[Federal Register Volume 68, Number 70 (Friday, April 11, 2003)]
[Rules and Regulations]
[Pages 17738-17741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8829]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[WV059-6027a; FRL-7479-9]


Approval and Promulgation of State Air Quality Plans for 
Designated Facilities and Pollutants, State of West Virginia; Control 
of Emissions From Commercial and Industrial Solid Waste Incinerator 
Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves the commercial and industrial solid waste 
incinerator 111(d)/129 plan (the ``plan'') submitted to EPA on November 
29, 2001 by the West Virginia Department of Environmental Protection, 
Division of Air Quality (DAQ). The plan was submitted to fulfill 
requirements of the Clean Air Act (CAA). The DAQ plan establishes 
emission limits, monitoring, operating, and recordkeeping requirements 
for commercial and industrial solid waste incinerator (CISWI) units for 
which construction commenced on or before November 30, 1999.

DATES: This final rule is effective on June 10, 2003 without further 
notice, unless EPA receives adverse written comment by May 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 Walter Wilkie, Deputy 
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.

FOR FURTHER INFORMATION CONTACT: James B. Topsale at (215) 814-2190, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d) and 129 of the CAA requires states to submit plans 
to control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities (designated facilities) whenever standards 
of performance have been established under section 111(b) for new 
sources of the same type, and EPA has established emission guidelines 
(EG) for such existing sources. A designated pollutant is any pollutant 
for which no air quality criteria have been issued, and which is not 
included on a list published under section 108(a) or section 
112(b)(1)(A) of the CAA, but emissions of which are subject to a 
standard of performance for new stationary sources. However, section 
129 of the CAA, also requires EPA to promulgate EG for CISWI units that 
emit a mixture of air pollutants. These pollutants include organics 
(dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), 
acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and 
particulate matter (including opacity). On December 1, 2000 (65 FR 
75338), EPA promulgated CISWI unit new source performance standards and 
EG, 40 CFR part 60, subparts CCCC and

[[Page 17739]]

DDDD, respectively. The designated facility to which the EG apply is 
each existing CISWI unit, as defined in subpart DDDD, that commenced 
construction on or before November 30, 1999.
    Section 111(d) of the CAA requires that ``designated'' pollutants, 
regulated under standards of performance for new stationary sources by 
section 111(b) of the CAA, must also be controlled at existing sources 
in the same source category to a level stipulated in an EG document. 
Section 129 of the CAA specifically addresses solid waste combustion 
and emissions controls based on what is commonly referred to as 
``maximum achievable control technology'' (MACT). Section 129 requires 
EPA to promulgate a MACT based emission guidelines document for CISWI 
units, and then requires states to develop plans that implement the EG 
requirements. The CISWI EG under 40 CFR part 60, subpart DDDD, 
establish emission and operating requirements under the authority of 
the CAA, sections 111(d) and 129. These requirements must be 
incorporated into a State plan that is ``at least as protective'' as 
the EG, and is Federally enforceable upon approval by EPA. The 
procedures for adoption and submittal of State plans are codified in 40 
CFR part 60, subpart B.

II. Review of West Virginia's CISWI Plan

    EPA has reviewed the West Virginia CISWI plan in the context of the 
requirements of 40 CFR part 60, and subparts B and DDDD. A summary of 
the review is provided below.

A. Identification of Enforceable State Mechanism(s) for Implementing 
the EG

    On September 25, 2002, the DAQ submitted to EPA a copy of the 
plan's enforceable mechanism, regulation 45CSR18, ``To Prevent and 
Control Emissions from Commercial and Industrial Solid Waste 
Incinerator Units.'' The regulation, which became effective on May 1, 
2002, contains a compliance schedule that is not considered expeditious 
by EPA. As a result, the DAQ amended its plan to include a State 
Consent Order (CO) with a revised compliance schedule, which is 
applicable to the only known affected facility, E.I. Du Pont de Nemours 
and Company, Washington Works (``DuPont''), located in Wood County, 
West Virginia.
    A second state regulation, 45CSR6, effective July 1, 2001, 
establishes the air pollution control requirements for air curtain 
incinerator (ACI) units. 45CSR6, section 4.8, stipulates the air 
pollution control requirements for both new and existing units. 
Affected facilities constructed on or before November 30, 1999 are 
subject to the same requirements as new units under 40 CFR part 60, 
subpart CCCC. The DAQ has made a conscious decision to subject these 
sources, if any, to the same standards as new sources. However, the DAQ 
is not aware of any affected ACI units.

B. Demonstration of Legal Authority

    The DAQ states that it has sufficient statutory and regulatory 
authority to implement and enforce the plan. This is discussed in 
section VII of the plan narrative, a November 29, 2001 letter from DAQ 
Counsel, and the January 22, 2003 plan amendment. The DAQ cites the 
following references for legal authority: W.Va. Code section 22-5-1 et 
seq., applicable state CISWI air quality regulations WV CSR18, and WV 
CSR6, section 4.8. The DAQ has the required legal authority based on 
EPA's review of the submitted legal opinions, statutes, and rules. This 
includes the West Virginia CISWI regulations and the Dupont Consent 
Order; each of which is considered as being at least as protective as 
the applicable Federal requirements for existing CISWI units.

C. Inventory of CISWI Units in West Virginia Affected by the EG

    As noted above, there is only one known affected facility, Dupont, 
located in Wood County, West Virginia. There is no known affected ACI 
unit in West Virginia.

D. Inventory of Emissions From CISWI Units in West Virginia

    The submitted plan contains an estimate of emissions from the 
Dupont facility. Emissions estimates are provided for organics 
(dioxins/furans), acid gases (hydrogen chloride, sulphur dioxide, and 
nitrogen oxides), and metals (cadmium, lead, mercury).

E. Emission Limitations for CISWI Units

    The state CISWI regulations include emission limitation 
requirements that are at least as protective as those in the EG, 
subpart DDDD.

F. Compliance Schedules

    The state CISWI regulation, 45 CSR18, which became effective on May 
1, 2002, contains a compliance schedule, as noted above, that is not 
considered expeditious by EPA. As a result, the DAQ amended its plan to 
include the Dupont Consent Order, which includes a revised compliance 
schedule that requires final compliance on or before September 30, 
2003. EPA believes the revised compliance schedule is an expeditious 
one. This determination is based on a review of air pollution control 
retrofit case studies of smaller hospital/medical infectious waste 
incinerator units, which are similar in size and design to CISWI units. 
The retrofit case studies are referenced in EPA's November 25, 2002 
proposed Federal plan (67 FR 70640) for CISWI units. See the proposed 
Federal plan preamble, section IV. F, ``How Did EPA Determine the 
Compliance Schedule?'' The Dupont Consent Order was executed on January 
17 and 23, 2003, by DAQ and Dupont representatives, respectively. If an 
unknown individual CISWI unit is discovered after EPA approval of this 
plan, the unit will be subject to the Federal plan.

G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    The state CISWI regulations include the applicable source 
compliance testing, monitoring, recordkeeping, and reporting 
requirements of the EG.

H. A Record of the Public Hearing on the State Plan

    Public hearings were held in Charleston, West Virginia, on November 
8, 2001 for the original plan, and then again on January 6, 2003 for 
the amended plan. The DAQ provided evidence of complying with the 
public notice and other hearing requirements of subpart B.

I. Provision for Annual State Progress Reports to EPA

    The DAQ will submit to EPA on an annual basis a report which 
details the progress in the enforcement of the plan. The first progress 
report will be submitted to EPA within one year after approval of the 
state plan.

III. Final Action

    EPA is approving the West Virginia CISWI plan for controlling 
designated pollutants under sections 111(d) and 129 of the CAA. 
Therefore, EPA is amending 40 CFR part 62 to reflect this action. This 
approval is based on the rationale discussed above and in further 
detail in the technical support document (TSD) associated with this 
action.
    There are a number of plan elements which are not relevant or 
germane to this plan approval action. Accordingly, EPA is taking no 
action on the following plan elements:
    (1) The provisions of 45CSR6 that regulate incinerators other than 
affected ACI units;
    (2) The compliance date provisions codified at 45CSR18, section 
7.1; and

[[Page 17740]]

    (3) The Dupont Consent Order, Section I, Findings of Facts, 
paragraphs 4 and 6, relating to greenhouse gas emissions, and state 
permit requirements not required under subpart DDDD. These three 
elements are not part of the EPA approved West Virginia CISWI plan.
    As provided by 40 CFR 60.28(c), any revisions to the West Virginia 
plan, or the associated Dupont Consent Order, will not be considered 
part of the applicable plan until submitted by the DAQ in accordance 
with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA 
in accordance with 40 CFR part 60, subpart B.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply approves a pre-existing Federal 
requirement for state air pollution control agencies and existing CISWI 
units that are subject to the provisions of 40 CFR part 60, subparts B 
and DDDD, respectively. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the 111(d) plan should 
relevant adverse or critical comments be filed. This rule will be 
effective June 10, 2003 without further notice unless the Agency 
receives relevant adverse comments by May 12, 2003. If EPA receives 
such comments, then EPA will publish a timely withdrawal in the Federal 
Register informing the public that the rule did not take effect. EPA 
will address all public comments in a subsequent final rule based on 
the proposed rule. The 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. Statutory and Executive Order Reviews

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.
    In reviewing 111(d)/129 plan 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 111(d)/129 plan submission for failure to use 
VCS. It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/
129 plan 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 June 10, 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, approving the West Virginia CISWI plan, 
may not be challenged later in proceedings to enforce its requirements. 
(See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: March 31, 2003.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

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40 CFR part 62, subpart XX, is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

[[Page 17741]]

Subpart XX--West Virginia

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2. An undesignated center heading and sections 62.12155, 62.12156, and 
62.12157 are added to subpart XX, to read as follows:

Emissions From Existing Commercial Industrial Solid Waste Incinerators 
(CISWI) Units--Section 111(d)/129 Plans


Sec.  62.12155  Identification of plan.

    Section 111(d)/129 CISWI plan submitted on November 29, 2001, 
amended September 25, 2002, and January 22, 2003.


Sec.  62.12156  Identification of sources.

    The plan applies to the Dupont CISWI unit located in Wood County, 
West Virginia.


Sec.  62.12157  Effective date.

    The effective date of the plan is June 10, 2003.
[FR Doc. 03-8829 Filed 4-10-03; 8:45 am]
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