2011-33151. 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 Facilities

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: [e-mail].

3. Fax: [phone].

4. Mail: EPA-R04-OAR-2011-0006, Daniel Garver, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303.

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 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 holidays.

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 [phone]. Mr. Garver can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

II. Review of Florida's Municipal Waste Combustor (MWC) Plan Revision

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 Plan

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 (F.A.C.) 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 approval.

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, requirements.

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.

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. 804(2).

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:

PART 62—[AMENDED]

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:

§ 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, 2010.

(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.