Approval and Promulgation of State Plans For Designated Facilities and Pollutants: Vermont; Negative Declaration

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Docket No. VT-016-1220a; FRL-6474-1]

Approval and Promulgation of State Plans For Designated

Facilities and Pollutants: Vermont; Negative Declaration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA publishes regulations under Sections 111(d) and 129 of the

Clean Air Act requiring states to submit plans to EPA. These plans show

how states intend to control the emissions of designated pollutants

from designated facilities. 40 CFR 62.06 provides that when no such

designated facilities exist within a state's boundaries, the affected

state may submit a letter of ``negative declaration'' instead of a

control plan. On April 16, 1999, the state of Vermont submitted a

negative declaration adequately certifying that there are no hospital/

medical/infectious waste incinerators (HMIWIs) located within its

boundaries. EPA is approving Vermont's negative declaration.

DATES: This direct final rule is effective on January 18, 2000 without

further notice unless EPA receives significant, material and adverse

comment by December 16, 1999. If EPA receives adverse comment, 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 your written comments to: Mr. Brian

Hennessey, Acting Chief, Air Permits Unit, Office of Ecosystem

Protection, U.S. EPA, One Congress Street, Suite 1100 (CAP), Boston, MA

02114-2023.

Copies of the documents relevant to this action are available for

public inspection during normal business hours, by appointment at the

Office of Ecosystem Protection, U.S. Environmental Protection Agency,

Region I, One Congress Street, 11th floor, Boston, MA.

FOR FURTHER INFORMATION CONTACT: John J. Courcier, (617) 918-1659.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action Is EPA taking today?

II. What is the origin of the requirements?

III. When did the HMIWI requirements first become known?

IV. When did Vermont submit its negative declaration?

V. Administrative Requirements

I. What Action Is EPA Taking Today?

EPA is approving the negative declaration of air emissions from

HMIWIs submitted by the state of Vermont.

EPA is publishing this negative declaration without prior proposal

because the Agency views this as a noncontroversial amendment and

anticipates no adverse comments. However, in the proposed rules section

of this Federal Register, EPA is publishing a separate document that

will serve as the proposal to approve this negative declaration should

relevant adverse comments be filed. If EPA receives no significant,

material, or adverse comment by December 16, 1999, this action will be

effective January 18, 2000.

If EPA receives significant, material, and adverse comments by the

above date, we will withdraw this action before the effective date by

publishing a subsequent document in the Federal Register that will

withdraw this final action. EPA will address all public comments

received in a subsequent final rule based on the parallel proposed rule

published in today's Federal Register. EPA 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 EPA receives no comments,

this action will be effective January 18, 2000.

II. What Is the Origin of the Requirements?

Under Section 111(d) of the Clean Air Act, EPA published

regulations at 40 CFR Part 60, Subpart B which require states to submit

plans to control emissions of designated pollutants from designated

facilities. In the event that a state does not have a particular

designated facility located within its boundaries, EPA requires that a

negative declaration be submitted in lieu of a control plan.

III. When Did the Requirements First Become Known?

On June 26, 1996 (61 FR 31736), EPA proposed HMIWIs as designated

facilities. EPA specified particulate matter, opacity, sulfur dioxide,

hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium,

mercury, and dioxins and dibenzofurans as designated pollutants by

proposing emission guidelines for existing HMIWIs. These guidelines

were published in final form on September 15, 1997 (62 FR 48348).

IV. When Did Vermont Submit Its Negative Declaration?

On April 16, 1999, the Vermont Agency of Natural Resources (ANR)

submitted a letter certifying that there are no existing HMIWIs subject

to 40 CFR Part 60, Subpart B. EPA is publishing this negative

declaration at 40 CFR 62.11475.

V. 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 Orders on Federalism

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, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of

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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.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)),

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612, (52 FR 41685 (October 30, 1987)) on federalism

still applies. This rule will not have a substantial direct effect on

Vermont, 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 12612.

The rule affects only a few States, and does not alter the relationship

or the distribution of power and responsibilities established in the

Clean Air Act.

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 does not involve

decisions intended to mitigate environmental health or safety risks

that EPA has reason to believe may have a disproportionate effect on

children.

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, E.O. 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 action does not create any new requirements on any entity

affected by this State Plan. Thus, the action will not significantly or

uniquely affect the communities of Indian tribal governments.

Accordingly, the requirements of section 3(b) of E.O. 13084 do not

apply to this rule.

E. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Negative declaration approvals under section 111(d) of the Clean

Air Act do not create any new requirements on any entity affected by

this rule, including small entities. Furthermore, in developing the

HMIWI emission guidelines and standards, EPA prepared a written

statement pursuant to the Regulatory Flexibility Act which it published

in the 1997 promulgation notice (see 62 FR 48348). In accordance with

EPA's determination in issuing the 1997 HMIWI emission guidelines, this

negative declaration approval does not include any new requirements

that will have a significant economic impact on a substantial number of

small entities.

Therefore, because this approval does not impose any new

requirements and pursuant to section 605(b) of the Regulatory

Flexibility Act, the Regional Administrator certifies that this rule

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

the 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 on by the rule.

EPA has determined that this approval action 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 imposes no new requirements.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action. Thus,

this action is not subject to the requirements of sections 202, 203,

204, and 205 of the Unfunded Mandates Act.

G. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as amended by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Pub L. 104-113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary consensus

[[Page 62119]]

standards in its regulatory activities unless to do so would be

inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., materials

specifications, test methods, sampling procedures, and business

practices) that are developed or adopted by voluntary consensus bodies.

The NTTAA directs EPA to provide Congress, through OMB, explanations

when the Agency decides not to use available and applicable voluntary

consensus standards.

In approving or disapproving negative declarations under section

129 of the Clean Air Act, EPA does not have the authority to revise or

rewrite the State's rule, so the Agency does not have authority to

require the use of particular voluntary consensus standards.

Accordingly, EPA has not sought to identify or require the State to use

voluntary consensus standards. Therefore, the requirements of the NTTAA

are not applicable to this final rule.

I. 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 18, 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), 42

U.S.C. 7607(b)(2)). EPA encourages interested parties to comment in

response to the proposed rule rather than petition for judicial review,

unless the objection arises after the comment period allowed for in the

proposal.

List of Subjects in 40 CFR Part 62

Administrative practice and procedure, Air pollution control,

Environmental protection, Intergovernmental relations, Hospital/

Medical/Infectious Waste Incinerators, Reporting and recordkeeping

requirements.

Dated: November 1, 1999.

John P. DeVillars,

Regional Administrator, Region 1.

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. 7401-7642

Subpart UU--Vermont

2. Subpart UU is amended by adding a new Sec. 62.11475 and a new

undesignated center heading to read as follows:

* * * * *

Air Emissions From Existing Hospital/Medical/Infectious Waste

Incinerators

Sec. 62.11475 Identification of Plan--negative declaration.

On April 16, 1999, the Vermont Agency of Natural Resources

submitted a letter certifying that there are no existing hospital/

medical/infectious waste incinerators in the state subject to the

emission guidelines under Part 60, Subpart B of this chapter.

[FR Doc. 99-29759 Filed 11-15-99; 8:45 am]

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