[Federal Register Volume 59, Number 75 (Tuesday, April 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9326]


[[Page Unknown]]

[Federal Register: April 19, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV7-1-5573; A-1-FRL-4840-6]

 

Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Good Engineering Practice for Stack Heights

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State implementation plan (SIP) revision 
submitted by the State of West Virginia. This revision establishes and 
requires that the degree of emission limitation required for the 
control of any air pollutant is not affected by that portion of the 
stack height which exceeds good engineering practice (GEP) or by any 
other dispersion technique. The revision is consistent with the stack 
height provisions under EPA's ``Requirements for Preparation, Adoption, 
and Submittal of Implementation Plans--Control Strategy''. The intended 
effect of this action is to approve a SIP revision consisting of a 
stack height regulation adopted by the State of West Virginia. The 
State adopted this regulation to conform to the July 8, 1985 Federal 
promulgation of a revised stack height regulation. This action is being 
taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This action will become effective June 20, 1994, unless 
notice is received by May 19, 1994 that adverse or critical comments 
will be received. If the effective date is delayed, timely notice will 
be published in the Federal Register.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of 
the documents relevant to this action are available for public 
inspection during normal business hours at the Air, Radiation, and 
Toxics Division, U.S. Environmental Protection Agency, Region III, 841 
Chestnut Building, Philadelphia, PA 19107; Jerry Kurtzweg ANR-443, U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460; and West Virginia Office of Air Quality, 1558 Washington Street, 
East, Charleston, West Virginia 25311.

FOR FURTHER INFORMATION CONTACT: David J. Campbell, Air and Radiation 
Programs Branch, Environmental Protection Agency, Region III, 841 
Chestnut Building, Philadelphia, PA 19107; 215 597-9781.

SUPPLEMENTARY INFORMATION: On April 2, 1990, the West Virginia 
Department of Commerce, Labor, and Environmental Resources submitted a 
revision to its State implementation plan (SIP) to incorporate a 
regulation for good engineering practice (GEP) as it applies to stack 
heights. The revision consists of West Virginia Air Pollution Control 
Commission (WVAPCC) Regulation 20--``Good Engineering Practice as 
Applies to Stack Heights'' (45CSR20), adopted by the West Virginia 
Legislature on April 8, 1989 and effective July 14, 1989. The SIP 
revision is consistent with EPA's revised stack height regulation as 
published in the July 8, 1985 Federal Register (See 50 FR 27906).

Summary of SIP Revision

    On July 8, 1985, EPA promulgated a revised stack height regulation 
to ensure that the degree of emission limitation required for the 
control of any pollutant under an applicable SIP is not affected by 
that portion of any stack height which exceeds GEP or by any other 
dispersion technique (See 50 FR 27892). The regulation updated the rule 
promulgated on February 8, 1982 at 47 FR 5864.
    On April 2, 1990, the State of West Virginia responded to the July 
8, 1985 Federal Register by submitting a SIP revision consisting of 
WVAPCC Regulation 20--``Good Engineering Practice as Applies to Stack 
Heights''. This regulation is consistent with EPA's stack height 
regulation.

EPA Evaluation

    EPA has evaluated West Virginia's SIP revision request and 
concluded the following: (1) The stack height requirements will not 
adversely affect West Virginia's ability to enforce the current 
applicable emission limitations which adequately protect the national 
ambient air quality standards (NAAQS); (2) the stack height 
requirements are clearly enforceable; and (3) the applicable 
requirements of 40 CFR part 51 have been met. A more detailed 
evaluation is provided in a Technical Support Document available upon 
request from the Regional EPA office listed in the ADDRESSES section of 
this document.
    EPA is approving this SIP revision without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. These revisions to West Virginia's regulations 
have been effective in the State since July 14, 1989. This action will 
be effective June 20, 1994 unless, by May 19, 1994, notice is received 
that adverse or critical comments will be submitted. If such notice is 
received, this action will be withdrawn before the effective date by 
simultaneously publishing two subsequent notices. One notice will 
withdraw the final action and another will begin a new rulemaking by 
announcing a proposal of the action and establishing a comment period. 
If no such comments are received, the public is advised that this 
action will be effective on June 20, 1994.

Final Action

    EPA is approving the WVAPCC Regulation 20--``Good Engineering 
Practice as Applies to Stack Heights'' (45CSR20) submitted by the State 
of West Virginia as a revision to the West Virginia SIP. EPA's review 
of West Virginia's stack height regulation indicates that it conforms 
to the requirements of 40 CFR parts 51 and 52, and to the July 8, 1985 
Federal promulgation of a revised stack height regulation.
    The Agency has reviewed this request for revision of the Federally-
approved State implementation plan for conformance with the provisions 
of the 1990 Amendments enacted on November 15, 1990. The Agency has 
determined that this action conforms with those requirements 
irrespective of the fact that the submittal preceded the date of 
enactment.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for revision to any 
State implementation plan. Each request for revision to the State 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    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 impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. 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 SIP's on such grounds. Union Electric Co. v. 
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    This SIP revision establishing good engineering practice as applies 
to stack heights in West Virginia has been classified as a Table 3 
action for signature by the Acting Regional Administrator under the 
procedures published in the Federal Register on January 19, 1989 (54 FR 
2214-2225), as revised by an October 4, 1993 memorandum from Michael H. 
Shapiro, Acting Assistant Administrator for Air and Radiation. On 
January 6, 1989, the Office of Management and Budget (OMB) waived Table 
2 and Table 3 SIP revisions from the requirements of section 3 of 
Executive Order 12291 for a period of two years. EPA has submitted a 
request for a permanent waiver for Table 2 and 3 SIP revisions. OMB has 
agreed to continue the waiver until such time as it rules on EPA's 
request. This request is still applicable under Executive Order 12866, 
which superseded Executive Order 12291 on September 30, 1993.
    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 June 20, 1994. 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, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: February 9, 1994.
Stanley L. Laskowski,
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. 7401-7671q.

Subpart XX--West Virginia

    2. Section 52.2520 is amended by adding paragraph (c)(27) to read 
as follows:


Sec. 52.2520  Identification of plan.

* * * * *
    (c) * * *
    (27) Revision to the State implementation plan consisting of a good 
engineering practice (GEP) for stack heights regulation as submitted by 
the Secretary, West Virginia Department of Commerce, Labor, and 
Environmental Resources on April 2, 1990:
    (i) Incorporation by reference.
    (A) Letter from the Secretary, Department of Commerce, Labor, and 
Environmental Resources dated April 2, 1990 submitting a revision to 
the West Virginia State implementation plan.
    (B) Regulation 20 (45CSR20)--``Good Engineering Practice as Applies 
to Stack Heights'' adopted by the State of West Virginia on April 8, 
1989. The regulation became effective on July 14, 1989.
    (ii) Additional materials.
    (A) Remainder of the State implementation plan revision submitted 
by the West Virginia Department of Commerce, Labor, and Environmental 
Resources on April 2, 1990.

[FR Doc. 94-9326 Filed 4-18-94; 8:45 am]
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