[Federal Register Volume 63, Number 223 (Thursday, November 19, 1998)]
[Rules and Regulations]
[Pages 64188-64191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30847]


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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.

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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.


[[Page 64189]]


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:

I. 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.

II. 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.

III. Administrative Requirements

A. 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.''

B. 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.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997),

[[Page 64190]]

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.

D. 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.

E. 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).

F. 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.

G. 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).

H. Petitions for Judicial Review

    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 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]

    1. The authority citation for Part 52 continues to read as follows:

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

Subpart WW--Washington

    2. 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.

[[Page 64191]]

    (A) Puget Sound Air Pollution Control Agency, Notice of 
Construction No. 7216, Date: Nov 25, 1997.

[FR Doc. 98-30847 Filed 11-18-98; 8:45 am]
BILLING CODE 6560-50-P