02-25852. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; To Prevent and Control Air Pollution From the Operation of Hot Mix Asphalt Plants

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the West Virginia State Implementation Plan (SIP). These revisions establish emission limitations for hot mix asphalt plants. The revision to this rule will streamline the requirements to specify standards for opacity and particulate test methods. This revision will also clarify the relationship between the New Source Performance Standards and the West Virginia Office of Air Quality's permit requirements for hot mix asphalt plants. EPA is approving this revision to the SIP in accordance with the Clean Air Act.

DATES:

This rule is effective on December 10, 2002 without further notice, unless EPA receives adverse written comment by November 12, 2002. 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 Walter K. Wilkie, Acting Branch Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, 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 and West Virginia Department of Environmental Protection, Division of Air Quality, 7012 MacCorkle Avenue, SE., Charleston, WV 25304-2943.

FOR FURTHER INFORMATION CONTACT:

Janice Lewis, [phone], or by e-mail at [e-mail]. Please note any comments on this rule must be submitted in writing, as provided in the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Background

On September 21, 2000, the West Virginia Division of Environmental Protection submitted a revision to its SIP to address the requirements for the Operation of Hot Mix Asphalt Plants. The revision consists of the adoption of Rule 45CSR3—To Prevent and Control Air Pollution from the Operation of Hot Mix Asphalt Plants.

A. Summary of the SIP Revisions

This revision restructures and reorganizes Regulations 45CSR3, governing the prevention and control air pollution from the operation of hot mix asphalt plants. This revision specifies standards for opacity and particulate test methods. This revision also changes the opacity standard during start-up and shutdown from 60% to 40% with averaging of emissions using approved EPA test methods.

B. EPA's Evaluation of the SIP Revisions

The EPA has determined that this revision to 45CSR3—To Prevent and Control Air Pollution From the Operation of Hot Mix Asphalt Plants meet all Federal criteria for approval.

II. Final Action

EPA is approving West Virginia's Rule 45CSR3, submitted as a SIP revision on September 21, 2000, into the West Virginia SIP.

EPA is publishing this rule 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 December 10, 2002 without further notice unless EPA receives adverse comment by November 12, 2002. 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. Any parties interested in commenting must do so at this time.

III. Administrative Requirements

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action 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 (Public Law 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 action 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 action 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 SIP 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 SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP 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 the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. 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).

C. 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 December 10, 2002. Filing a petition for reconsideration by the Administrator of this final rule approving revisions to West Virginia's regulation to prevent and control air pollution from the operation of hot mix asphalt plants 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: September 30, 2002.

Donald S. Welsh,

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 paragraph (c)(48) to read as follows:

§ 52.2520

Identification of plan.

* * * * *

(c) * * *

(48) Revisions to West Virginia Rule 45CSR3 submitted on September 21, 2000, by the West Virginia Department of Environmental Protection:

(i) Incorporation by reference.

(A) Letter of September 21, 2000, from the Secretary of the West Virginia Department of Environmental Protection, pertaining to Regulation 45CSR3—To Prevent and Control Air Pollution from the Operating of Hot Mix Asphalt Plants.

(B) Revised Regulation 45CSR3, effective August 31, 2000.

(ii) Additional Material—Other materials submitted by the State of West Virginia in support of and pertaining to Rules 45CSR3 listed in paragraph (c)(48)(i)of this section.