[Federal Register Volume 83, Number 51 (Thursday, March 15, 2018)]
[Rules and Regulations]
[Pages 11416-11418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05294]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2017-0453; FRL-9975-33-Region 3]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants; City of Philadelphia; Control of 
Emissions From Existing Hospital/Medical/Infectious Waste Incinerator 
Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to reaffirm and reapprove a 
negative declaration for existing hospital/medical/infectious waste 
incinerator (HMIWI) units within the City of Philadelphia. This 
negative declaration certifies that existing HMIWI units subject to the 
requirements of sections 111(d) and 129 of the Clean Air Act (CAA) do 
not exist within the jurisdictional boundaries of the Philadelphia Air 
Management Service (AMS). EPA is accepting the negative declaration in 
accordance with the requirements of the CAA.

DATES: This rule is effective on April 16, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R03-OAR-2017-0453. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (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 through 
http://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Mike Gordon, (215) 814-2039, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Sections 111(d) and 129 of the CAA require states to submit plans 
to control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities (designated facilities) whenever standards 
of performance have been established under section 111(b) for new 
sources of the same type, and EPA has established emission guidelines 
(EG) for such existing sources. CAA section 129 directs EPA to 
establish standards of performance for new sources and emissions 
guidelines for existing sources for each category of solid waste 
incineration unit. CAA section 129(a) and (b). EPA also must specify 
numerical emissions limitations for particulate matter (total and 
fine), opacity (as appropriate), sulfur dioxide, hydrogen chloride, 
oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and 
dioxins and dibenzofurans. CAA section 129(a)(4).
    On September 15, 1997 (62 FR 48348), EPA first promulgated HMIWI 
unit new source performance standards, 40 CFR part 60, subpart Ec, and 
emission guidelines for existing facilities, subpart Ce. These 
regulations were then amended on October 6, 2009 (74 FR 51368) and on 
April 4, 2011 (76 FR 18407).
    The designated facilities to which the EG apply are existing HMIWI 
units that: (1) Commenced construction on or before June 20, 1996, or 
for which modification was commenced on or before March 16, 1998; or 
(2) commenced construction after June 20, 1996 but no later than 
December 1, 2008, or for which modification commenced after March 16, 
1998 but no later than April 6, 2010, with limited exceptions as 
provided in paragraphs 40 CFR 60.32e(b) through (h).
    Subpart B and Ce of 40 CFR part 60 establish procedures to be 
followed and requirements to be met in the development and submission 
of state plans for controlling designated pollutants from existing 
HMIWI facilities. Also, 40 CFR part 62 provides the procedural 
framework for the submission of these plans. When existing designated 
facilities are located in a state, the state must then develop and 
submit a plan for the control of the designated pollutant. However, 40 
CFR 60.23(b) and 62.06 provide that if there are no existing sources of 
the designated pollutant in the state, the state may submit a letter of 
certification to that effect (i.e., negative declaration) in lieu of a 
plan. The negative declaration exempts the state from the requirements 
of subpart B that require the submittal of a section 111(d)/129(b) 
plan.
    On October 12, 2017 (82 FR 47398 and 82 FR 47421), EPA 
simultaneously published a notice of proposed rulemaking (NPR) and a 
direct final rule (DFR) for the City of Philadelphia approving a 
negative declaration from Philadelphia AMS that there are no existing 
HMIWI units subject to the requirements of sections 111(d) and 129 of 
the CAA in its respective air pollution control jurisdiction. EPA 
explained that if it did not receive an adverse comment on the NPR, the 
DFR would take effect with no further administrative action. EPA 
received an adverse comment on the NPR and attempted to withdraw the 
DFR prior to its effective date of December 11, 2017. However, EPA 
inadvertently did not withdraw the DFR prior to that date and the rule 
prematurely became effective on December 11, 2017, revising 40 CFR part 
62 to reflect the approval of the negative declaration. In the NPR, EPA 
had proposed to approve the negative declaration. In this final 
rulemaking, EPA is responding to the comment submitted on the proposed 
approval of the negative declaration and approving the negative 
declaration. This action supersedes the prior DFR which went in to 
effect prematurely and had an effective date of December 11, 2017.

II. State Submittal and EPA Analysis

    Philadelphia AMS has determined that there are no existing HMIWI 
units subject to the requirements of sections 111(d) and 129 of the CAA 
in its respective air pollution control jurisdiction. Accordingly, 
Philadelphia AMS submitted a negative declaration letter to EPA 
certifying this fact on August 2, 2011. The negative declaration letter 
and EPA's technical support document for this action are available in 
the docket for this rulemaking and online at www.regulations.gov.

III. Public Comment and EPA Response

    EPA received one adverse comment on the proposed approval of the 
negative declaration for existing HMIWI units submitted by Philadelphia 
AMS.
    Comment: The commenter stated that EPA must ensure that no 
additional HMIWI units have been constructed since the time of 
Philadelphia's

[[Page 11417]]

certification letter. The commenter also asserted that since so much 
time has passed since the submittal of the negative declaration, EPA 
cannot rely on such an outdated form of information to ensure no units 
have been built.
    Response: EPA does not agree with the commenter's assertion that 
EPA must ensure that no additional HMIWI units have been constructed 
since Philadelphia AMS submitted the negative declaration on August 2, 
2011 in order to finalize this action. As stated in the technical 
support document for the NPR and the emission guidelines for existing 
HMIWI units (40 CFR 60 subpart Ce), the designated facilities to which 
the EG apply are existing HMIWI units that: (1) Commenced construction 
on or before June 20, 1996, or for which modification was commenced on 
or before March 16, 1998; or (2) commenced construction after June 20, 
1996 but no later than December 1, 2008, or for which modification 
commenced after March 16, 1998 but no later than April 6, 2010, with 
limited exceptions as provided in paragraphs 40 CFR 60.32e(b) through 
(h). 40 CFR 60.32e(a). Thus, to obtain EPA approval of Philadelphia's 
negative declaration regarding existing HMIWI units, Philadelphia only 
needed to assert no HMIWI units exist that commenced construction 
before December 1, 2008 or commenced modification before April 6, 2010. 
Because Philadelphia's August 2, 2011 submittal meets that criterion, 
Philadelphia's negative declaration did not need to address whether any 
new units have been constructed since the time of Philadelphia's 
certification letter on August 2, 2011. EPA's acceptance of 
Philadelphia's negative declaration therefore is appropriate.
    HMIWI units constructed in Philadelphia after the above cited dates 
would be considered ``new,'' as opposed to ``existing,'' and therefore 
would be subject to a separate rule--40 CFR 60 subpart Ec, ``Standards 
of Performance for New Stationary Sources: Hospital/Medical/Infectious 
Waste Incinerators.'' EPA is not aware of any new HMIWI units within 
the jurisdictional boundaries of Philadelphia AMS. If EPA became aware 
of a new HMIWI unit in Philadelphia, it would have no bearing on the 
approvability of this HMIWI negative declaration because it only 
pertains to existing sources.
    At the time of Philadelphia's submission, EPA worked with 
Philadelphia AMS and reviewed Philadelphia's inventory of sources to 
ensure no existing HMIWI units existed within Philadelphia, and the 
commenter has not provided any information to the contrary that would 
cause EPA to reconsider the assessment of Philadelphia AMS's negative 
declaration. EPA is therefore finalizing the negative declaration for 
existing HMIWI units in this action.

IV. Final Action

    In this final action, EPA is reaffirming and reapproving the 
previous amendment to part 62 to reflect receipt of the negative 
declaration letter from Philadelphia AMS. EPA is accepting the negative 
declaration in accordance with the requirements of the CAA and 40 CFR 
60.23(b) and 62.06.

V. Statutory and Executive Order Reviews

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. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely notifies the public of EPA receipt of a negative declaration 
from an air pollution control agency without any existing HMIWI units 
in their jurisdiction. This action imposes no requirements. 
Accordingly, EPA 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 action 
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). This action also does 
not have tribal implications because it will not have a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal Government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000). This action also does not have Federalism implications because 
it does 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). This action merely approves the negative declaration for 
existing HMIWI units from the Philadelphia AMS and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This action also is not subject to 
Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    With regard to negative declarations for designated facilities 
received by EPA from states, EPA's role is to notify the public of the 
receipt of such negative declarations and revise 40 CFR part 62 
accordingly. 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 approve or disapprove a CAA section 111(d)/129 
plan negative declaration submission for failure to use VCS. It would 
thus be inconsistent with applicable law for EPA, when it reviews a CAA 
section 111(d)/129 negative declaration, to use VCS in place of a 
section 111(d)/129 negative declaration 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. This action 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 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).

C. Petitions for Judicial Review

    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 May 14, 2018. Filing a petition for 
reconsideration by the

[[Page 11418]]

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. This action 
approving the negative declaration for existing HMIWI units within the 
City of Philadelphia 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, Waste treatment and disposal.

    Dated: February 23, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-05294 Filed 3-14-18; 8:45 am]
 BILLING CODE 6560-50-P


