[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Rules and Regulations]
[Pages 2543-2546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00411]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R08-OAR-2022-0929; FRL-10462-02-R8]


Approval and Promulgation of Implementation Plans; Colorado; 
Delegation of Authority of the Federal Plan for Existing Hospital, 
Medical, Infectious Waste Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: With this direct final rule, the Environmental Protection 
Agency (EPA) is providing notice and codifying approval of a request 
submitted by the Colorado Department of Public Health and Environment 
(CDPHE) on June 27, 2022 for delegation of authority to implement and 
enforce the Federal Plan Requirements for Hospital/Medical/

[[Page 2544]]

Infectious Waste Incinerators (HMIWI) Constructed On or Before December 
1, 2008 (the Federal Plan), within the state of Colorado. The Federal 
Plan establishes emission limits and monitoring, operating, and 
recordkeeping requirements for HMIWI units constructed on or before 
December 1, 2008, or modified on or before April 6, 2010. A Memorandum 
of Agreement (MOA) was signed on July 21, 2022 by the CDPHE Air 
Pollution Control Division Director, Michael Ogletree. This MOA 
constitutes the mechanism for the transfer of authority from the EPA to 
CDPHE. The MOA became effective upon signature by Regional 
Administrator, KC Becker, on August 8, 2022. The MOA delineates 
policies, responsibilities, and procedures by which the Federal Plan 
will be administered and enforced by the CDPHE, as well as the 
authorities retained by EPA.

DATES: This direct final rule is effective on March 20, 2023 without 
further notice, unless EPA receives adverse written comments on or 
before February 16, 2023. If adverse comments are received, EPA will 
publish a timely withdrawal of the direct final rule in the Federal 
Register informing the public that the rule will not take effect.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2022-0929. 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., 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: Allison Reibach, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-6949, email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without prior proposal because we view 
this as a non-controversial action and anticipate no adverse comments. 
However, in the Proposed Rules section of this Federal Register, we are 
publishing a separate document that will serve as the proposal to 
approve the delegation if relevant adverse comments are received. This 
rule will be effective on March 20, 2023 without further notice unless 
we receive adverse comment by February 16, 2023. If we receive adverse 
comments, we will publish a timely withdrawal in the Federal Register 
informing the public that the direct final rule will not take effect. 
We will address all public comments 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 must do so now.

II. Background

    Section 129 of the Clean Air Act (the ``CAA'' or ``Act''), titled 
``Solid Waste Combustion,'' requires EPA to develop and adopt standards 
for solid waste incineration units pursuant to sections 111(d) and 129 
of the Act. On April 4, 2011, EPA promulgated revisions to the 
emissions guidelines (EG) for HMIWI units (76 FR 18407). Codified at 40 
CFR part 60, subparts Ce, this final rule sets limits for nine 
pollutants under section 129 of the CAA: Cadmium (Cd), carbon monoxide 
(CO), hydrogen chloride (HCl), lead (Pb), mercury (Hg), nitrogen oxides 
(NOX), particulate matter (PM), dioxins/furans, and sulfur 
dioxide (SO2). The EG apply to existing HMIWI units, which 
are those units that commenced construction on or before December 1, 
2008, or that commenced modification on or before April 6, 2010 (see 40 
CFR 60.32e).
    CAA section 129 also requires each state in which HMIWI units are 
operating to submit a plan to implement and enforce the EG with respect 
to such units. State plan requirements must be ``at least as 
protective'' as the EG and become Federally enforceable upon approval 
by EPA. The procedures for adoption and submittal of state plans are 
codified in 40 CFR part 60, subpart B. For states that do not submit a 
plan, EPA is required to develop and implement a Federal Plan within 
two years following promulgation of the emission guidelines. The EPA 
implementation and enforcement of the Federal Plan is viewed as an 
interim measure until states assume their role as the preferred 
implementers of the emission guidelines requirements stipulated in the 
Federal Plan. Accordingly, EPA promulgated the HMIWI Federal Plan on 
May 13, 2013 (78 FR 28051). In this rulemaking, EPA strongly encouraged 
state and local agencies in jurisdictions that did not submit 
approvable state plans to request delegation of the HMIWI Federal Plan 
so that they can have the primary responsibility for implementing and 
enforcing regulations affecting existing HMIWI units, consistent with 
the intent of section 129 of the CAA.

III. Submittal and EPA Approval of Requests for Delegation of the 
Federal Plan

    On June 27, 2022, CDPHE requested delegation of authority from EPA 
to implement and enforce the Federal Plan for existing HMIWI units, 
codified at 40 CFR part 62, subpart HHH. The scope of the request from 
the CDPHE included all affected facilities within the State of 
Colorado. The delegation of authority does not apply to sources located 
in Indian Country.
    The EPA evaluates requests for delegation of the HMIWI Federal Plan 
pursuant to the provisions of the HMIWI Federal Plan and the EPA's 
Delegations Manual. Pursuant to the HMIWI Federal Plan, a state may 
meet its CAA section 111(d)/129 obligations by submitting an acceptable 
written request for delegation of the Federal Plan that includes the 
following elements: (1) A demonstration of adequate resources and legal 
authority to administer and enforce the Federal Plan; (2) an inventory 
of affected HMIWI units, an inventory of emissions from affected HMIWI 
units, and provisions for state progress reports); (3) certification 
that the hearing on the state delegation request; and (4) a commitment 
to enter into a MOA with the Regional Administrator that sets forth the 
terms, conditions, and effective date of the delegation and that serves 
as the mechanism for the transfer of authority (see 40 CFR 62.14401) 
(78 FR 28051). CDPHE met delegation requirements (1) through (3) in a 
letter to EPA dated June 27, 2022, which is included in the docket for 
this action, as well as requirement (4), which is addressed below.
    Pursuant to the EPA's Delegations Manual, item 7-139, 
Implementation and Enforcement of 111(d)(2) and 111(d)(2)/129(b)(3) 
Federal Plans, a copy of which is included in the Supporting Documents 
for this action, the Regional Administrator is authorized to delegate 
authority to implement and enforce section 111(d)/129 Federal Plans to 
states. Whereas a state plan implementing the EG must be submitted by 
the state, a local agency may directly request delegation of authority 
to implement the HMIWI Federal Plan with respect to sources within its 
jurisdiction, provided it has authority under state law to do so and 
has met the delegation requirements

[[Page 2545]]

identified above (78 FR 28051). The requirements and limitations of a 
delegation agreement are set forth in item 7-139 of the Delegations 
Manual. Consistent with those requirements, the EPA prepared an MOA 
between the EPA and CDPHE which defines policies, responsibilities, and 
procedures pursuant to the HMIWI Federal Plan by which the Federal Plan 
will be administered by CDPHE. Subsequently, on July 21, 2022, Michael 
Ogletree, Director of the Colorado Air Pollution Control Division of 
CDPHE signed the MOA, thus agreeing to the terms and conditions of the 
MOA and accepting responsibility for implementation and enforcement of 
the policies and procedures of the Federal Plan, except for certain 
authorities (e.g., approval of major alternatives to test methods or 
monitoring) retained by the EPA. The EPA continues to retain 
enforcement authority along with CDPHE. The MOA, and resulting 
delegation of authority, became effective upon signature by the 
Regional Administrator on August 8, 2022.\1\
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    \1\ The MOA is located in our docket (Docket ID No. EPA-R08-OAR-
[docket number]). found at www.regulations.gov.
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    The EPA has evaluated the CDPHE submittal for consistency with the 
CAA, EPA regulations, and EPA policy. CDPHE has met all the 
requirements of the EPA's guidance for obtaining delegation of 
authority to implement and enforce the HMWI Federal Plan. CDPHE entered 
into a MOA with EPA and it became effective on August 8, 2022. 
Accordingly, the EPA is approving the CDPHE request dated June 27, 2022 
for delegation of authority to implement and enforce the Federal Plan 
for existing HMIWI units. EPA will continue to retain certain specific 
authorities as specified in the HMIWI Federal Plan and as indicated in 
the MOA (e.g., authority to approve major alternatives to test methods 
or monitoring, etc.).

III. Final Action

    In this action, EPA is codifying approval of a request submitted by 
CDPHE for delegation of authority to implement and enforce the Federal 
Plan for existing HMIWI units in Colorado, pursuant to 40 CFR part 62, 
subpart HHH.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to delegate the 
authority to implement a 111(d)/129 Federal Plan that complies with the 
provisions of the CAA and applicable Federal regulations (see 40 CFR 
60.27). In reviewing 111(d)/129 Federal Plan delegation requests, EPA's 
role is to approve state choices, provided that they meet the criteria 
of the CAA and of EPA's implementing regulations. Accordingly, this 
action merely codifies in the Code of Federal Regulations EPA's 
delegation of authority to implement the Federal Plan and does not 
impose additional requirements beyond those imposed by the already-
applicable Federal Plan. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the delegation of authority is not approved to apply 
on any Indian reservation land or in any other area where EPA or an 
Indian tribe has demonstrated that a tribe has jurisdiction. In those 
areas of Indian country, the rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).
    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).
    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 March 20, 2023. Filing a 
petition for reconsideration by the 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 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, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements, Waste treatment 
and disposal.

    Dated: January 5, 2023.
KC Becker,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble, 40 CFR part 62 is 
amended as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart G--Colorado

0
2. Revise Sec.  62.1360 to read as follows:


Sec.  62.1360   Identification of plan--delegation of authority.

    On August 8, 2022, EPA signed a Memorandum of Agreement (MOA) that

[[Page 2546]]

defines policies, responsibilities, and procedures pursuant to 40 CFR 
part 62, subpart HHH (the Federal Plan) by which the Federal Plan will 
be administered by the Colorado Department of Public Health and 
Environment (CDPHE).

0
3. Revise Sec.  62.1361 to read as follows:


Sec.  62.1361   Identification of sources.

    The MOA and related Federal Plan apply to existing hospital/
medical/infectious waste incinerators for which construction was 
commenced on or before December 1, 2008, or for which modification was 
commenced on or before April 6, 2010.

0
4. Revise Sec.  62.1362 to read as follows:


Sec.  62.1362   Effective date.

    The delegation became fully effective on August 8, 2022, the date 
the MOA was signed by the EPA Region 8 Regional Administrator.

[FR Doc. 2023-00411 Filed 1-13-23; 8:45 am]
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