Air quality implementation plans; approval and promulgation; various States: Washington,
[Federal Register: November 19, 1998 (Volume 63, Number 223)]
[Rules and Regulations]
[Page 64188-64191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no98-12]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA 67-7142a; FRL--6188-1]
Approval and Promulgation of Implementation Plans: Washington
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
SUMMARY: Environmental Protection Agency (EPA) approves a minor revision to the State Implementation Plan (SIP) for Washington. Pursuant to section 110 (a) of the Clean Air Act (CAA), the Washington Department of Ecology (WDOE) submitted a request dated January 8, 1998, to EPA to revise the SIP and include a variance to a permit issued by a local air pollution control agency, the Puget Sound Air Pollution Control Agency (PSAPCA), to the U.S. Army for the operation of three heat recovery incinerators located at Fort Lewis.
DATES: This action is effective on January 19, 1999 without further notice, unless EPA receives adverse comment by December 21, 1998. If adverse comment is received, EPA 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.
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ADDRESSES: Written comments should be addressed to: Ms. Montel Livingston, SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, Washington 98101.
Documents which are incorporated by reference are available for public inspection at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW, Washington, D.C. 20460. Copies of material submitted to EPA may be examined during normal business hours at the following locations: EPA Region 10, Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 98101, and WDOE, P.O. box 47600, Olympia, Washington 98504.
FOR FURTHER INFORMATION CONTACT: Mahbubul Islam, Office of Air Quality (OAQ-107), EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101, (206) 553-6985.
SUPPLEMENTARY INFORMATION:
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Background
WDOE submitted a revision of the Washington SIP to EPA dated January 8, 1998 consisting of a minor amendment to PSAPCA Regulations I, Article 3, Section 3.23, Alternate Means of Compliance, (new) Subsection NOC#7216.
The U.S. Army has requested a variance to a permit issued by the PSAPCA for the operation of three heat recovery incinerators located at Fort Lewis. Through the permit approval process, PSAPCA determined that the incinerators employed the best available control technology (BACT) and the toxic air contaminants would not exceed acceptable source impact levels. The permit required the facility to meet emission limits specified in EPA guidance and use good combustion practices to minimize emissions of hazardous air pollutants (HAPs). Fort Lewis performed source testing of the three incinerator units and demonstrated their ability to meet the permit emission limits. However, the heat recovery incinerators cannot comply with the residence time requirements in the WDOE solid waste incinerator rule (WAC 173-434-160). The intent of the residence time design requirement is to assure adequate control of emissions without requiring extensive testing. Fort Lewis requested a variance from the residence time requirements, and will instead demonstrate compliance through annual source testing as specified in the permit.
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Summary of Action
EPA is, by today's action, approving a permit variance issued to the U.S. Army, operator and owner of three heat recovery incinerators at Fort Lewis. PSAPCA held a public hearing on this variance request on December 1, 1997 at Fort Lewis. In addition, after a thirty day comment period, the Board of Directors of PSAPCA and WDOE held public hearings on December 11, 1997. No public comment was received during the comment period.
The U.S. Army requests that three heat recovery incinerators at Fort Lewis be granted a variance to WAC 173-434 160(2), requiring a one second residence time at 1800 deg. F for all combustion gases after the last over fire air port. Due to the limited size of the incinerator firebox, the volume of airflow at design temperatures does not allow a residence time of one second. In order to comply with the residence time requirement, major structural modifications need to be made. The U.S. Army estimated that such a change to the incinerator building would cost in excess of $5 million. Such an additional cost burden on the American taxpayer is unwarranted since all air emission standards will be met by alternative means and there is no environmental or public health hazard caused by non-compliance with the one second residence time rule.
The residence time requirement is intended to minimize the formation of Dioxin during the initial combustion of refuse. This regulation was enacted before the carbon injection became the control method to minimize Dioxin emissions from incinerators. The Fort Lewis incinerator injects powder activated carbon into the flue gases to remove Dioxin from the stack gases. Source testings at Fort Lewis incinerators show that their dioxin emissions to the atmosphere are well below acceptable limits specified in the permit. Fort Lewis will conduct annual emission testings to ensure that they meet the permit requirements and protect human health and environment.
This variance is requested for one year, during which time a permanent solution will be sought. Fort Lewis will cooperate with WDOE during the rule making process to revise the incinerator rule so that it allows demonstrating compliance with the intent of the regulation (control of HAPs) through alternative mechanisms.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective January 19, 1999 without further notice unless the Agency receives adverse comments by December 21, 1998.
If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 19, 1999 and no further action will be taken on the proposed rule.
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Administrative Requirements
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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.''
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Executive Order 12875
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. If the mandate is unfunded, EPA must 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 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.
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Executive Order 13045
Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997),
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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.
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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, Executive Order 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 rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.
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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. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
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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 annual 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 annual 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.
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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 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).
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Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by January 19, 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 52
Environmental protection, Air pollution control, Incorporation by reference.
Dated: November 3, 1998. Jane S. Moore, Acting Regional Administrator, Region X.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
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The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart WW--Washington
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Section 52.2470 is amended by adding paragraph (c)(78) to read as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(78) EPA approves a minor revision to the SIP dated January 8, 1998 to include a variance to a permit issued to the U.S. Army for the operation of three heat recovery incinerators located at Fort Lewis by local air pollution control agency, the Puget Sound Air Pollution Control Agency.
(i) Incorporation by reference.
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(A) Puget Sound Air Pollution Control Agency, Notice of Construction No. 7216, Date: Nov 25, 1997.
[FR Doc. 98-30847Filed11-18-98; 8:45 am]
BILLING CODE 6560-50-P
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