signed by the Regional Administrator for EPA Region 10 on October 9, 2014. Subsequently, on November 7, 2014, the Director of the IDEQ signed the MOA, thus agreeing to the terms and conditions of the MOA and accepting responsibility for implementation and enforcement of the policies and procedures of the Federal Plan, except for certain authorities ( e.g., approval of major alternatives to test methods or monitoring) retained by the EPA. The EPA continues to retain enforcement authority. The MOA, and resulting delegation of authority, became effective upon signature by the IDEQ Director on November 7, 2014. The MOA is located in the docket for this action.

The EPA has evaluated the IDEQ submittal for consistency with the CAA, EPA regulations, and EPA policy. The IDEQ has met the requirements for obtaining delegation of authority to implement and enforce the HMWI Federal Plan. The IDEQ entered into a MOA with the EPA and it became effective on November 7, 2014. Accordingly, the EPA is codifying approval of the IDEQ request, dated April 14, 2014, for delegation of authority to implement and enforce the Federal Plan for existing HMIWI units. The EPA will continue to retain certain specific authorities as specified in the HMIWI Federal Plan and as indicated in the MOA ( e.g., authority to approve major alternatives to test methods or monitoring, etc.).

III. EPA Action

In this action, the EPA is notifying the public and is codifying approval of a request submitted by the IDEQ for delegation of authority to implement and enforce the Federal Plan for existing HMIWI units in Idaho, pursuant to 40 CFR part 62, subpart HHH.

IV. Good Cause Finding

Section 553(b) of the Administrative Procedure Act (APA) requires publication of notice of proposed rulemaking and specifies what the notice shall include. See5 U.S.C. 553(b). However, the APA provides an exception from this requirement “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B).

The EPA has found good cause for making this action final without prior proposal and opportunity for comment because this ministerial action merely codifies the EPA's delegation of authority to implement and enforce the HMIWI Federal Plan to the IDEQ. This action does not alter the universe of sources regulated under the Federal Plan, which was previously subject to the IDEQ's State plan implementing the HMIWI EG and is now subject to functionally identical requirements contained in the Federal Plan. In other words, this action does not substantively alter the regulatory requirements applicable to HMIWI units residing within the IDEQ's jurisdiction. In these circumstances, notice and comment procedures are unnecessary.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator has the authority to delegate the authority to implement a 111(d)/129 Federal Plan that complies with the provisions of the CAA and applicable Federal regulations (see 40 CFR 60.27). In reviewing 111(d)/129 Federal Plan delegation requests, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA and of the EPA's implementing regulations. Accordingly, this action merely codifies in the Code of Federal Regulations the EPA's delegation of authority to implement the Federal Plan and does not impose additional requirements beyond those imposed by the already-applicable Federal Plan. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject toExecutive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• 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 Clean Air Act.

In addition, the delegation of authority is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The IDEQ did not evaluate environmental justice considerations as part of its submittal; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action is subject to the Congressional Review Act and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 1, 2024. 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. 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
• Air pollution control
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Waste treatment and disposal

Dated: July 25, 2024.

Casey Sixkiller,

Regional Administrator, Region 10.

For the reasons set forth in the preamble, 40 CFR part 62 is amended as follows:

PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS

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

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

Subpart N—Idaho

2. Add an undesignated center heading immediately before § 62.3110 and revise § 62.3110 to read as follows:

Air Emissions from Hospital/Medical/Infectious Waste Incinerators (HMIWI)—Section 111(d)/129 Plan

§ 62.3110

Identification of plan—Idaho Department of Environmental Quality.

(a) Delegation of authority. On October 9, 2014, and November 7, 2014, the EPA and the IDEQ, respectively, signed a Memorandum of Agreement (MOA) that defines policies, responsibilities, and procedures pursuant to subpart HHH of this part (the “Federal Plan”) by which the Federal Plan will be administered by the Idaho Department of Environmental Quality (IDEQ).

(b) Identification of sources. The MOA and related Federal Plan apply 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, 2010.

(c) Effective date of delegation. The delegation became fully effective on November 7, 2014, the effective date of the MOA between the EPA and the IDEQ.