[Federal Register Volume 67, Number 198 (Friday, October 11, 2002)]
[Rules and Regulations]
[Pages 63270-63271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25852]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV 047--6021a; FRL-7391-3]


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.

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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, (215) 814-2185, or by e-
mail at [email protected]. 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.

[[Page 63271]]

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:


Sec.  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.

[FR Doc. 02-25852 Filed 10-10-02; 8:45 am]
BILLING CODE 6560-50-P