[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Rules and Regulations]
[Pages 2543-2546]
[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/

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:<PHONE_NUMBER>, 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

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

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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