Approval and Promulgation of State Plans for Designated Facilities and Pollutants; North Dakota; Control of Emissions From Existing Hazardous/Medical/Infectious Waste Incinerators

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[FRL-6340-6]

Approval and Promulgation of State Plans for Designated

Facilities and Pollutants; North Dakota; Control of Emissions From

Existing Hazardous/Medical/Infectious Waste Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: We are approving the section 111(d) Plan submitted by the

North Dakota Department of Health on October 6, 1998, to implement and

enforce the Emissions Guidelines (EG) for existing Hazardous/Medical/

Infectious Waste Incinerators (HMIWI). The EG require States to develop

plans to reduce toxic air emissions from all HMIWIs.

DATES: This direct final rule is effective on July 12, 1999, without

further notice, unless we receive adverse comments by June 14, 1999. 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 Richard R.

Long, EPA Region 8, Office of Air and Radiation (8P-AR), 999 18th

Street, Suite 500, Denver, Colorado 80202. Copies of all materials

considered in this rulemaking may be examined during normal business

hours at the following locations: EPA Region 8 offices, 999 18th

Street, Suite 500, Denver, Colorado 80202, and at the North Dakota

Department of Health offices, 1200 Missouri Avenue, Bismarck, North

Dakota 58504-5264.

FOR FURTHER INFORMATION CONTACT: Kathleen Paser at 303-312-6526.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is being taken by EPA today?

II. Why do we need to regulate HMIWI emissions?

III. What is a State Plan?

IV. What does the North Dakota State Plan contain?

V. Is my HMIWI 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 North Dakota's State Plan, as submitted on October

6, 1998 for the control of air emissions from HMIWIs, except for those

HMIWIs located in Indian Country. When we developed our New Source

Performance Standard (NSPS) for HMIWIs, we also developed Emissions

Guidelines (EG) to control air emissions from older HMIWIs. (See 62 FR

48348-48391, September 15, 1997). North Dakota 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 12, 1999, unless by June 14, 1999, 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 this action serving as

a 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 12, 1999.

II. Why Do We Need To Regulate HMIWI 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 occur

mainly through the ingestion of fish. When inhaled, mercury vapor

attacks also 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.

[[Page 25832]]

Exposure to dioxin and furan can cause skin disorders, cancer, and

reproductive effects such as endometriosis. These pollutants can also

affect the immune system.

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 and enforce.

IV. What Does the North Dakota State Plan Contain?

North Dakota adopted the Federal NSPS and EG by reference into its

State regulations at NDAC 33-15-12-02. The North Dakota State Plan

contains:

1. A demonstration of the State's legal authority to implement the

section 111(d) State Plan;

2. State rules adopted into NDAC 33-15-12 as the mechanism for

implementing the emission guidelines. The North Dakota 23-25-10 gives

the North Dakota Department of Health the authority to enforce any

properly adopted rule.

3. An inventory of approximately 76 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 of 3 years after environmental protection

agency approval of the state plan but not 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 North Dakota State Plan was reviewed for approval with respect

to the following criteria: 40 CFR 60.23 through 60.26, Subpart B--

Adoption and Submittal of State Plans for Designated Facilities; and,

40 CFR 60.30e through 60.39e, Subpart Ce--Emission Guidelines and

Compliance Times for Hospital/Medical/Infectious Waste Incinerators. A

detailed discussion of our evaluation of the North Dakota State Plan is

included in our technical support document, located in the official

file for this action.

V. Is My HMIWI Subject to These Regulations?

The EG for existing HMIWIs affect any HMIWI 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 listed in NDAC 33-15-12-02 Subpart

Ce, summarized as follows:

1. Determine the size of your incinerator by establishing its

maximum design capacity.

2. Each size category of HMIWI 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. (40 CFR 60.33e, as listed at 62 FR 48382,

September 15, 1997).

3. There are provisions to address small rural incincerators 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% opacity limit on your discharge, averaged

over a six-minute block (40 CFR 60.33e(c), as listed at 62 FR 48380,

September 15, 1997).

5. You must have a qualified HMIWI 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) (40 CFR

60.34e, as listed at 62 FR 48380).

6. Your operator must be certified, as discussed in paragraph 5

above, no later than one year after we approve this North Dakota State

Plan (40 CFR 60.39e(e), as listed at 62 FR 48382).

7. You must develop and submit to the North Dakota Department of

Health 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 the Department of Health no

later than one year after we approve this State Plan (40 CFR 60.35e, as

listed at 62 FR 48380).

8. You must conduct an initial performance test to determine your

incinerator's compliance with these emission limits. This performance

test must be completed within 36 months of North Dakota's State Plan

approval (40 CFR 60.37e and 60.8, as listed at 62 FR 48380).

9. You must install and maintain devices to monitor the parameters

listed under Table 3 to Subpart Ec (40 CFR 60.37e(c), as listed at 62

FR 48381).

10. 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 (40 CFR 60.38e, as listed at 62 FR 48381).

11. You must report to the North Dakota Health Department 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 (40 CFR

60.38e, as listed at 62 FR 48381).

12. 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 (40 CFR 60.39e, as listed at

62 FR 48381).

VII. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from review under Executive Order 12866, entitled Regulatory

Planning and Review.

B. Executive Order 12875

Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 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, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to 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 any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

[[Page 25833]]

governments to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.

Today's rule implements requirements specifically set forth by the

Congress in sections 111 and 129 of the Clean Air Act, as amended in

1990, without the exercise of any discretion by EPA. Accordingly, the

requirements of section 1(a) of Executive Order 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), 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 is not an

economically significant action under Executive Order 12866.

D. Executive Order 13084

Executive Order 13084: Consultation and Coordination With Indian Tribal

Governments

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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to 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 officials 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 implements requirements specifically set forth by the

Congress in sections 111 and 129 of the Clean Air Act, as amended in

1990, without the exercise of any discretion by EPA.

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. Pursuant to section 605(b) of the RFA, I certify that

this rule will not have a significant economic impact on a substantial

number of small entities. This Federal action approves pre-existing

requirements under, State, law and imposes no new requirements on any

entity affected by this rule, including small entities. Therefore,

these amendments will not have a significant impact on a substantial

number of small entities.

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

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 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 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 July 12, 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 62

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Reporting and

recordkeeping requirements.

Dated: April 30, 1999.

Patricia D. Hull,

Acting Administrator, Region VIII.

40 CFR part 62 is amended as follows:

PART 62--[AMENDED]

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

Authority: 42 U.S.C. 7401-7642.

Subpart JJ--North Dakota

2. Add a new undesignated center heading and Secs. 62.8610,

62.8611, and 62.8612 to subpart JJ to read as follows:

[[Page 25834]]

AIR EMISSIONS FROM HAZARDOUS/MEDICAL/INFECTIOUS WASTE INCINERATORS

Sec. 62.8610 Identification of Plan.

Section 111(d) Plan for Hazardous/Medical/Infectious Waste

Incinerators and the associated State regulation in section 33-15-12-02

of the North Dakota Administrative Code submitted by the State on

October 6, 1998.

Sec. 62.8611 Identification of Sources.

The plan applies to all existing hazardous/medical/infectious waste

incinerators for which construction was commenced on or before June 20,

1996, as described in 40 CFR Part 60, Subpart Ce.

Sec. 62.8612 Effective Date.

The effective date for the portion of the plan applicable to

existing hazardous/medical/infectious waste incinerators is July 12,

1999.

[FR Doc. 99-12001 Filed 5-12-99; 8:45 am]

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