[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 [email protected].

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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