[Federal Register Volume 68, Number 27 (Monday, February 10, 2003)]
[Rules and Regulations]
[Pages 6627-6629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2938]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV058-6024a; FRL-7442-1]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Regulation To Prevent and Control Air Pollution From 
Combustion of Refuse

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 amends 
a regulation to prevent and control air pollution from combustion of 
refuse. EPA is approving these revisions in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on April 11, 2003 without further notice, 
unless EPA receives adverse written comment by March 12, 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 Kathleen Anderson, Air 
Quality Planning and Information Services Branch, 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 Department of Environmental 
Protection, Division of Air Quality, 7012 MacCorkle Avenue, SE., 
Charleston, WV 25304-2943.

FOR FURTHER INFORMATION CONTACT: Kathleen Anderson, (215) 814-2173, 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 and on September 12, 2001, West Virginia 
submitted revisions to a regulation (45CSR6) to prevent and control air 
pollution from combustion of refuse as formal revisions to its State 
Implementation Plan (SIP). The first SIP revision went to public 
hearing on July 19, 1999 and became effective on August 31, 2000. This 
SIP revision modified and deleted certain definitions, updated opacity 
standards and clarified and expanded open burning requirements. The 
second SIP

[[Page 6628]]

revision went to public hearing on August 14, 2000 and became effective 
on July 1, 2001. This SIP revision added requirements for air curtain 
incinerators and exempted certain temporary flares form permitting. 
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 45CSR6 submitted on September 12, 2001 into 
the SIP.

I. Summary of SIP Revision

    (A) The following definitions were revised as follows: (1) 
Definitions of ``Commission,'' ``Ringelmann Smoke Chart,'' 
``Construction and Demolition Wastes'' were deleted, (2) 
``Incineration'' was modified to include thermal oxidizers and thermal 
catalytic oxidizers, (3) ``Director'' was modified to include persons 
delegated authority by the Director; (4) ``Open Burning'' was modified 
to include ``burn barrels,'' (5) ``Person'' was modified to include the 
State of West Virginia and the United States, (6) Definitions for 
``Land Clearing Debris,'' Air Curtain Incinerator'', ``Clean Lumber,'' 
and ``Yard Waste'' were added.
    (B) Restrictions on open burning were revised as follows: (1) Open 
burning is prohibited for any purpose unless specifically exempted in 
the regulation, (2) Open burning for fire training is exempt but must 
be conducted according to 45CSR15 and 40 CFR part 61, subpart M, (3) 
References to ``construction and demolition wastes'' were replaced with 
``land clearing debris'' and the exemption for open burning of backyard 
wastes was removed, (4) Prior Director's approval for open burning of 
land clearing debris is required in all areas of the State, and (5) An 
exemption was added for open burning of propellent and explosive 
wastes, subject to 45CSR25.
    (C) Emission Standards for incinerators were revised as follows: 
(1) Particulate matter emission standards were changed from a 
Ringelmann Chart reading to a measured percent opacity standard, (2) 
The regulations at 40 CFR part 60 subparts Eb, AAAA and CCCC for air 
curtain incinerators were incorporated by reference, restrictions were 
imposed on the types of wastes allowed to be burned in air curtain 
incinerators, permits for construction, operation and modification of 
air curtain incinerators are required and an exemption from permitting 
was given to temporary air curtain incinerators.
    (D) Permit requirements were changed to require permits for the 
construction, modification and relocation of any incinerator as 
applicable in 45CSR13, 45CSR14 and 45CSR19 and temporary flares and 
flare stacks with potential emissions below stationary source or major 
modification thresholds are exempt from permitting.
    (E) Stack testing must be conducted using 40 CFR part 60, appendix 
A, Method 5 or other EPA-approved equivalent method approved by the 
Director to perform stack testing for particulate matter.
    (F) The following sections were added or deleted: (1) The section 
on delayed compliance orders was deleted, (2) A section titled 
``Emergencies and Natural Disasters'' was added to exempt open burning 
activities resulting from incineration of vegetation, building debris 
and other non-hazardous debris from natural disasters, (3) A section 
titled ``Effect of the Rule'' was added to prohibit 45CSR6 from being 
used to allow or permit construction of a new incinerator in violation 
of other State regulation, and (4) A 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, updating opacity standards, requiring EPA-approved test 
methods, and clarifying and expanding open burning and incineration 
requirements.

III. Final Action

    EPA is approving the revisions to 45CSR6, ``To Prevent and Control 
Air Pollution from Combustion of Refuse,'' submitted by West Virginia 
on September 12, 2001. 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 April 11, 
2003 without further notice unless EPA receives adverse comment by 
March 12, 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.

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.

[[Page 6629]]

    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 April 11, 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 prevent and control air pollution for 
combustion of refuse 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: January 15, 2003.
James W. Newsom,
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)(51) to read 
as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *
    (51) Revisions to the West Virginia's Regulations to prevent and 
control air pollution from combustion of refuse, submitted on September 
12, 2001 by the West Virginia Division of Environmental Protection:
    (i) Incorporation by reference.
    (A) Letter of September 12, 2001 from the West Virginia Division of 
Environmental Protection.
    (B) Revisions to Title 45, Series 6 (45CSR6), To Prevent and 
Control Air Pollution from Combustion of Refuse, effective July 1, 
2001.
    (ii) Additional Material.
    (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 combustion of refuse.
    (B) Letter of January 26, 2001 from the West Virginia Division of 
Environmental Protection to EPA transmitting materials related to 
revisions of 45CSR6.
    (C) Remainder of the State submittals pertaining to the revisions 
listed in paragraph (c)(51)(i) of this section.

[FR Doc. 03-2938 Filed 2-7-03; 8:45 am]
BILLING CODE 6560-50-P