[Federal Register Volume 68, Number 154 (Monday, August 11, 2003)]
[Rules and Regulations]
[Pages 47473-47477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20304]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV041/046-6015a; FRL-7525-2]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Regulation To Prevent and Control Particulate Air 
Pollution From Combustion of Fuel in Indirect Heat Exchangers

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 air pollution from 
combustion of fuel in indirect heat exchangers such as boilers. EPA is 
approving these revisions in accordance with the requirements of the 
Clean Air Act.

DATES: This rule is effective on October 10, 2003 without further 
notice, unless EPA receives adverse written comment by September 10, 
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 Branch, 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
Electronic comments should be sent either to [email protected] or 
to http://www.regulations.gov, which is an alternative method for 
submitting electronic comments to EPA. To submit comments, please 
follow the detailed instructions described in Part III of the 
Supplementary Information section. 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 and September 21, 2000, West Virginia submitted 
revisions to a regulation (45CSR2) to prevent and control particulate 
matter air pollution from combustion of fuel in indirect heat 
exchangers as formal revisions to its State Implementation Plan (SIP). 
The first SIP revision went to public hearing on November 29, 1994 and 
became effective on May 1, 1995. The second SIP revision went to public 
hearing on July 19, 1999 and became effective on August 31, 2000. These 
SIP revisions update definitions, clarify and streamline the opacity 
standards for visible emissions for soot blowing operations, streamline 
monitoring, reporting and recordkeeping requirements and provide for 
alternative limitations for visible emissions. 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 45CSR2 
submitted to EPA on September 21, 2000 into the SIP.

II. Summary of SIP Revision

    The following summary discusses the substantive revisions to West 
Virginia's regulation 45CSR2 since the SIP was revised on August 14, 
1983. A detailed summary and discussion of all of the revisions are 
contained in a Technical Support Document (TSD) prepared for this 
rulemaking action and will not be restated here. A copy of the TSD is 
available, upon request, from the EPA Regional Office listed in the 
ADDRESSES section of this document.
    (A) The following definitions were revised: (1) Definitions of 
``Commission'', ``Ringelmann Smoke Chart'', and ``Kanawha Valley Air 
Basin'', were deleted, (2) ``Director'' was modified to include persons 
delegated authority by the Director; (3) ``Person'' was modified to 
include the State of

[[Page 47474]]

West Virginia and the United States, and (4) Definitions for ``ASTM'', 
``Control Equipment'', ``Discharge Point'', ``Heat Input'', 
``Laboratory Official'', `` Malfunction'', ``Normal Operation'', 
``Owner or Operator'', ``Prefilter'', ``Primary Filter'', ``Probe'', 
``Sampling Plane'', ``Shutdown'', ``Start-up'', ``Test Team 
Supervisor'', ``Distillate Oil'', ``Indirect Heat Exchanger'', 
``Natural Gas'', ``Opacity'', ``Process Heater'', ``Residual Oil'', 
``Shipment'', ``Wet Scrubber System'' and ``Wood'' were added.
    (B) In general, West Virginia made revisions to the visible 
emissions standard that substantially strengthened and clarified 
opacity limitations. Visible emissions from fuel burning units must be 
no greater than ten percent opacity on a six minute block average. An 
exemption from this standard is provided during soot blowing operations 
and fire box cleaning where a source can demonstrate that compliance 
cannot be practically achieved. In no event, however, may the opacity 
be greater than 30 percent for a total of six, six minute time periods 
in a calendar day. EPA interprets these exemption provisions to place 
the burden on the source to document that the exemption applies. Absent 
a formal determination from the Director that is based on information 
provided by the source, the exemption cannot be applied.
    West Virginia's regulation 45CSR2 also provides a process for 
sources to request alternative visible emission standards where it is 
technologically or economically infeasible for the source to comply 
with the presumptive standard. In no event, however, may a fuel burning 
unit exceed 20 percent opacity. Section 110(a)(2)(A) of the Clean Air 
Act (CAA) requires SIPs to include federally enforceable emission 
limitations. West Virginia's provisions for alternative visible 
emission standards meets this requirement only to the extent that the 
regulation sets an upper limit on all alternative standards. However, 
the West Virginia Department of Environmental Protection (WVDEP) 
submitted a letter to EPA on March 19, 2003, clarifying that all 
alternative visible emission standards will be established as specific 
conditions of permits issued in accordance with federally enforceable 
permitting programs. The letter 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 this action and provides 
certainty of EPA review of alternative emission standards.
    (C) The SIP revision substantially revises and enhances the 
testing, monitoring, recordkeeping and reporting requirements of 
45CSR2. The regulation now requires that testing be conducted using 
EPA-approved methods and requires sources to submit monitoring plans 
for each emission unit that includes how emissions are to be measured, 
monitoring of pollution control equipment and parametric monitoring as 
appropriate. Sources using continuous opacity monitoring systems (COMS) 
presumptively meet the requirement for a monitoring plan.
    The revised regulation also provides that excursions outside of the 
operating parameters associated with control equipment and established 
in a monitoring plan will not necessarily constitute a violation. On 
March 19, 2003, the WVDEP submitted a letter to EPA outlining the 
manner in which the State will implement 45CSR2, including this 
provision. It states that ``WVDEP interprets this provision to mean 
that the source has the burden of proof in demonstrating that an 
excursion of an operating parameter is not a violation of the visible 
emission standards under section 3 of 45CSR2. Visible emissions 
monitoring plans involving primarily the recording of parametric data 
require visible emissions observations to be made and recorded when an 
excursion of any operating parameter exceeds one hour as detailed in 
interpretative rule 45CSR2A * * * Such opacity tests may be used to 
show that the parametric excursion did not result in opacity violations 
or may serve to verify that opacity violations actually occurred. WVDEP 
or EPA could enforce against the observed opacity violations in 
conjunction with the parametric excursion.'' This letter is included in 
the administrative record for this rulemaking action.
    (D) The revisions to West Virginia's regulation 45CSR2 include 
revised exemptions to the presumptive visible emissions standard during 
periods of start-up, shutdown, and malfunction. In order to qualify for 
an exemption during these periods, the source must demonstrate that the 
fuel burning unit and associated air pollution control equipment have 
been maintained and operated in a manner consistent with good air 
pollution control practices for minimizing emissions.
    Generally, EPA requires that sources meet, without interruption, 
applicable limitations and control requirements. Where exemptions are 
allowed, the source must prove that an exemption applies and that the 
violation could not have been prevented. The Director may determine 
whether or not the exemption should be applied based on ``information 
available to the Director'', which includes, but is not limited to 
monitoring results, visible emissions observations, review of operating 
and maintenance procedures and inspection of the source. Failure of a 
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.
    Specifically with respect to the malfunction exemption, EPA 
interprets West Virginia's regulation to mean that the source has the 
burden to prove that the malfunction was caused by circumstances beyond 
the control of the source and that it could not have been prevented 
through the installation of proper control equipment or proper 
operation and maintenance. Furthermore, the source must be able to 
demonstrate that the malfunction was not the result of an activity that 
could have been foreseen and avoided. With respect to high opacity 
measurements during start-up and shutdown operations, the source has 
the same burden to prove that the violation could not have been avoided 
through installation of the proper control equipment or proper 
operation and maintenance. For all exemptions claimed by a source, the 
WVDEP and EPA each have the authority to determine whether or not an 
exemption applies under a SIP approved regulation.
    West Virginia's regulation 45CSR2 also states that a malfunction 
constitutes an affirmative defense for any action brought for 
noncompliance with the weight emissions standard (particulate matter 
standard) if the owner/operator can demonstrate that it has met the 
requirement to maintain and operate the fuel burning unit(s), including 
associated air pollution control equipment, in a manner consistent with 
good air pollution control practices for minimizing emissions. Although 
this provision does not exempt fuel burning units from the particulate 
matter standard during a malfunction, it does attempt to define the 
State's enforcement discretion when a malfunction occurs. EPA agrees 
that enforcement discretion may be appropriate for events such as a 
malfunction, where EPA concurs that a malfunction has occurred. 
However, EPA's approval of this rule as a SIP revision does not 
constitute advance approval of any exemptions, including malfunctions, 
or advance enforcement discretion which may be claimed under West 
Virginia's regulations. EPA may

[[Page 47475]]

take independent enforcement action to the extent allowed by section 
113 of the CAA and any other applicable provisions of the CAA, 
notwithstanding the issuance of an exemption or the exercise of 
enforcement authority by the State.
    (E) Variances from the visible emissions standards are provided by 
West Virginia's regulation 45CSR2 in the event of unavoidable fuel 
shortages of fuel having the characteristics needed to comply with the 
visible emissions standards, for emergency situations that pose a 
threat to public health and welfare and to fuel burning units that use 
a flue gas desulphurization system when the latter system must be 
bypassed for planned or unplanned maintenance. The variance is limited 
in that it sets an alternative limit on opacity and, in the case of 
emergency situations, requires a demonstration that the particulate 
matter standards are not exceeded.
    (F) A new 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 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 45CSR2, ``To Prevent and Control 
Particulate Air Pollution from Combustion of Fuel in Direct Heat 
Exchangers'', 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 October 10, 2003 without further notice 
unless EPA receives adverse comment by September 10, 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.
    You may submit comments either electronically or by mail. To ensure 
proper receipt by EPA, identify the appropriate rulemaking 
identification number WV041/046-6015a in the subject line on the first 
page of your comment. Please ensure that your comments are submitted 
within the specified comment period. Comments received after the close 
of the comment period will be marked ``late.'' EPA is not required to 
consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], attention WV041/046-6015a. EPA's e-mail system 
is not an ``anonymous access'' system. If you send an e-mail comment 
directly without going through Regulations.gov , EPA's e-mail system 
automatically captures your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket.
    ii. Regulations.gov. Your use of Regulation.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select ``Environmental Protection Agency'' at 
the top of the page and use the ``go'' button. The list of current EPA 
actions available for comment will be listed. Please follow the online 
instructions for submitting comments. The system is an ``anonymous 
access'' system, which means EPA will not know your identity, e-mail 
address, or other contact information unless you provide it in the body 
of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in the ADDRESSES 
section of this document. These electronic submissions will be accepted 
in WordPerfect, Word or ASCII file format. Avoid the use of special 
characters and any form of encryption.
    2. By Mail. Written comments should be addressed to the EPA 
Regional office listed in the ADDRESSES section of this document.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, confidential business information (CBI), or other 
information whose disclosure is restricted by statute. When EPA 
identifies a comment containing copyrighted material, EPA will provide 
a reference to that material in the version of the comment that is 
placed in the official public rulemaking file. The entire printed 
comment, including the copyrighted material, will be available at the 
Regional Office for public inspection.

Submittal of CBI Comments

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the

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procedures for claiming CBI, please consult the person identified in 
the FOR FURTHER INFORMATION CONTACT section.

Considerations When Preparing Comments to EPA

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

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.
    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 October 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, to approve West Virginia's Regulation 
45CSR2, 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: June 30, 2003.
Thomas Voltaggio,
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)(56) to read as 
follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *
    (56) Revisions to West Virginia's Regulations to prevent and 
control particulate air pollution from combustion of fuel in indirect 
heat exchangers, 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 2, 45 CSR2, To Prevent and 
Control Particulate Air Pollution from Combustion of Fuel in Indirect 
Heat Exchangers, effective August 31, 2000.
    (ii) Additional Material.
    (A) Letter of March 19, 2003 from the West Virginia Division of 
Environmental Protection to EPA

[[Page 47477]]

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 air pollution from combustion of fuel in 
indirect heat exchangers.
    (C) Remainder of the State submittals pertaining to the revisions 
listed in paragraph (c)(56)(i) of this section.

[FR Doc. 03-20304 Filed 8-8-03; 8:45 am]
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