Approval and Promulgation of Implementation Plans: Washington

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.

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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]

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