[Federal Register Volume 63, Number 223 (Thursday, November 19, 1998)]
[Rules and Regulations]
[Pages 64188-64191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30847]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA 67-7142a; FRL--6188-1]
Approval and Promulgation of Implementation Plans: Washington
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Environmental Protection Agency (EPA) approves a minor
revision to the State Implementation Plan (SIP) for Washington.
Pursuant to section 110 (a) of the Clean Air Act (CAA), the Washington
Department of Ecology (WDOE) submitted a request dated January 8, 1998,
to EPA to revise the SIP and include a variance to a permit issued by a
local air pollution control agency, the Puget Sound Air Pollution
Control Agency (PSAPCA), to the U.S. Army for the operation of three
heat recovery incinerators located at Fort Lewis.
DATES: This action is effective on January 19, 1999 without further
notice, unless EPA receives adverse comment by December 21, 1998. 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.
[[Page 64189]]
ADDRESSES: Written comments should be addressed to: Ms. Montel
Livingston, SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200
Sixth Avenue, Seattle, Washington 98101.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW, Washington,
D.C. 20460. Copies of material submitted to EPA may be examined during
normal business hours at the following locations: EPA Region 10, Office
of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 98101,
and WDOE, P.O. box 47600, Olympia, Washington 98504.
FOR FURTHER INFORMATION CONTACT: Mahbubul Islam, Office of Air Quality
(OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101,
(206) 553-6985.
SUPPLEMENTARY INFORMATION:
I. Background
WDOE submitted a revision of the Washington SIP to EPA dated
January 8, 1998 consisting of a minor amendment to PSAPCA Regulations
I, Article 3, Section 3.23, Alternate Means of Compliance, (new)
Subsection NOC#7216.
The U.S. Army has requested a variance to a permit issued by the
PSAPCA for the operation of three heat recovery incinerators located at
Fort Lewis. Through the permit approval process, PSAPCA determined that
the incinerators employed the best available control technology (BACT)
and the toxic air contaminants would not exceed acceptable source
impact levels. The permit required the facility to meet emission limits
specified in EPA guidance and use good combustion practices to minimize
emissions of hazardous air pollutants (HAPs). Fort Lewis performed
source testing of the three incinerator units and demonstrated their
ability to meet the permit emission limits. However, the heat recovery
incinerators cannot comply with the residence time requirements in the
WDOE solid waste incinerator rule (WAC 173-434-160). The intent of the
residence time design requirement is to assure adequate control of
emissions without requiring extensive testing. Fort Lewis requested a
variance from the residence time requirements, and will instead
demonstrate compliance through annual source testing as specified in
the permit.
II. Summary of Action
EPA is, by today's action, approving a permit variance issued to
the U.S. Army, operator and owner of three heat recovery incinerators
at Fort Lewis. PSAPCA held a public hearing on this variance request on
December 1, 1997 at Fort Lewis. In addition, after a thirty day comment
period, the Board of Directors of PSAPCA and WDOE held public hearings
on December 11, 1997. No public comment was received during the comment
period.
The U.S. Army requests that three heat recovery incinerators at
Fort Lewis be granted a variance to WAC 173-434 160(2), requiring a one
second residence time at 1800 deg. F for all combustion gases after the
last over fire air port. Due to the limited size of the incinerator
firebox, the volume of airflow at design temperatures does not allow a
residence time of one second. In order to comply with the residence
time requirement, major structural modifications need to be made. The
U.S. Army estimated that such a change to the incinerator building
would cost in excess of $5 million. Such an additional cost burden on
the American taxpayer is unwarranted since all air emission standards
will be met by alternative means and there is no environmental or
public health hazard caused by non-compliance with the one second
residence time rule.
The residence time requirement is intended to minimize the
formation of Dioxin during the initial combustion of refuse. This
regulation was enacted before the carbon injection became the control
method to minimize Dioxin emissions from incinerators. The Fort Lewis
incinerator injects powder activated carbon into the flue gases to
remove Dioxin from the stack gases. Source testings at Fort Lewis
incinerators show that their dioxin emissions to the atmosphere are
well below acceptable limits specified in the permit. Fort Lewis will
conduct annual emission testings to ensure that they meet the permit
requirements and protect human health and environment.
This variance is requested for one year, during which time a
permanent solution will be sought. Fort Lewis will cooperate with WDOE
during the rule making process to revise the incinerator rule so that
it allows demonstrating compliance with the intent of the regulation
(control of HAPs) through alternative mechanisms.
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 19, 1999
without further notice unless the Agency receives adverse comments by
December 21, 1998.
If the EPA receives such comments, then EPA will publish a notice
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. 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 19, 1999 and no
further action will be taken on the proposed rule.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
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 Office
of Management and Budget 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 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.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997),
[[Page 64190]]
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 does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects 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. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop
an effective process permitting elected 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
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP 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.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
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 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
pre-existing requirements under State or local 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 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).
H. 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 January 19, 1999. 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 in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference.
Dated: November 3, 1998.
Jane S. Moore,
Acting Regional Administrator, Region X.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart WW--Washington
2. Section 52.2470 is amended by adding paragraph (c)(78) to read
as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(78) EPA approves a minor revision to the SIP dated January 8, 1998
to include a variance to a permit issued to the U.S. Army for the
operation of three heat recovery incinerators located at Fort Lewis by
local air pollution control agency, the Puget Sound Air Pollution
Control Agency.
(i) Incorporation by reference.
[[Page 64191]]
(A) Puget Sound Air Pollution Control Agency, Notice of
Construction No. 7216, Date: Nov 25, 1997.
[FR Doc. 98-30847 Filed 11-18-98; 8:45 am]
BILLING CODE 6560-50-P
