[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62379-62381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25291]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV048-6020a; FRL-7381-7]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia, Regulation To Prevent and Control Air Pollution From the 
Operation of Coal Preparation Plants, Coal Handling Operations and Coal 
Refuse Disposal Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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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 air pollution from the operation of 
coal preparation plants, coal handling operations and coal refuse 
disposal areas in West Virginia. EPA is approving this revision in 
accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on December 6, 2002 without further 
notice, unless EPA receives adverse written comment by November 6, 
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 David L. Arnold, 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; 
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

[[Page 62380]]

Department of Environmental Protection, Division of Air Quality, 7012 
MacCorkle Avenue, SE., Charleston, WV 25304-2943.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected]. Please note that while questions may be 
posed via telephone and e-mail, formal comments must be submitted in 
writing, as indicated in the ADDRESSES section of this document.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 21, 2000, West Virginia submitted a formal revision to 
its State Implementation Plan (SIP). The SIP revision is a regulation 
(45CSR5) to prevent and control air pollution from the operation of 
coal preparation plants, coal handling operations and coal refuse 
disposal areas in West Virginia.
    There are two revisions of 45CSR5 that bring all the of the West 
Virginia Office of Air Quality coal related rules into one rule. The 
first revisions of 45CSR5, that set standards for particulate matter 
weight and visible emissions from coal preparation plants and coal 
handling operations, went to public hearing on August 12, 1994 and 
became effective May 1, 1995. The rule also established monitoring, 
recordkeeping, and reporting requirements and requires that each owner/
operator obtain an annual operating permit from the West Virginia 
Office of Air Quality without which the plant cannot be operated.
    The second revisions are to streamline the requirements of 45CSR5 
and to incorporate the requirements for coal refuse sites that went to 
public hearing on July 19, 1999 and became effective August 31, 2000.

Summary of SIP Revision

    (A) Revisions to modify the definitions of the following: (1) 
Handling operation--to entail similar activities at facilities less 
than 200 tons of coal per day, (2) coal preparation plants--to conform 
to the New Source Performance Standards (NSPS) definition in Subpart Y 
of 40 CFR part 60, and (3) fugitive dust and fugitive dust control 
system--to clarify that water or chemical suppression are recognized as 
emission control measures.
    (B) Revisions to incorporate the requirements for coal refuse 
sites: (1) Definitions of coal refuse, coal refuse disposal area, coal 
refuse pile, and operation of a coal refuse disposal area, (2) 
standards for coal refuse disposal areas, and (3) burning coal refuse 
disposal areas.
    (C) Revisions to the operating permit requirements to apply only to 
coal preparation plants. The revised rule provides that coal 
preparation plants requiring a Title V operating permit would only have 
to obtain the Title V permit. For owners or operators of a coal 
preparation plant and for coal handling operations that choose a 
general permit under 45CSR13, would only be required to submit the 
required registration and obtain coverage under the general permit.
    (D) Revisions to clarify thermal dryers constructed or modified 
after October 24, 1974 are subject to the NSPS under 40 CFR part 60.
    (E) Revisions to clarify that 45CSR17 (fugitive particulate matter 
emission requirements) is not applicable to 45CSR5 sources.
    (F) Revisions correcting Code citations and modifying definitions 
to conform 45CSR5 to the 1994 statutory changes which incorporated the 
West Virginia Office of Air Quality into the West Virginia Division of 
Environmental Protection, Bureau of Environment.
    (G) Revisions to clarify that continuous opacity monitoring data 
may be used to determine opacity violations or compliance not 
withstanding Method 9 of 40 CFR part 60, Appendix A.
    These revisions strengthen the SIP by providing control strategies 
of coal plants, and are consistent with the NSPS requirements. The 
structure of the rule is also consistent with the West Virginia 
organization.

II. Final Action

    EPA is approving the revisions of 45CSR5, ``To Prevent and Control 
Air Pollution from the Operation of Coal Preparation Plants, Coal 
Handling Operations and Coal Refuse Disposable Areas,'' submitted by 
West Virginia Division of Environmental Protection 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 December 6, 2002 without further 
notice unless EPA receives adverse comment by November 6, 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. 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.

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

[[Page 62381]]

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 6, 2002. 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 prevent and control air pollution from 
the operation of coal preparation plants, coal handling operations, and 
coal refuse disposal areas in West Virginia, 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: September 13, 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)(47) to read 
as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *
    (47) Revisions toWest Virginia Regulations to prevent and control 
air pollution from the operation of coal preparation plants, coal 
handling operations, and coal refuse disposal areas, 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 to EPA transmitting the regulation to prevent 
and control air pollution from the operation of coal preparation 
plants, coal handling operations, and coal refuse disposal areas.
    (B) Revisions to Title 45, Series 5, 45CSR5, To Prevent and Control 
Air Pollution from the Operation of Coal Preparation Plants, Coal 
Handling Operations and Coal Refuse Disposal Areas, effective August 
31, 2000.
    (ii) Additional Material.
    (A) Letter of November 21, 2000 from the West Virginia Division of 
Environmental Protection to EPA transmitting materials related to 
revisions of 45CSR5.
    (B) Remainder of the State submittal pertaining to the revisions 
listed in paragraph (c)(47)(i) of this section.

[FR Doc. 02-25291 Filed 10-4-02; 8:45 am]
BILLING CODE 6560-50-P