[Federal Register Volume 74, Number 110 (Wednesday, June 10, 2009)]
[Rules and Regulations]
[Pages 27444-27447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13595]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-RO4-OAR-2008-0159(b); FRL-8912-9]


Approval and Promulgation of State Plans for Designated 
Facilities and Pollutants; City of Memphis, TN; Control of Emissions 
From Existing Hospital/Medical/Infectious Waste Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the Clean Air Act (CAA) section 111(d)/129 
State Plan submitted by the Memphis-Shelby County Health Department 
(MSCHD) for the City of Memphis, Tennessee on February 16, 2006 (State 
Plan). The State Plan is for implementing and enforcing the Emissions 
Guidelines (EG) applicable to existing Hospital/Medical/Infectious 
Waste Incinerator (HMIWI) units that commenced construction on or 
before June 20, 1996.

DATES: This direct final rule will be effective August 10, 2009, unless 
EPA receives adverse comments by July 10, 2009. If adverse comments are 
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.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) by Docket ID No. EPA-R04-OAR-2008-0159 by one of the 
following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Agency Web site: http://docket.epa.gov/rmepub/RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Once in the system, select ``quick search,'' 
then key in the appropriate RME Docket identification number. Follow 
the online instructions for submitting comments.
    3. E-mail: <a href="/cdn-cgi/l/email-protection#0d616278647e23686a6469684d687d6c236a627b"><span class="__cf_email__" data-cfemail="513d3e2438227f3436383534113421307f363e27">[email protected]</span></a>.
    4. Fax: (404) 562-9095.
    5. Mail: ``EPA-R04-OAR-2008-0159,'' Air Toxics Assessment and 
Implementation Section, Air Toxics and Monitoring Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960.
    6. Hand Delivery or Courier: Deliver your comments to: Dr. Egide N. 
Louis, Air Toxics and Monitoring Branch, U.S. Environmental Protection 
Agency, Region 4, 12th Floor, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.
    Instructions: Direct your comments to RME ID No. EPA-R04-OAR-2008-
0159. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov 
or e-mail. The EPA RME Web site and the Federal regulations.gov Web 
site are ``anonymous access'' systems, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit

[[Page 27445]]

an electronic comment, EPA recommends that you include your name and 
other contact information in the body of your comment and with any disk 
or CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., 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 either electronically in RME 
or in hard copy at the Air Toxics Assessment and Implementation 
Section, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if 
at all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 
a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Dr. Egide Louis at (404) 562-9240.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 16, 2006, pursuant to the CAA sections 111 and 129, EPA 
promulgated new source performance standards (NSPS) applicable to new 
HMIWI units and EG applicable to existing HMIWI units. The NSPS and EG 
are codified at 40 CFR part 60, subparts Ce and Ec. Subparts Ce and Ec 
regulate the following: Particulate matter, opacity, sulfur dioxide, 
hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, 
mercury, and dioxins and dibenzofurans.
    For existing sources, CAA section 129(b)(2) requires States to 
submit to EPA for approval State Plans that implement and enforce the 
EG contained in 40 CFR part 60, subpart Ce. State Plans must be at 
least as protective as the EG, and become federally enforceable upon 
approval by EPA. Pursuant to subpart Ce, State Plans must include the 
following nine items: An inventory of affected HMIWI units; an 
inventory of emissions from affected HMIWI units; compliance schedules 
for each affected HMIWI unit; operator training and qualification 
requirements, a waste management plan, and operating limits for 
affected HMIWI units; performance testing, recordkeeping, and reporting 
requirements; certification that a public hearing was held; provision 
for State progress reports to EPA; identification of enforceable State 
mechanisms for implementing the EG; and a demonstration of the State's 
legal authority to carry out the State Plan. The procedures for 
adoption are codified in 40 CFR part 60, subpart B.
    In this action, EPA is approving the State Plan for existing HMIWI 
units submitted by MSCHD because it meets the requirements of 40 CFR 
part 60, subpart Ce.

II. Discussion

    MSCHD's 111(d)/129 State Plan for implementing and enforcing the EG 
for existing HMIWI units includes the following: Public Participation--
Demonstration that the Public Had Adequate Notice and Opportunity to 
Submit Written Comments and Attend Public Hearing; Emissions Standards 
and Compliance Schedules; Emission Inventories, Source Surveillance, 
and Reports; and Legal Authority. EPA's approval of the State Plan is 
based on our finding that it meets the nine requirements of 40 CFR part 
60, subpart Ce.
    Requirements (1) and (2): Inventory of affected HMIWI units and 
inventory of emissions. MSCHD submitted an emissions inventory of all 
designated pollutants for existing HMIWI units under their jurisdiction 
in the City of Memphis. This portion of the State Plan has been 
reviewed and approved as meeting the Federal requirements for existing 
HMIWI units.
    Requirement (3): Compliance schedules for each affected HMIWI unit. 
MSCHD submitted the compliance schedule for existing HMIWI units under 
their jurisdiction in the City of Memphis. This portion of the State 
Plan has been reviewed and approved as being at least as protective as 
Federal requirements for existing HMIWI units.
    Requirement (4): Emission limitations, operator training and 
qualification requirements, a waste management plan, and operating 
limits for affected HMIWI units. MSCHD adopted all emission standards 
and limitations applicable to existing HMIWI units. These standards and 
limitations have been approved as being at least as protective as the 
Federal requirements contained in subpart Ce for existing HMIWI units.
    Requirement (5): Performance testing, recordkeeping, and reporting 
requirements. The State Plan contains requirements for monitoring, 
recordkeeping, reporting, and compliance assurance. This portion of the 
State Plan has been reviewed and approved as being at least as 
protective as the Federal requirements for existing HMIWI units. The 
MSCHD State Plan also includes its legal authority to require owners 
and operators of designated facilities to maintain records and report 
on the nature and amount of emissions and any other information that 
may be necessary to enable MSCHD to judge the compliance status of the 
facilities in the State Plan. MSCHD also submitted its legal authority 
to provide for periodic inspection and testing, and provisions for 
making reports of existing HMIWI unit emissions data, correlated with 
emission standards that apply, available to the general public.
    Requirement (6): Certification that a public hearing was held. 
MSCHD provided certification that a public hearing was held on April 3, 
2003.
    Requirement (7): Provision for State progress reports to EPA. The 
MSCHD State Plan provides for progress reports of plan implementation 
updates to EPA on an annual basis. These progress reports will include 
the required items pursuant to 40 CFR part 60, subpart B. This portion 
of the State Plan has been reviewed and approved as meeting the Federal 
requirements for State Plan reporting.
    Requirement (8): Identification of enforceable State mechanisms for 
implementing the EG. An enforcement mechanism is a legal instrument by 
which MSCHD can enforce a set of standards and conditions. Pursuant to 
the authority of the Tennessee Code Annotated (T.C.A.) Section 68-201-
115, MSCHD is authorized to enforce regulations and/or ordinances for 
the control of air pollution, which are as stringent as the State of 
Tennessee's requirements. On March 2, 2004, the City of Memphis amended 
its Code of Ordinances to adopt Section 16-84.1, ``Emission Standards 
for Existing Hospital/Medical/Infectious Waste Incinerators (HMIWI),'' 
which is equivalent to 40 CFR part 60, subpart Ce. Therefore, MSCHD's 
mechanism for enforcing the standards and conditions of 40 CFR, part 
60, subpart Ce is the City of Memphis Code, Section 16-84.1. On the 
basis of this rule and the rules identified in Requirement (9) below, 
the State Plan is approved as being at least

[[Page 27446]]

as protective as Federal requirements for existing HMIWI units.
    Requirement (9): A demonstration of the State's legal authority to 
carry out the State Plan. MSCHD demonstrated legal authority to adopt 
emissions standards and compliance schedules for designated facilities; 
authority to enforce applicable laws, regulations, standards, and 
compliance schedules, and authority to seek injunctive relief; 
authority to obtain information necessary to determine whether 
designated facilities are in compliance with applicable laws, 
regulations, standards, and compliance schedules, including authority 
to require recordkeeping, make inspections, and conduct tests at 
designated facilities; authority to require owners or operators of 
designated facilities to install, maintain and use emission monitoring 
devices and to make periodic reports to MSCHD on the nature and amount 
of emissions from such facilities; and authority to make emissions data 
publicly available.
    MSCHD cites the following references for the legal authority noted 
above: Adopt emission standards and compliance schedules--T.C.A. 
Section 68-201-115(b)(3), and the City of Memphis Code 16-84.1(c) and 
16-84.1(d); enforce applicable laws, regulations, standards, and 
compliance schedules, and seek injunctive relief--T.C.A. 68-201-105, 
T.C.A. 68-201-108, T.C.A. 68-201-109, T.C.A. 68-201-110, and T.C.A. 68-
201-112, and the City of Memphis Code 16-84.1; obtain information 
necessary to determine compliance--T.C.A. Section 68-201-105 and T.C.A. 
Section 68-201-115(b)(3); require recordkeeping, make inspections and 
conduct tests--City of Memphis Code 16-84.1(g), and 16-84.1(i), and 
T.C.A. 68-201-107; require the use of monitors and require emission 
reports of owners and operators--City of Memphis Code 16-84.1(h) and 
City of Memphis Code 16-84.1(i); and make emissions data publicly 
available--City of Memphis Code 16-84.1(i).
    EPA is approving the State Plan for existing HMIWI units submitted 
by MSCHD because it meets the nine requirements of 40 CFR part, 60, 
subpart Ce.

III. Final Action

    In this action, EPA approves the 111(d)/129 State Plan submitted by 
MSCHD for the City of Memphis to implement and enforce 40 CFR part 60, 
subpart Ce, as it applies to existing HMIWI units. EPA is publishing 
this rule without prior proposal because EPA 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 State Plan should adverse comments be 
filed. This rule will be effective August 10, 2009, without further 
notice unless the Agency receives adverse comments by July 10, 2009.
    If EPA receives such comments, then EPA will publish a document 
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. EPA will not 
institute a second comment period on this action. Parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, this action is effective August 10, 2009 and no 
further action will be taken on the proposed rule. Please note that if 
we receive adverse comment on an amendment, paragraph, or section of 
this rule, and if that provision may be severed from the remainder of 
the rule, we may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
rule 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 approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator 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 rule approves pre-existing requirements under State law and 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 (Pub. L. 104-4).
    This rule 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 rule 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 rule merely approves a State rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule 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.
    In reviewing 111(d)/129 plan submissions, EPA's role is to approve 
State choices, provided that they meet the criteria of the Clean Air 
Act. 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 disapprove a 111(d)/129 plan submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/
129 plan submission 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 rule does not impose an information collection burden 
under the provisions of Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register.

[[Page 27447]]

This rule 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 within 60 days from the 
effective date of this rule. 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 rule 
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.

    Dated: April 10, 2009.
Beverly H. Banister,
Acting, Regional Administrator, Region 4.


0
40 CFR part 62, subpart RR, is amended as follows:

PART 62--[AMENDED]

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

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

Subpart RR--Tennessee

0
2. Section 62.10626 is amended by adding paragraphs (b)(6) and (c)(3) 
to read as follows:


Sec.  62.10626  Identification of plan.

* * * * *
    (b) * * *
    (6) City of Memphis Implementation Plan: Federal Emission 
Guidelines Hospital/Medical/Infectious Waste Incinerators (HMIWI), 
submitted on February 16, 2006, by the Memphis and Shelby County Health 
Department.
    (c) * * *
    (3) Existing Hospital/Medical/Infectious Waste Incinerators

0
3. Part 62 is amended by adding a new undesignated center heading to 
subpart RR and a new Sec.  62.10632 to read as follows:

Air Emissions From Existing Hospital/Medical/Infectious Waste 
Incinerators (HMIWI)--Section 111(d)/129 Plan


Sec.  62.10632  Identification of sources.

    The Plan applies to all existing HMWI facilities at St. Jude 
Children's Hospital in the City of Memphis, for which construction was 
commenced on or before June 20, 1996.

[FR Doc. E9-13595 Filed 6-9-09; 8:45 am]
BILLING CODE 6560-50-P


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