[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Rules and Regulations]
[Pages 33010-33012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13709]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV050-6029a; FRL-7503-9]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Regulation to Prevent and Control Particulate Matter Air 
Pollution From Manufacturing Processes and Associated Operations

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 particulate matter air pollution from 
manufacturing processes and associated operations such as storage 
facilities. EPA is approving these revisions 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, Chief, 
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].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 29, 1996, December 7, 1998 and September 21, 2000, West 
Virginia submitted revisions to a regulation (45CSR7) to prevent and 
control particulate matter air pollution from manufacturing operations 
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 27, 1994. This SIP revision provides an exemption 
for ferroalloy electric submerged arc furnaces from visible emissions 
and fugitive particulate matter standards during blowing taphole, 
poling and oxygen lancing operations. The second SIP revision went to 
public hearing on March 27, 1997 and became effective on May 1, 1998. 
This SIP revision provides alternative stack limits for fiberglass 
manufacturing operations using the flame attenuation method. The third 
SIP revision went to public hearing on July 19, 1999. This SIP revision 
added several exemptions and alternative limitations for visible 
emission and mass particulate emission standards. Since the most recent 
of the three SIP revisions incorporates all of the changes from the 
earlier SIP revisions, EPA will incorporate by reference the version of 
45CSR7 submitted to EPA on September 21, 2000 into the SIP.

II. Summary of SIP Revision

    (A) The following definitions were revised: (1) Definitions of 
``Commission,'' ``Ringelmann Smoke Chart,'' ``Chief of Air Quality,'' 
``Division of Environmental Protection,'' were deleted, (2) 
``Director'' was modified to include persons delegated authority by the 
Director; (3) ``Person'' was modified to include the State of West 
Virginia and the United States, and (4) Definitions for ``Ferroalloy 
electric submerged arc furnace,'' ``Furnace charge,'' ``Tapping,'' 
``Blowing tap,'' ``Poling,'' ``Oxygen lancing,'' ``Maintenance 
Operation,'' ``Malfunction,'' ``Potential to Emit'' were added.
    (B) As a result of a petition by Elkem Metals and American Alloys 
certain events at ferroalloy electric submerged arc furnaces are exempt 
from fugitive particulate matter and visible emission standards. These 
events include blowing taphole, poling and oxygen lance operations. 
Blowing taphole events have been considered by EPA as uncontrollable, 
unpredictable events best characterized as malfunctions. This rationale 
was explained in an EPA development document for the federal rule 
titled ``Supplemental Information on Standards of Performance for 
Ferroalloy Production Facilities,'' issued in March 1976, which states 
that a blowing tap event is ``a process malfunction condition which is 
not wholly preventable. Periods in which the tapping hood is swung 
aside for poling/lancing or removal of metal or slag from the spout are 
failures of the process to operate in a normal or usual manner. As 
malfunctions, these periods are not subject to the standards.'' EPA 
interprets West Virginia's exemption to apply only to the extent that 
the above operations qualify as malfunctions caused by circumstances 
beyond the control of the source that could not have been prevented 
through installation of proper control equipment or proper operation 
and maintenance.
    (C) The SIP revision exempts maintenance operations from 
particulate matter rate limitations on the condition that such 
operations are conducted in a manner consistent with good air pollution 
control practices for minimizing emissions. The State defines 
maintenance activities as operations having a zero process (input) 
weight rate. However, process weight rate is defined as the total 
weight of all materials introduced into a source operation, excluding 
solid, liquid, and gaseous fuels used solely as fuels and excluding all 
process and combustion air. This means that sources such as kilns, 
furnaces and ovens could be exempt from mass emission standards when 
operated in an idling mode, regardless of the types of fuels being 
combusted. However, the regulation does not exempt maintenance 
operations from visible emissions standards. Compliance with a visible 
emissions standard can be assessed over a broad range of operations, 
unlike compliance with a weight-based particulate matter limitation 
which is usually assessed by stack testing during normal and/or peak 
manufacturing operations. Therefore, a visible emissions standard can 
be an appropriate means to control emissions during maintenance 
operations.
    (D) Exemptions are provided for insignificant sources, except for 
particulate matter classified as hazardous air pollutants. EPA believes 
that these exemptions are for very small sources that have little or no 
impact on ambient air quality.
    All of the above exemptions are predicated on operating and 
maintaining manufacturing processes in a manner consistent with good 
air pollution control practices for minimizing emissions. The proposed 
SIP revision states that the Director may determine whether or not the 
exemption

[[Page 33011]]

should be applied based on ``information available to the Director.'' 
EPA interprets this subsection to place the burden of proof on the 
owner or operator to document, as appropriate, that the exemption 
applies. In other words, failure of the source to provide documentation 
that it has conducted maintenance operations in a manner consistent 
with good air pollution control practices should not prevent either the 
State or EPA from exercising its enforcement authority.
    (E) Revisions to 45CSR7 include provisions for alternative emission 
limitations. As a result of a petition by Schuller International, Inc., 
West Virginia set alternative particulate matter limits for fiberglass 
production facilities using flame attenuation in the manufacturing 
process in lieu of limits that would otherwise be set by the duplicate 
source provisions in Table 45-7A of 45CSR7. The Schuller facility, now 
known as John Mansville International, Inc. (JM), is located in Vienna, 
West Virginia. Under the duplicate source provisions in 45CSR7, the 
allowable emission rate for each individual source would be established 
using the ratio of process input weight for the individual stack to the 
total process input weight, times the allowable emission rate for the 
combined sources. Since the relationship between the allowable emission 
rate and the process input rate is less than linear, the duplicate 
source provisions become more stringent as multiple sources are added. 
Abatement equipment and techniques to reduce particulate matter 
emissions were determined by West Virginia to be economically and 
technically infeasible to meet the duplicate source emission 
limitations at the John Mansville facility. Therefore, alternative 
particulate emission rate limits have been set that are based on best 
actual limits achieved in practice.
    These alternative emission limitations are framed such that they 
generically apply to all fiberglass production facilities that use the 
flame attenuation process. The John Mansville facility is the only such 
manufacturing facility in the state and the rule names and applies 
limits to the specific stacks at this facility. EPA believes that the 
rule is inconsistent in applying a site-specific set of emission 
limitations as generic standards for all flame attenuation plants, 
regardless of whether other plants exist. To resolve this 
inconsistency, EPA interprets the regulation to apply only to the Johns 
Mansville facility. Should other flame attenuation plants locate in the 
State, they will be subject to the duplicate source provisions of 
45CSR7.
    (F) An owner or operator may petition the Director for alternative 
visible emission standards during periods of start-up and shut-down. 
The petitioner must: (1) Demonstrate that it cannot comply with 
existing standards, (2) document the need for an alternative standard 
based on monitoring results and inspections, (3) demonstrate that mass 
emission standards are being met, and (4) maintain and operate 
manufacturing processes and air pollution control equipment in a manner 
consistent with good air pollution control practices. Section 
110(a)(2)(A) of the Clean Air Act requires SIPs to include federally 
enforceable emission limitations. The West Virginia Department of 
Environmental Protection (WVDEP) submitted a letter to EPA on March 19, 
2003, clarifying how the State intends to interpret and implement its 
air control regulations. This letter states that all alternative 
visible emission standards will be established as specific conditions 
of permits issued in accordance with federally enforceable permitting 
programs. The letter also states that prior to issuing such permits, 
the WVDEP shall submit them to EPA for review. This letter has been 
included in the administrative record for the rulemaking action on this 
SIP revision.
    (G) A new section titled ``Alternative Emission Limits for 
Duplicate Source Operations'' provides a process for owners or 
operators to apply for alternative mass particulate emission rates. 
These alternative limits will not allow the overall site limit 
determined by Tables 45-7A and B in the regulation to be relaxed but 
will provide some flexibility on what may be emitted from individual 
stacks. The regulation requires the petitioner to conduct an air 
quality impact analysis to demonstrate that the alternative standard(s) 
will not interfere with attainment or maintenance of any federal air 
quality standard or cause an unacceptable increase over the baseline 
concentration of particulate matter. In addition, the alternative 
standard is required to be implemented through 45CSR13, which is a 
federally enforceable permit program. As noted previously, WVDEP 
submitted a letter to EPA on March 19, 2003, which is part of the 
administrative record for this rulemaking action, stating that 
alternative mass emission limits issued under the authority of 45CSR13 
will be established and implemented as conditions of permits issued in 
accordance with federally approved and enforceable programs and, that 
prior to issuance such permits shall be submitted to EPA for review. 
The letter also affirms that a successful petition for alternative 
emission limits under this subsection may in no way supercede any 
provisions in 45CSR14 or 45CSR19 regarding pre-construction review of 
new or modified sources.
    (H) The SIP revision removes the restriction that the Director may 
only require a stack test when there is evidence of a violation. EPA 
believes that this revision substantially enhances West Virginia's 
ability to determine compliance with the particulate matter standard.
    (I) A section on delayed compliance orders was deleted and a 
section titled ``Inconsistency Between Rules'' allows the Director to 
determine applicability of conflicting rules based on imposing the more 
stringent provisions.
    Additional details and a description of minor revisions are 
included in the Technical Support Document for this rulemaking.
    These revisions strengthen the SIP by clarifying and updating 
definitions and updating opacity standards. The revisions also require 
EPA review of alternative emission limits and establish acceptable 
periods when emission standards do not apply.

III. Final Action

    EPA is approving the revisions to 45CSR7, ``To Prevent and Control 
Particulate Matter Air Pollution from Manufacturing Processes and 
Associated Operations'', submitted by West Virginia 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 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. Regulatory Assessment Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is

[[Page 33012]]

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 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 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 approve West Virginia's Regulation 
45CSR7, 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: May 20, 2003.
Abraham Ferdas,
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

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2. Section 52.2520 is amended by adding paragraph (c)(55) to read as 
follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *
    (55) Revisions to West Virginia's Regulations to prevent and 
control particulate matter air pollution from manufacturing processes 
and associated operations, 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.
    (B) Revisions to Title 45, Series 7, 45 CSR7, To Prevent and 
Control Particulate Matter Air Pollution from Manufacturing Processes 
and Associated Operations, effective August 31, 2000.
    (ii) Additional Material.
    (A) Letter of March 19, 2003 from the West Virginia Division of 
Environmental Protection to EPA providing clarification on the 
interpretation and implementation of certain regulations on air 
pollution control.
    (B) Letter of March 29, 1996 from the West Virginia Division of 
Environmental Protection to EPA transmitting the regulation to prevent 
and control particulate matter air pollution from manufacturing 
processes and associated operations.
    (C) Letter of December 7, 1998 from the West Virginia Division of 
Environmental Protection to EPA transmitting the regulation to prevent 
and control particulate matter air pollution from manufacturing 
processes and associated operations.
    (D) Remainder of the State submittals pertaining to the revisions 
listed in paragraph (c)(55)(i) of this section.

[FR Doc. 03-13709 Filed 6-2-03; 8:45 am]
BILLING CODE 6560-50-P