SUPPLEMENTARY INFORMATION:

Organization of This Document. The following outline is provided to aid in locating information in this preamble.

I. General Information

A. Does the final action apply to me?

B. Where can I get a copy of this document?

C. Judicial Review

II. Background

III. Summary of the Final Amendments

A. Nitrogen Oxides Emissions Limit

B. Sulfur Dioxide Emissions Limit

C. Reporting and Recordkeeping Requirements

D. Expeditious Compliance

E. Delegation of Authority Provisions

F. Units Descriptions of Emissions Limits

G. Extraneous Text

IV. Impacts of the Final Action

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act

A red-line version of the regulatory language that incorporates the changes in this action is available in the docket.

I. General Information

A. Does the final action apply to me?

Regulated Entities. Categories and entities potentially affected by the final action are those which operate hospital/medical/infectious waste incinerators (HMIWI). The new source performance standards (NSPS) and emissions guidelines (EG) for HMIWI affect the following categories of sources:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the final action. To determine whether your facility would be affected by the final action, you should examine the applicability criteria in 40 CFR 60.50c of subpart Ec. If you have any questions regarding the applicability of the final action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Where can I get a copy of this document?

In addition to being available in the docket, an electronic copy of the final action is available on the Worldwide Web through the Technology Transfer Network Web site (TTN Web). Following signature, EPA posted a copy of the final action on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/​ttn/​oarpg. The TTN Web provides information and technology exchange in various areas of air pollution control.

C. Judicial Review

Under section 307(b)(1) of the Clean Air Act (CAA or Act), judicial review of ( printed page 18409) this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) by June 3, 2011. Under section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Section 307(d)(7)(B) of the CAA also provides a mechanism for EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Moreover, under section 307(b)(2) of the CAA, the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements.

II. Background

On September 15, 1997, EPA adopted NSPS (40 CFR part 60, subpart Ec) and EG (40 CFR part 60, subpart Ce) for HMIWI under the authority of sections 111 and 129 of the CAA. Emissions standards were adopted for the nine pollutants required to be regulated under CAA section 129—particulate matter (PM), lead (Pb), cadmium (Cd), mercury (Hg), chlorinated dibenzo-p-dioxins/dibenzofurans, carbon monoxide, nitrogen oxides (NO_X), hydrogen chloride (HCl), and sulfur dioxide (SO₂). The EPA developed emissions limits for all nine pollutants for three HMIWI size subcategories (large, medium, and small) for the NSPS and four HMIWI size subcategories (large, medium, small, and small rural) for the EG.

On March 2, 1999, the Court in Sierra Club v. EPA, 167 F.3d 658 (DC Cir. 1999) remanded the rule to EPA for further explanation regarding how EPA derived the maximum achievable control technology floors for new and existing HMIWI. The Court did not vacate the regulations, and the regulations remained in effect during the remand.

On October 6, 2009, EPA promulgated its response to the Court's remand of the HMIWI regulations and also satisfied its requirement under CAA section 129(a)(5) to conduct a 5-year review of the HMIWI standards. The promulgated rule revised the NSPS and EG emissions limits for all nine of the CAA section 129 pollutants.

Following promulgation of the revised emissions limits, an industry representative informed EPA of an error in the published NSPS emissions limit for NO_X for large HMIWI, which did not appear to reflect EPA's described analytical process for adopting the revised standards. On review, EPA staff determined that the published revised NO_X NSPS for large HMIWI indeed did not reflect EPA's intent in the final rule. EPA reviewed the other published NSPS and EG emissions limits for similar errors, and determined that the published revised SO₂ NSPS for large HMIWI also did not reflect EPA's intent in the final rule. Also after promulgation, a state agency representative informed EPA of an error in the published NSPS reporting and recordkeeping requirements, which incorrectly referred to § 60.56, instead of § 60.56c, in three separate paragraphs.

To correct these errors, EPA issued proposed amendments on May 14, 2010, to the NSPS emissions limits for NO_X and SO₂ for large HMIWI and the NSPS reporting and recordkeeping provisions that have the incorrect cross-reference (75 FR 27249 (May 14, 2010)). EPA provided a public comment period that closed on June 28, 2010. No public comments were received on the proposed amendments during that period. Consequently, today's final action promulgates the amendments as proposed, for the reasons explained in the proposal.

Just prior to proposal of the May 14, 2010, amendments (but too late to be addressed in the proposed rule), EPA staff discovered that the HMIWI rule should be revised to clarify that compliance with the EG must be expeditious if a compliance extension is granted. After proposal of the May 14, 2010, amendments, EPA staff also noted that delegation of authority provisions had been inadvertently omitted from the EG for existing HMIWI. A state agency later informed EPA of an error in the units' description for the Cd and Hg emissions limits in Table 1B to subpart Ec (NSPS). EPA reviewed the other emissions limits tables in the NSPS and EG and found similar errors in the units descriptions for other emissions limits. To address these errors and omissions, EPA is issuing additional amendments to the NSPS and EG, to be effective upon the effective date of this final rule specified above.

III. Summary of the Final Amendments

A. Nitrogen Oxides Emissions Limit

EPA received no public comments regarding its proposed amendment to the NO_X NSPS limit for new large HMIWI. For the reasons explained in the proposed rule (see 75 FR at 27251/col. 2-27252/col. 1), today's final action amends the HMIWI NSPS to include the correct NO_X NSPS limit of 140 parts per million by volume (ppmv) for new large HMIWI, which matches the final NO_X EG limit and reflects EPA's intent in the October 6, 2009, final rule.

B. Sulfur Dioxide Emissions Limit

EPA also received no public comments on its proposed amendment to the SO₂ NSPS for new large HMIWI. For the reasons explained in the proposed rule (see 75 FR at 27252/cols. 1-2), this final action amends the HMIWI NSPS to include the correct SO₂ limit of 8.1 ppmv for new large HMIWI, which reflects EPA's intent in the October 6, 2009, final rule.

C. Reporting and Recordkeeping Requirements

The NSPS reporting and recordkeeping requirements of the October 6, 2009, final rule include three separate cross-references to “§ 60.56(d), (h), or (j).” The correct cross-reference in each case should have been “§ 60.56c(d), (h), or (j),” consistent with the section numbering format for NSPS subpart Ec. EPA received no public comments on its proposed correction to the cross-references. This final action amends the HMIWI NSPS to correctly cross-reference to sections 60.56c(d), (h), or (j).

D. Expeditious Compliance

Section 129(f)(2) of the CAA states that performance standards and other requirements promulgated pursuant to this section and Section 111 and applicable to existing solid waste incineration units shall be effective as expeditiously as practicable after approval of a State plan under subsection (b)(2) (or promulgation of a plan by the Administrator under subsection (b)(3)) but in no event later than 3 years after the State plan is approved or 5 years after the date such standards or requirements are promulgated, whichever is earlier. ( printed page 18410)

Just prior to proposal of the May 14, 2010, amendments (but too late to be addressed in the proposed rule), EPA staff discovered that paragraph (d)(3) of § 60.39e (compliance times) should be revised to clarify that compliance with the guidelines must be expeditious if a compliance extension is granted. We are amending the HMIWI EG to include this clarifying language. Specifically, we are adding the word “expeditious” to § 60.39e(d)(3) to state that if an extension is granted, require expeditious compliance with the emissions guidelines on or before the date 3 years after EPA approval of the State plan (but not later than September 16, 2002), for the emissions guidelines as promulgated on September 15, 1997, and on or before the date 3 years after EPA approval of an amended State plan (but not later than October 6, 2014), for the emissions guidelines as amended on October 6, 2009.

This action will ensure that compliance with the EG will be “expeditious,” consistent with the requirements of CAA section 129(f)(2).

E. Delegation of Authority Provisions

Provisions regarding delegation of implementation and enforcement authorities are already present in the NSPS for new HMIWI. The NSPS delegation of authority provisions in the October 6, 2009, final rule specify that the following authorities are to be retained by the Administrator and not transferred to a state:

• The requirements of § 60.56c(i) establishing operating parameters when using controls other than those listed in § 60.56c(d).
• Approval of alternative methods of demonstrating compliance under § 60.8 including:

○ Approval of continuous emissions monitoring system (CEMS) for PM, HCl, multi-metals, and Hg where used for purposes of demonstrating compliance,

○ Approval of continuous automated sampling systems for dioxin/furan and Hg where used for purposes of demonstrating compliance, and

○ Approval of major alternatives to test methods;

• Approval of major alternatives to monitoring;
• Waiver of recordkeeping requirements; and
• Performance test and data reduction waivers under § 60.8(b).

Following the May 14, 2010, proposal of amendments to the October 6, 2009, final rule, EPA staff discovered that delegation of authority provisions had been inadvertently omitted from the EG. We are amending the HMIWI EG to include these delegations of authority provisions. Specifically, we are adding a paragraph to § 60.32e of the EG stating that the authorities listed under § 60.50c(i) of the NSPS are to be retained by the Administrator and not be transferred to a state. This action will ensure consistency between the NSPS and EG regarding the implementation and enforcement authorities and avoid any confusion about which authorities can be delegated and exercised by the states and which authorities must be retained by EPA.

F. Units Descriptions of Emissions Limits

EPA was informed by a state agency post-proposal that the units' description for the Cd and Hg emissions limits in Table 1B to subpart Ec (NSPS) included both the concentration units and the not-promulgated percent reduction alternative. Table 1B to subpart Ec includes the amended emissions limits for new HMIWI in the October 6, 2009, final rule, which appropriately do not include a not-promulgated percent reduction alternative.

We are amending Table 1B to subpart Ec effective immediately to remove the units' description for the not-promulgated percent reduction alternative and avoid any confusion regarding the elimination of the percent reduction alternative for new HMIWI in the October 6, 2009, final rule.

EPA found similar errors after reviewing the other emissions limits tables in the NSPS and EG. First, the October 6, 2009, amendments to Table 1A to subpart Ce (EG) mistakenly removed the units' description for the previously promulgated percent reduction alternative for HCl, Pb, Cd, and Hg. Table 1A to subpart Ce includes the emissions limits from the September 15, 1997, EG, including the percent reduction alternative, to which existing HMIWI are subject until revised or new state plans are issued based on the October 6, 2009, amendments (which do not include the percent reduction alternative).

Second, the October 6, 2009, amendments to Table 1A to subpart Ec (NSPS) mistakenly removed the units' description for the previously promulgated percent reduction alternative for HCl and Pb. Table 1A to subpart Ec includes the emissions limits from the September 15, 1997, NSPS, including the percent reduction alternative. Those emissions limits apply to HMIWI that commenced construction after June 20, 1996, but no later than December 1, 2008, or commenced modification after March 16, 1998, but no later than April 6, 2010, except where the emissions limits in the amended EG are more stringent.

We are amending Table 1A to subpart Ce and Table 1A to subpart Ec to restore the units' description for the percent reduction alternative for these pollutants and avoid any confusion regarding the use of a percent reduction alternative for existing and new HMIWI under the original September 15, 1997, rule.

G. Extraneous Text

In the course of reviewing the unit's descriptions of the emissions limits, we discovered that some extraneous text had been included with the HCl NSPS limit for new large HMIWI in Table 1A to subpart Ec. (As noted previously, Table 1A to subpart Ec includes the emissions limits from the September 15, 1997, NSPS.) We are amending Table 1A to subpart Ec to remove the extraneous text and thereby avoid any confusion regarding the HCl NSPS limit for new large HMIWI in Table 1A to subpart Ec.

IV. Impacts of the Final Action

Based on the stringency of the HMIWI standards promulgated on October 6, 2009, sources would likely respond to the HMIWI rule by choosing not to construct new HMIWI and would use alternative waste disposal options rather than incur the costs of compliance. Considering this information, we do not anticipate any new HMIWI, and, therefore, no costs or impacts are associated with the final NSPS amendments for NO_X and SO₂ for new large units.

However, in the unlikely event that a new unit is constructed, we estimated costs and impacts expected for each of three HMIWI model plants (large, medium, and small), which we entered into the docket for the October 6, 2009, promulgation. (See 2009 memoranda entitled “Revised Compliance Costs and Economic Inputs for New HMIWI” and “Revised Baseline Emissions and Emissions Reductions for Existing and New HMIWI,” which are included in the docket.) We estimated baseline NO_X emissions of 80 ppmv and baseline SO₂ emissions of 0.84 ppmv for the large HMIWI model plant, based on the average NO_X and SO₂ emissions measured at the latest large HMIWI to be installed since the 1997 rule. Consequently, the NO_X and SO₂ emissions associated with the large HMIWI model plant are already below both the incorrect NO_X and SO₂ emissions limits of 130 ppmv and 1.6 ppmv, respectively, promulgated in the October 6, 2009, Federal Register notice, and the correct NO_X and SO₂ ( printed page 18411) emissions limits of 140 ppmv and 8.1 ppmv, respectively, being promulgated in today's action. Therefore, even if a new large unit were constructed, we would estimate no cost savings or negative impacts associated with today's final amendments to the NO_X and SO₂ emissions limits for new large HMIWI.

None of the other amendments in today's final action change the requirements of the HMIWI rule, and, therefore, will not result in any impacts.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This final action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

This final action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. Burden is defined at 5 CFR 1320.3(b). This final action only includes revised NO_X and SO₂ emissions limits for new large HMIWI, and, as noted previously, no new HMIWI are anticipated. Consequently, this final action will not impose any additional information collection burden for new sources.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this final action on small entities, small entity is defined as follows: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this final action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. This final action only includes revised NO_X and SO₂ emissions limits for new large HMIWI, and no new HMIWI are anticipated.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments, or the private sector. This final action imposes no enforceable duty on any state, local, or tribal governments, or the private sector. Therefore, this final action is not subject to the requirements of sections 202 or 205 of the UMRA.

This final action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. Because this final rule's requirements apply equally to HMIWI units owned and/or operated by governments or HMIWI units owned and/or operated by private entities, there would be no requirements that uniquely apply to such government or impose any disproportionate impacts on them.

E. Executive Order 13132: Federalism

This final rule does not have federalism implications. It will 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. This final action will not impose substantial direct compliance costs on state or local governments, and will not preempt state law. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249; November 9, 2000). EPA is not aware of any HMIWI owned or operated by Indian tribal governments. Thus, Executive Order 13175 does not apply to this final action.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885; April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) 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 VCS bodies. The NTTAA directs EPA to provide Congress, through the Office of Management and Budget, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice (EJ). Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make EJ part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations, and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule amendment ( printed page 18412) affects only new large units, and no new units are anticipated to be constructed. This rule amendment does not relax the control measures on sources regulated by the rule will therefore not cause emissions increased from these sources.

K. Congressional Review Act

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 final 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 this final 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). This final rule will be effective on May 4, 2011.

For the reasons stated in the preamble, Title 40, chapter I, part 60 of the Code of Federal Regulations is amended as follows:

1. The authority citation for part 60 continues to read as follows:

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

2. Section 60.32e is amended by adding paragraph (k) to read as follows:

3. Section 60.39e is amended by revising paragraph (d)(3) to read as follows:

4. Table 1A to subpart Ce is revised to read as follows:

5. Section 60.58c is amended by revising paragraphs (d)(1) through (3) to read as follows:

6. Table 1A to subpart Ec is revised to read as follows:

7. Table 1B to Subpart Ec is revised to read as follows:

( printed page 18415)