03-20304. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Regulation To Prevent and Control Particulate Air Pollution From Combustion of Fuel in Indirect Heat Exchangers

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to the West Virginia State Implementation Plan (SIP). The SIP revision is a regulation to prevent and control particulate air pollution from combustion of fuel in indirect heat exchangers such as boilers. EPA is approving these revisions in accordance with the requirements of the Clean Air Act.

DATES:

This rule is effective on October 10, 2003 without further notice, unless EPA receives adverse written comment by September 10, 2003. 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 Morris, Chief, Air Quality Planning Branch, 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Electronic comments should be sent either to [e-mail] or to http://www.regulations.gov,, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in Part III of the Supplementary Information section. 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, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460; and West Virginia Department of Environmental Protection, Division of Air Quality, 7012 MacCorkle Avenue, SE., Charleston, WV 25304-2943.

FOR FURTHER INFORMATION CONTACT:

Kathleen Anderson, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

 

I. Background

On March 29, 1996 and September 21, 2000, West Virginia submitted revisions to a regulation (45CSR2) to prevent and control particulate matter air pollution from combustion of fuel in indirect heat exchangers as formal revisions to its State Implementation Plan (SIP). The first SIP revision went to public hearing on November 29, 1994 and became effective on May 1, 1995. The second SIP revision went to public hearing on July 19, 1999 and became effective on August 31, 2000. These SIP revisions update definitions, clarify and streamline the opacity standards for visible emissions for soot blowing operations, streamline monitoring, reporting and recordkeeping requirements and provide for alternative limitations for visible emissions. Since the most recent of the two SIP revisions incorporates all of the changes from the earlier SIP revision, EPA will incorporate by reference the version of 45CSR2 submitted to EPA on September 21, 2000 into the SIP.

II. Summary of SIP Revision

The following summary discusses the substantive revisions to West Virginia's regulation 45CSR2 since the SIP was revised on August 14, 1983. A detailed summary and discussion of all of the revisions are contained in a Technical Support Document (TSD) prepared for this rulemaking action and will not be restated here. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

(A) The following definitions were revised: (1) Definitions of “Commission”, “Ringelmann Smoke Chart”, and “Kanawha Valley Air Basin”, were deleted, (2) “Director” was modified to include persons delegated authority by the Director; (3) “Person” was modified to include the State of West Virginia and the United States, and (4) Definitions for “ASTM”, “Control Equipment”, “Discharge Point”, “Heat Input”, “Laboratory Official”, “ Malfunction”, “Normal Operation”, “Owner or Operator”, “Prefilter”, “Primary Filter”, “Probe”, “Sampling Plane”, “Shutdown”, “Start-up”, “Test Team Supervisor”, “Distillate Oil”, “Indirect Heat Exchanger”, “Natural Gas”, “Opacity”, “Process Heater”, “Residual Oil”, “Shipment”, “Wet Scrubber System” and “Wood” were added.

(B) In general, West Virginia made revisions to the visible emissions standard that substantially strengthened and clarified opacity limitations. Visible emissions from fuel burning units must be no greater than ten percent opacity on a six minute block average. An exemption from this standard is provided during soot blowing operations and fire box cleaning where a source can demonstrate that compliance cannot be practically achieved. In no event, however, may the opacity be greater than 30 percent for a total of six, six minute time periods in a calendar day. EPA interprets these exemption provisions to place the burden on the source to document that the exemption applies. Absent a formal determination from the Director that is based on information provided by the source, the exemption cannot be applied.

West Virginia's regulation 45CSR2 also provides a process for sources to request alternative visible emission standards where it is technologically or economically infeasible for the source to comply with the presumptive standard. In no event, however, may a fuel burning unit exceed 20 percent opacity. Section 110(a)(2)(A) of the Clean Air Act (CAA) requires SIPs to include federally enforceable emission limitations. West Virginia's provisions for alternative visible emission standards meets this requirement only to the extent that the regulation sets an upper limit on all alternative standards. However, the West Virginia Department of Environmental Protection (WVDEP) submitted a letter to EPA on March 19, 2003, clarifying that all alternative visible emission standards will be established as specific conditions of permits issued in accordance with federally enforceable permitting programs. The letter states that prior to issuing such permits, the WVDEP shall submit them to EPA for review. This letter has been included in the administrative record for this action and provides certainty of EPA review of alternative emission standards.

(C) The SIP revision substantially revises and enhances the testing, monitoring, recordkeeping and reporting requirements of 45CSR2. The regulation now requires that testing be conducted using EPA-approved methods and requires sources to submit monitoring plans for each emission unit that includes how emissions are to be measured, monitoring of pollution control equipment and parametric monitoring as appropriate. Sources using continuous opacity monitoring systems (COMS) presumptively meet the requirement for a monitoring plan.

The revised regulation also provides that excursions outside of the operating parameters associated with control equipment and established in a monitoring plan will not necessarily constitute a violation. On March 19, 2003, the WVDEP submitted a letter to EPA outlining the manner in which the State will implement 45CSR2, including this provision. It states that “WVDEP interprets this provision to mean that the source has the burden of proof in demonstrating that an excursion of an operating parameter is not a violation of the visible emission standards under section 3 of 45CSR2. Visible emissions monitoring plans involving primarily the recording of parametric data require visible emissions observations to be made and recorded when an excursion of any operating parameter exceeds one hour as detailed in interpretative rule 45CSR2A * * * Such opacity tests may be used to show that the parametric excursion did not result in opacity violations or may serve to verify that opacity violations actually occurred. WVDEP or EPA could enforce against the observed opacity violations in conjunction with the parametric excursion.” This letter is included in the administrative record for this rulemaking action.

(D) The revisions to West Virginia's regulation 45CSR2 include revised exemptions to the presumptive visible emissions standard during periods of start-up, shutdown, and malfunction. In order to qualify for an exemption during these periods, the source must demonstrate that the fuel burning unit and associated air pollution control equipment have been maintained and operated in a manner consistent with good air pollution control practices for minimizing emissions.

Generally, EPA requires that sources meet, without interruption, applicable limitations and control requirements. Where exemptions are allowed, the source must prove that an exemption applies and that the violation could not have been prevented. The Director may determine whether or not the exemption should be applied based on “information available to the Director”, which includes, but is not limited to monitoring results, visible emissions observations, review of operating and maintenance procedures and inspection of the source. Failure of a source to provide documentation that it has conducted maintenance operations in a manner consistent with good air pollution control practices should not prevent either the State or EPA from exercising its enforcement authority.

Specifically with respect to the malfunction exemption, EPA interprets West Virginia's regulation to mean that the source has the burden to prove that the malfunction was caused by circumstances beyond the control of the source and that it could not have been prevented through the installation of proper control equipment or proper operation and maintenance. Furthermore, the source must be able to demonstrate that the malfunction was not the result of an activity that could have been foreseen and avoided. With respect to high opacity measurements during start-up and shutdown operations, the source has the same burden to prove that the violation could not have been avoided through installation of the proper control equipment or proper operation and maintenance. For all exemptions claimed by a source, the WVDEP and EPA each have the authority to determine whether or not an exemption applies under a SIP approved regulation.

West Virginia's regulation 45CSR2 also states that a malfunction constitutes an affirmative defense for any action brought for noncompliance with the weight emissions standard (particulate matter standard) if the owner/operator can demonstrate that it has met the requirement to maintain and operate the fuel burning unit(s), including associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions. Although this provision does not exempt fuel burning units from the particulate matter standard during a malfunction, it does attempt to define the State's enforcement discretion when a malfunction occurs. EPA agrees that enforcement discretion may be appropriate for events such as a malfunction, where EPA concurs that a malfunction has occurred. However, EPA's approval of this rule as a SIP revision does not constitute advance approval of any exemptions, including malfunctions, or advance enforcement discretion which may be claimed under West Virginia's regulations. EPA may take independent enforcement action to the extent allowed by section 113 of the CAA and any other applicable provisions of the CAA, notwithstanding the issuance of an exemption or the exercise of enforcement authority by the State.

(E) Variances from the visible emissions standards are provided by West Virginia's regulation 45CSR2 in the event of unavoidable fuel shortages of fuel having the characteristics needed to comply with the visible emissions standards, for emergency situations that pose a threat to public health and welfare and to fuel burning units that use a flue gas desulphurization system when the latter system must be bypassed for planned or unplanned maintenance. The variance is limited in that it sets an alternative limit on opacity and, in the case of emergency situations, requires a demonstration that the particulate matter standards are not exceeded.

(F) A new section titled “Inconsistency Between Rules” allows the Director to determine applicability of conflicting rules based on imposing the more stringent provisions.

These revisions strengthen the SIP by clarifying and updating definitions and updating opacity standards. The revisions also require EPA review of alternative emission limits and establish acceptable periods when emission standards do not apply.

III. Final Action

EPA is approving the revisions to 45CSR2, “To Prevent and Control Particulate Air Pollution from Combustion of Fuel in Direct Heat Exchangers”, submitted by West Virginia on September 21, 2000. 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 October 10, 2003 without further notice unless EPA receives adverse comment by September 10, 2003. 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. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number WV041/046-6015a in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.

i. E-mail. Comments may be sent by electronic mail (e-mail) to [e-mail], attention WV041/046-6015a. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov , EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov,, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Submittal of CBI Comments

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

Considerations When Preparing Comments to EPA

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

IV. Regulatory Assessment 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 (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 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 October 10, 2003. 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, to approve West Virginia's Regulation 45CSR2, 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
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Dated: June 30, 2003.

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 paragraph (c)(56) to read as follows:

§ 52.2520

Identification of plan.

* * * * *

(c) * * *

(56) Revisions to West Virginia's Regulations to prevent and control particulate air pollution from combustion of fuel in indirect heat exchangers, submitted on September 21, 2000 by the West Virginia Division of Environmental Protection:

(i) Incorporation by reference.

(A) Letter of September 21, 2000 from the West Virginia Division of Environmental Protection.

(B) Revisions to Title 45, Series 2, 45 CSR2, To Prevent and Control Particulate Air Pollution from Combustion of Fuel in Indirect Heat Exchangers, effective August 31, 2000.

(ii) Additional Material.

(A) Letter of March 19, 2003 from the West Virginia Division of Environmental Protection to EPA providing clarification on the interpretation and implementation of certain regulations on air pollution control.

(B) Letter of March 29, 1996 from the West Virginia Division of Environmental Protection to EPA transmitting the regulation to prevent and control particulate air pollution from combustion of fuel in indirect heat exchangers.

(C) Remainder of the State submittals pertaining to the revisions listed in paragraph (c)(56)(i) of this section.