00-10761. Approval and Promulgation of State Plans for Designated Facilities and Pollutants: Oklahoma

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

We are approving the section 111(d) Plan submitted by the Oklahoma Department of Environmental Quality (ODEQ) on November 17, 1999, to implement and enforce the Emissions Guidelines (EG) for existing Hospital/Medical/Infectious Waste Incinerators (MWI). The EG require States to develop plans to reduce toxic air emissions from all MWIs.

DATES:

This direct final rule is effective on July 3, 2000, without further notice, unless we receive adverse comments by June 1, 2000. If we receive adverse comments, we 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:

You should address comments on this action to Lt. Commander Mick Cote, EPA Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202.

Copies of all materials considered in this rulemaking may be examined during normal business hours at the following locations: EPA Region 6 offices, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202, and at the Oklahoma Department of Environmental Quality offices, 707 North Robinson, Oklahoma City, Oklahoma 73101-1677.

FOR FURTHER INFORMATION CONTACT:

Lt. Commander Mick Cote at [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is being taken by EPA today?

II Why do we need to regulate air emissions from MWIs?

III. What is a State Plan?

IV. What does the Oklahoma State Plan contain?

V. Is my MWI subject to these regulations?

VI. What steps do I need to take?

VII. Administrative Requirements.

I. What Action Is Being Taken by EPA Today?

We are approving the Oklahoma State Plan, as submitted on November 17, 1999, for the control of air emissions from MWIs, except for those MWIs located in Indian Country. When we developed our New Source Performance Standard (NSPS) for MWIs, we also developed EG to control air emissions from older MWIs. See 62 FR 48348-48391, September 15, 1997. The ODEQ developed a State Plan, as required by section 111(d) of the Clean Air Act (the Act), to adopt the EG into their body of regulations, and we are acting today to approve it.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in a separate document in this Federal Register publication, we are proposing to approve the revision should significant, material, and adverse comments be filed. This action is effective July 3, 2000, unless by June 1, 2000, adverse or critical comments are received. If we receive such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will be addressed in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, this action is effective July 3, 2000.

II. Why Do We Need To Regulate MWI Emissions?

When burned, hospital waste and medical/infectious waste emit various air pollutants, including hydrochloric acid, dioxin/furan, and toxic metals (lead, cadmium, and mercury). Mercury is highly hazardous and is of particular concern because it persists in the environment and bioaccumulates through the food web. Serious developmental and adult effects in humans, primarily damage to the nervous system, have been associated with exposures to mercury. Harmful effects in wildlife have also been reported; these include nervous system damage and behavioral and reproductive deficits. Human and wildlife exposure to mercury occurs mainly through the ingestion of fish. When inhaled, mercury vapor attacks the lung tissue and is a cumulative poison. Short-term exposure to mercury in certain forms can cause hallucinations and impair consciousness. Long-term exposure to mercury in certain forms can affect the central nervous system and cause kidney damage.

Exposure to particulate matter has been linked with adverse health effects, including aggravation of existing respiratory and cardiovascular disease and increased risk of premature death. Hydrochloric acid is a clear colorless gas. Chronic exposure to hydrochloric acid has been reported to cause gastritis, chronic bronchitis, dermatitis, and photosensitization. Acute exposure to high levels of chlorine in humans may result in chest pain, vomiting, toxic pneumonitis, pulmonary edema, and death. At lower levels, chlorine is a potent irritant to the eyes, the upper respiratory tract, and lungs.

Exposure to dioxin and furan can cause skin disorders, cancer, and reproductive effects such as endometriosis. These pollutants can also affect the immune system. We estimate that this State Plan will reduce mercury emissions from MWIs in Oklahoma by approximately 94 percent, hydrochloric acid emissions by 98 percent, and dioxin/furan emissions by 95 percent.

III. What Is a State Plan?

Section 111(d) of the Act requires that pollutants controlled under the NSPS must also be controlled at older sources in the same source category. Once an NSPS is promulgated, we then publish an EG applicable to the control of the same pollutant from existing (designated) facilities. States with designated facilities must then develop a State Plan to adopt the EG into their body of regulations. States must also include in this State Plan other elements, such as inventories, legal authority, and public participation documentation, to demonstrate the ability to enforce it.

IV. What Does the Oklahoma State Plan Contain?

The ODEQ adopted the EG into its body of regulations at OAC 252:100-17, Part 7 and Appendix M on October 19, 1999. The Oklahoma State Plan contains:

1. A demonstration of the State's legal authority to implement the section 111(d) State Plan;

2. State Rule OAC 252:100-17, Part 7 and Appendix M as the enforceable mechanism;

3. An inventory of approximately 33 known designated facilities, along with estimates of their toxic air emissions;

4. Emission limits that are as protective as the EG;

5. A compliance date no later than September 16, 2002;

6. Testing, monitoring, reporting and recordkeeping requirements for the designated facilities;

7. Records from the public hearing; and,

8. Provisions for progress reports to EPA.

The Oklahoma State Plan was reviewed for approval against the following criteria: 40 CFR 60.23 through 60.26, Subpart B—Adoption and Submittal of State Plans for Designated Facilities; and, 40 CFR 60, 60.30e through 60.39e, Subpart Ce—Emission Guidelines and Compliance Times for Hospital/Medical/Infectious Waste Incinerators. A detailed discussion of our evaluation of the Oklahoma State Plan is included in our technical support document, located in the official file for this action.

V. Is My MWI Subject to These Regulations?

The EG for existing MWIs affect any MWI built on or before June 20, 1996. If your facility meets this criterion, you are subject to these regulations.

VI. What Steps Do I Need To Take?

You must meet the requirements in OAC 252:100-17, Part 7 and Appendix M, summarized as follows:

1. Determine the size of your incinerator by establishing its maximum design capacity; as an alternative, you can elect to accept a permit restriction to limit the amount of waste you may burn per hour.

2. Each size category of MWI has certain emission limits established which your incinerator must meet. See Table 1 of 40 CFR part 60, subpart Ce to determine the specific emission limits which apply to you. The emission limits apply at all times, except during startup, shutdown, or malfunctions, provided that no waste has been charged during these events. See 40 CFR 60.33e, as listed at 62 FR 48382, September 15, 1997.

3. There are provisions to address small rural incinerators. See 40 CFR 60.33e(b), 60.36e, 60.37e(c)(d), and 60.38e(b), as listed at 62 FR 48380, September 15, 1997.

4. You must meet a 10 percent opacity limit on your discharge, averaged over a six-minute block. See 40 CFR 60.33e(c), as listed at 62 FR 48380, September 15, 1997.

5. You must have a qualified MWI operator available to supervise the operation of your incinerator. This operator must be trained and qualified through a State-approved program, or a training program that meets the requirements listed under 40 CFR part 60.53c(c). See 40 CFR 60.34e, as listed at 62 FR 48380.

6. Your operator must be certified, as discussed in 4 above, no later than one year after we approve this Oklahoma State Plan. See 40 CFR 60.39e(e), as listed at 62 FR 48382. You must develop and submit to ODEQ a waste management plan. This plan must be developed under guidance provided by the American Hospital Association publication, An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities, 1993, and must be submitted to ODEQ no later than one year after we approve this State Plan. See 40 CFR 60.35e, as listed at 62 FR 48380.

7. You must conduct an initial performance test to determine your incinerators compliance with these emission limits. See 40 CFR 60.37e and 60.8, as listed at 62 FR 48380.

8. You must install and maintain devices to monitor the parameters listed under Table 3 to Subpart Ec. See 40 CFR 60.37e(c), as listed at 62 FR 48381.

9. You must document and maintain information concerning pollutant concentrations, opacity measurements, charge rates, and other operational data. This information must be maintained for a period of five years. See 40 CFR 60.38e, as listed at 62 FR 48381.

10. You must report to ODEQ the results of your initial performance test, the values for your site-specific operating parameters, and your waste management plan. This information must be reported within 60 days following your initial performance test, and must be signed by the facilities manager. See 40 CFR 60.38e, as listed at 62 FR 48381.

11. In general, you must comply with all the requirements of this State Plan within one year after we approve it; however, there are provisions to extend your compliance date. See 40 CFR 60.39e, as listed at 62 FR 48381.

VII. Administrative Requirements

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. 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 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 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will 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), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing Plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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 Plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a Plan submission, to use VCS in place of a Plan submission that otherwise satisfies the provisions of the Clean Air Act. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 July 3, 2000. 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 62

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Hospital/medical/infectious waste incineration
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: March 31, 2000.

Jerry Clifford,

Acting Regional Administrator Region 6.

40 CFR part 62 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. 7401-7617q.

Subpart LL—Oklahoma

2. Section 62.9100 is amended by adding paragraphs (b)(5), (c)(4), and (c)(5) to read as follows:

§ 62.9100

Identification of plan.

* * * * *

(b) * * *

(5) Control of air emissions from designated hazardous/medical/infectious waste incinerators, submitted by the Oklahoma Department of Environmental Quality on November 17, 1999 (OAC 252:100-17, Part 7).

* * * * *

(c) * * *

(4) Municipal solid waste landfills.

(5) Hazardous/medical/infectious waste incinerators.

3. Subpart LL is amended by adding a new § 62.9170 and a new undesignated center heading to read as follows:

Air Emissions From Hazardous/Medical/Infectious Waste Incinerators

§ 62.9170

Identification of sources.

The plan applies to existing hazardous/medical/infectious waste incinerators for which construction, reconstruction, or modification was commenced before June 20, 1996, as described in 40 CFR part 60, subpart Ce.

4. Subpart LL is amended by adding a new § 62.9171 and a new undesignated center heading to read as follows:

Effective Date

§ 62.9171

Effective date.

The effective date for the portion of the plan applicable to existing hazardous/medical/infectious waste incinerators is July 3, 2000.