[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Rules and Regulations]
[Pages 33002-33005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13702]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV038/053-6026a; FRL-7500-2]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Regulation To Prevent and Control Air Pollution From the 
Emission of Sulfur Oxides

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 emission of 
sulfur oxides. EPA is approving this revision in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on August 4, 2003, without further 
notice, unless EPA receives adverse written comment by July 3, 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 Makeba Morris, Branch 
Chief, Air Quality Planning and Information Services Branch, 3AP21, 
U.S. Environmental Protection Agency, Region III, 1650 Arch Street,

[[Page 33003]]

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

FOR FURTHER INFORMATION CONTACT: Jill Webster (215) 814-2033 or Ellen 
Wentworth (215) 814-2034, or by e-mail at [email protected] or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On April 29, 1996 and September 21, 2000, West Virginia submitted 
revisions to a regulation (45CSR10) to prevent and control air 
pollution from the emission of sulfur oxides as formal revisions to its 
State Implementation Plan (SIP). The first SIP revision went to public 
hearing on July 6, 1993 and became effective on April 26, 1994. This 
SIP revision proposes approval of a temporary sulfur dioxide emissions 
control and mitigation plan which would be used during periods when 
maintenance of coke oven desulfurization equipment is being carried 
out. The second SIP revision went to public hearing on July 19, 1999 
and became effective on August 31, 2000. This SIP revision includes 
additional and revised definitions; new provisions for the 
establishment of alternative individual stack sulfur dioxide limits; a 
manufacturing process compliance test averaging time change; additions 
and revisions to compliance testing, monitoring, and recordkeeping 
provisions; exemptions from compliance determination requirements for 
gas, oil, and wood-fired fuel burning units; deletion of outdated 
compliance schedule provisions; and the addition of a circumvention 
section. Since the most recent of the SIP revisions incorporates all of 
the changes from the earlier SIP revisions, EPA will incorporate by 
reference the version of 45CSR10 submitted to EPA on September 21, 2000 
into the SIP.

II. Summary and Evaluation of SIP Revision

    (A) The following definitions were added: ``Continuous Emission 
Monitoring System,'' ``Distillate Oil,'' ``Indirect Heat Exchanger,'' 
``Malfunction,'' ``Natural Gas,'' ``Potential to Emit,'' and ``Process 
Heater.'' The following definition was deleted: ``Division of 
Environmental Protection.'' The following definitions were revised: 
``Director;'' and ``Person.''
    (B) The SIP revision provides that no person may permit the 
combustion of any refinery process gas stream or any other process gas 
stream that contains hydrogen sulfide in a concentration greater than 
50 grains per 100 cubic feet except in the case of a person operating 
in compliance with an emission control and mitigation plan approved by 
the Director and EPA. The SIP revision also establishes the conditions 
for approval for such a plan.
    (C) The SIP revision adds provisions allowing the operator of a 
source subject to sulfur dioxide weight emission standards for fuel 
burning units which have more than one stack to petition the Director 
for individual stack allowable emission rates different from those 
calculated under subdivision 3.4.a of the regulation. These alternative 
stack emissions cannot be used where stack emission changes are a 
result of a physical change or a change in method of operation that 
would otherwise require pre-construction permitting. The West Virginia 
Department of Environmental Protection (WVDEP) submitted a letter to 
EPA on March 19, 2003, clarifying that 45CSR10 requires that 
alternative standards be embodied in a federally enforceable permit 
issued under the authority of 45CSR13. The letter also states that 
prior to issuing the permit, WVDEP will submit the permit establishing 
alternative emission limitations to EPA for review and approval. The 
letter further clarifies that a petition for alternative emission 
limitations in no way supercedes any provisions regarding pre-
construction review (45CSR14) or new or modified sources (45CSR19). 
This letter has been included in the administrative record for the 
rulemaking action on this SIP revision.
    A revision to compliance requirements for fuel burning units 
clarifies that a continuous twenty-four (24) hour period is defined as 
one (1) calendar day.
    (D) An exemption is provided for the owner or operator of a 
manufacturing process source operation which has the potential to emit 
less than 500 pounds per year of sulfur oxides from the provisions of 
the emission standards for manufacturing source operations. The SIP 
revision also revises the compliance determination for the allowable 
sulfur dioxide concentration limitations from manufacturing process 
source operations to be based on a block three (3) hour averaging time 
rather than the previous averaging time of two (2) hours.
    (E) A provision has been added requiring that compliance with the 
allowable hydrogen sulfide concentration limitations for combustion 
sources be based on a block three (3) hour averaging time.
    (F) Specific permit time filing and review requirements have been 
deleted and revisions include references to the permit requirements of 
45CSR13, 14, 19, and 20.
    (G) Testing provisions have been revised to define the requirements 
applicable to any fuel burning unit(s), manufacturing process source(s) 
or combustion source(s) and requires those sources to comply with the 
emission limitations for such sources (subsections 3, 4, or 5). The 
provisions also require that testing be conducted in accordance with 
the appropriate test method set forth in 40 CFR part 60, appendix A, 
Method 6, Method 15, or another equivalent EPA testing method approved 
by the Director. The Director or his duly authorized representative, 
may conduct other tests deemed necessary to evaluate air pollution 
emissions other than sulfur dioxide. As noted previously, WVDEP 
submitted a letter, which is part of the administrative record for this 
rulemaking action, to EPA on March 19, 2003, clarifying the 
interpretation and implementation of certain regulations on air 
pollution control. In that letter, WVDEP clarified that these tests are 
for pollutants in addition to sulfur dioxide.
    The SIP revision allows the owner or operator of fuel burning 
unit(s), manufacturing process source(s) or combustion source(s) to 
demonstrate compliance with the requirements for such sources (sections 
3, 4 and 5) by testing and/or monitoring in accordance with one or more 
of the following: 40 CFR part 60, appendix A, Method 6, Method 15, 
continuous emissions monitoring systems (CEMS) or fuel sampling and 
analysis as set forth in an approved monitoring plan for each emission 
unit. In their letter dated March 19, 2003, WVDEP clarified that fuel 
sampling and analysis are required to be conducted in accordance with 
any applicable method or procedure formally established by EPA or 
otherwise in accordance with methods established by the American 
Society for Testing and Materials (ASTM).
    (H) This SIP revision provides for excursions of operating 
parameters in an approved monitoring plan which are not necessarily 
violations. In their letter

[[Page 33004]]

dated March 19, 2003, WVDEP clarified that WVDEP enforcement staff 
evaluate excursions where parametric monitoring is an element of or the 
primary component of a monitoring plan, on a case-specific basis. In 
some instances, deviations in an operating parameter would very 
strongly indicate a probable violation of sulfur dioxide limits or of 
45CSR10-3, 4, or 5. The letter also affirms that in a situation 
involving a likely emission exceedance, the burden of proof would be 
placed on the source to demonstrate that the parametric excursion did 
not cause an exceedance of the sulfur dioxide limit. West Virginia has 
clarified that in such an instance, emissions testing under conditions 
identical to or very similar to the excursion situation and subsequent 
analysis would be required to conclude whether a violation actually 
occurred. It should also be noted that larger sources of sulfur dioxide 
are now required to use CEMs or ASTM-based fuel monitoring and analysis 
or periodic emissions tests (EPA Method 6), as the primary compliance 
determination method.
    (I) A section has been added to the SIP for recordkeeping and 
reporting, requiring the owners or operators of fuel burning unit(s), 
manufacturing process source(s) or combustion source(s) subject to the 
regulation requirements for those sources to maintain on-site records 
of all required monitoring data, pursuant to monitoring plans 
established in the monitoring provisions of this regulation (subsection 
8.2c). These records are required to be available to the Director or 
his duly authorized representative and are to be retained on-site for a 
minimum of five years. Periodic exception reports are due to the 
Director, and are required to detail any excursions outside the range 
of measured emissions or monitored parameters established in the 
source's approved monitoring plan. In addition, operators of fuel 
burning unit(s) or combustion(s) source(s) are required to maintain 
records of the operating schedule and the quantity and quality of fuel 
consumed in each unit. Fuel burning sources utilizing CEMs are exempt 
from this requirement.
    (J) An exemption has been revised for any fuel burning unit having 
a design heat input under 10 million BTUs per hour to include an 
exemption from the registration, permitting, testing, monitoring, 
recordkeeping and reporting requirements for such sources (sections 6-
8), as well as from the sulfur dioxide emission standards for fuel 
burning units (section 3). An exemption has been added for fuel burning 
unit(s) which combust natural gas, wood, or distillate oil, alone or in 
combination, exempting these units from the testing, monitoring, 
recordkeeping and reporting requirements for fuel burning units, 
manufacturing process sources or combustion sources (section 8).
    (K) A section entitled, ``Circumvention'' has been added to this 
regulation which prohibits any owner or operator subject to the 
provisions of this regulation to build, erect, install, modify or use 
any article, machine, equipment or process which purposely conceals an 
emission which would constitute a violation of an applicable standard.
    (L) A section entitled, ``Inconsistency Between Rules'' has been 
added to this regulation which provides that any inconsistencies 
between 45CSR10 and any other WVDEP regulation be resolved by the 
application of the more stringent requirement.
    Additional details pertaining to these revisions are included in 
the Technical Support Document for this rulemaking.
    These revisions strengthen the SIP by clarifying and updating 
definitions, and revising and streamlining monitoring, recordkeeping 
and reporting requirements for sulfur dioxide fuel burning units, 
manufacturing process source operations, and combustion sources. The 
revision also adds requirements for the registration of alternative 
emission limits for multiple stacks at a single source.

III. Final Action

    EPA is approving the revisions to 45CSR10, ``To Prevent and Control 
Air Pollution from the Emission of Sulphur Oxides,'' submitted by West 
Virginia on April 29, 1996, and 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 August 4, 2003, without further notice unless EPA 
receives adverse comment by July 3, 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.

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 (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

[[Page 33005]]

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 August 4, 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 from 
the emission of sulfur oxides 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, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: May 8, 2003.
James W. Newsom,
Acting Regional Administrator, Region III.


0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart XX--West Virginia

0
2. Section 52.2520 is amended by adding paragraph (c)(53) to read as 
follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *
    (53) Revisions to West Virginia's Regulations to prevent and 
control air pollution from the emission of sulfur oxides, 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 emission of sulfur oxides.
    (B) Revisions to Title 45, Series 10, 45CSR10, To Prevent and 
Control Air Pollution from the Emission of Sulfur Oxides, effective 
August 31, 2000.
    (ii) Additional Material.
    (A) Letter of April 29, 1996 from the West Virginia Division of 
Environmental Protection to EPA transmitting the regulation to prevent 
and control air pollution from the emission of sulfur oxides.
    (B) Letter of March 19, 2003 from the West Virginia Department of 
Environmental Protection to EPA providing clarification on the 
interpretation and implementation of certain regulations on air 
pollution control.
    (C) Remainder of the State submittal pertaining to the revisions 
listed in paragraph (c)(53)(i) of this section.

[FR Doc. 03-13702 Filed 6-2-03; 8:45 am]
BILLING CODE 6560-50-P