[Federal Register Volume 64, Number 133 (Tuesday, July 13, 1999)]
[Rules and Regulations]
[Pages 37681-37683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17626]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WV016-6010a; FRL-6372-3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Approval of Revisions to Coal Preparation Plants and
Coal Handling Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on revisions to the West
Virginia State Implementation Plan (SIP). The revisions concern
regulations for coal handling and preparation facilities. New
permitting, monitoring, reporting, and testing requirements are
included for these facilities and new emission limits are included for
facilities that are located in the Follansbee particulate matter
nonattainment area. EPA is approving these revisions to West Virginia's
regulation 45CSR5 ``To Prevent and Control Air Pollution From the
Operation of Coal Preparation Plants and Coal Handling Operations'' in
accordance with the requirements of the Clean Air Act.
DATES: This rule is effective on September 13, 1999 without further
notice, unless EPA receives adverse written comment by August 12, 1999.
If EPA receives such comments, it 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: Written comments should be mailed to Makeba A. Morris,
Chief, Technical Assessment Branch, Mailcode 3AP22, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and West Virginia
Department of Environmental Protection, Office of Air Quality, 1558
Washington Street, East, Charleston, West Virginia 25311.
FOR FURTHER INFORMATION CONTACT: Ruth E. Knapp, (215) 814-2191, or by
e-mail at knapp.ruth@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1991, EPA received an attainment plan from West
Virginia for the Follansbee PM-10 nonattainment area.1 The
plan consisted of several portions including bilateral consent orders
between the State of West Virginia and six companies in the Follansbee
area, emergency revisions to West Virginia Regulation 5 ``To Prevent
and Control Air Pollution from the Operation of Coal Preparation
Plants'', and air quality modeling. EPA advised the State that the
revisions to Regulation 5 were not approvable as a SIP revision because
West Virginia's emergency rules, are by State law, temporary. On August
10, 1993, West Virginia submitted formal State Implementation Plan
(SIP) revisions to EPA of the permanently adopted revisions to
Regulation 5. The SIP revision provides new emission limits and
operating practices for coal preparation and handling facilities in the
Follansbee, West Virginia PM-10 nonattainment area and new permitting,
monitoring, reporting and testing requirements for coal handling
facilities statewide.
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\1\ The Follansbee particulate matter nonattainment area is that
part of Brooke County, West Virginia west of State Route 2, north of
an eastward extension of the southern boundary of Steubenville
Township, Ohio, and south of the Market Street Bridge. There is only
one coal preparation facility in the Follansbee area, and it has
been inactive for several years.
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Summary of the SIP Revision
The revisions to Regulation 5 are scattered throughout the rule.
The major changes to the rule are provisions for the following:
(1) Special limits on emissions from coal handling operations and
coal preparation plants in the Follansbee PM-10 nonattainment area,
including an emission limit of 0.001 pounds of particulate matter per
ton of coal crushed or screened; a limit of 5% opacity from any
crushing, screening, or conveying operation; and a plan to control
fugitive dust from haul roads, pile areas, berms, and plant access
roads;
(2) A requirement for the continuous measurement of exit gas
temperature or scrubber pressure drop and water pressure at thermal
drier units statewide; and
(3) Revisions to reporting and testing requirements, and provisions
related to granting variances.
These regulations went into effect in the State of West Virginia in
1993. EPA is publishing this revision to West Virginia's Regulation 5
without prior proposal because the Agency views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of today's Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective on September 13, 1999 without further notice unless EPA
receives adverse comment by August 12, 1999. If EPA receives adverse
comment, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action.
[[Page 37682]]
Any parties interested in commenting must do so at this time.
II. Final Action
EPA is approving the revisions to West Virginia Regulation 5 ``To
Prevent and Control Air Pollution from the Operation of Coal
Preparation Plants and Coal Handling Facilities''. These revisions
strengthen the State Implementation Plan by providing additional
controls for particulate matter.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under 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 EPA complies by consulting, E.O. requires EPA to
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
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has 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 final rule is not subject
to E.O. 13045 because it is not an economically significant regulatory
action as defined by E.O. 12866, and it does not address an
environmental health or safety risk that would have a disproportionate
effect on children.
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 EPA complies by
consulting, Executive Order 13084 requires EPA to 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 a 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). Moreover, due to the nature of the Federal-State
relationship under the Clean Air Act, preparation of a 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
[[Page 37683]]
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 to approve the revisions to West
Virginia regulation 45 CSR 5 must be filed in the United States Court
of Appeals for the appropriate circuit by September 13, 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, Particulate matter, Reporting and recordkeeping
requirements.
Dated: June 29, 1999.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
40 CFR part 52 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 XX--West Virginia
2. Section 52.2520 is amended by adding paragraphs (c)(42) to read
as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
(42) Revisions to the West Virginia Regulations for coal
preparation and handling facilities 45CSR5 submitted on August 10, 1993
by the West Virginia Department of Commerce, Labor and Environmental
Resources:
(i) Incorporation by reference.
(A) Letter of August 10, 1993 from the West Virginia Department of
Commerce, Labor, and Environmental Resources transmitting revisions to
West Virginia's regulation 45CSR5 ``To Prevent and Control Air
Pollution From the Operation of Coal Preparation Plants and Coal
Handling Operations''.
(B) Revisions to West Virginia regulation 45CSR5 regarding coal
preparation and handling plants specifically: Revisions to 45CSR5 which
require specific emission limits on particulate matter emissions at
coal preparation and handling facilities in the Follansbee PM10
nonattainment area, monitoring of thermal driers and control equipment
statewide, revised permitting, testing and reporting requirements.
(ii) Additional Material--Remainder of the August 10, 1993
submittal on 45CSR5.
[FR Doc. 99-17626 Filed 7-12-99; 8:45 am]
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