# Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Good Engineering Practice for Stack Heights > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-9326 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 19, 1994 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [WV7-1-5573; A-1-FRL-4840-6] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Good Engineering Practice for Stack Heights AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: EPA is approving a State implementation plan (SIP) revision submitted by the State of West Virginia. This revision establishes and requires that the degree of emission limitation required for the control of any air pollutant is not affected by that portion of the stack height which exceeds good engineering practice (GEP) or by any other dispersion technique. The revision is consistent with the stack height provisions under EPA's ``Requirements for Preparation, Adoption, and Submittal of Implementation Plans--Control Strategy''. The intended effect of this action is to approve a SIP revision consisting of a stack height regulation adopted by the State of West Virginia. The State adopted this regulation to conform to the July 8, 1985 Federal promulgation of a revised stack height regulation. This action is being taken under section 110 of the Clean Air Act. EFFECTIVE DATE: This action will become effective June 20, 1994, unless notice is received by May 19, 1994 that adverse or critical comments will be received. If the effective date is delayed, timely notice will be published in the Federal Register. ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, Radiation, and Toxics Division, U.S. Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air, Radiation, and Toxics Division, U.S. Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107; Jerry Kurtzweg ANR-443, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460; and West Virginia Office of Air Quality, 1558 Washington Street, East, Charleston, West Virginia 25311. FOR FURTHER INFORMATION CONTACT: David J. Campbell, Air and Radiation Programs Branch, Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107; 215 597-9781. SUPPLEMENTARY INFORMATION: On April 2, 1990, the West Virginia Department of Commerce, Labor, and Environmental Resources submitted a revision to its State implementation plan (SIP) to incorporate a regulation for good engineering practice (GEP) as it applies to stack heights. The revision consists of West Virginia Air Pollution Control Commission (WVAPCC) Regulation 20--``Good Engineering Practice as Applies to Stack Heights'' (45CSR20), adopted by the West Virginia Legislature on April 8, 1989 and effective July 14, 1989. The SIP revision is consistent with EPA's revised stack height regulation as published in the July 8, 1985 Federal Register (See 50 FR 27906). Summary of SIP Revision On July 8, 1985, EPA promulgated a revised stack height regulation to ensure that the degree of emission limitation required for the control of any pollutant under an applicable SIP is not affected by that portion of any stack height which exceeds GEP or by any other dispersion technique (See 50 FR 27892). The regulation updated the rule promulgated on February 8, 1982 at 47 FR 5864. On April 2, 1990, the State of West Virginia responded to the July 8, 1985 Federal Register by submitting a SIP revision consisting of WVAPCC Regulation 20--``Good Engineering Practice as Applies to Stack Heights''. This regulation is consistent with EPA's stack height regulation. EPA Evaluation EPA has evaluated West Virginia's SIP revision request and concluded the following: (1) The stack height requirements will not adversely affect West Virginia's ability to enforce the current applicable emission limitations which adequately protect the national ambient air quality standards (NAAQS); (2) the stack height requirements are clearly enforceable; and (3) the applicable requirements of 40 CFR part 51 have been met. A more detailed evaluation is provided in a Technical Support Document available upon request from the Regional EPA office listed in the ADDRESSES section of this document. EPA is approving this SIP revision without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. These revisions to West Virginia's regulations have been effective in the State since July 14, 1989. This action will be effective June 20, 1994 unless, by May 19, 1994, notice is received that adverse or critical comments will be submitted. If such notice is received, this action will be withdrawn before the effective date by simultaneously publishing two subsequent notices. One notice will withdraw the final action and another will begin a new rulemaking by announcing a proposal of the action and establishing a comment period. If no such comments are received, the public is advised that this action will be effective on June 20, 1994. Final Action EPA is approving the WVAPCC Regulation 20--``Good Engineering Practice as Applies to Stack Heights'' (45CSR20) submitted by the State of West Virginia as a revision to the West Virginia SIP. EPA's review of West Virginia's stack height regulation indicates that it conforms to the requirements of 40 CFR parts 51 and 52, and to the July 8, 1985 Federal promulgation of a revised stack height regulation. The Agency has reviewed this request for revision of the Federally- approved State implementation plan for conformance with the provisions of the 1990 Amendments enacted on November 15, 1990. The Agency has determined that this action conforms with those requirements irrespective of the fact that the submittal preceded the date of enactment. Nothing in this action shall be construed as permitting or allowing or establishing a precedent for any future request for revision to any State implementation plan. Each request for revision to the State implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not impose any new requirements, the Administrator certifies that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIP's on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2). This SIP revision establishing good engineering practice as applies to stack heights in West Virginia has been classified as a Table 3 action for signature by the Acting Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation. On January 6, 1989, the Office of Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions from the requirements of section 3 of Executive Order 12291 for a period of two years. EPA has submitted a request for a permanent waiver for Table 2 and 3 SIP revisions. OMB has agreed to continue the waiver until such time as it rules on EPA's request. This request is still applicable under Executive Order 12866, which superseded Executive Order 12291 on September 30, 1993. 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 20, 1994. 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 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. Dated: February 9, 1994. Stanley L. Laskowski, 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. 7401-7671q. Subpart XX--West Virginia 2. Section 52.2520 is amended by adding paragraph (c)(27) to read as follows: Sec. 52.2520 Identification of plan. * * * * * (c) * * * (27) Revision to the State implementation plan consisting of a good engineering practice (GEP) for stack heights regulation as submitted by the Secretary, West Virginia Department of Commerce, Labor, and Environmental Resources on April 2, 1990: (i) Incorporation by reference. (A) Letter from the Secretary, Department of Commerce, Labor, and Environmental Resources dated April 2, 1990 submitting a revision to the West Virginia State implementation plan. (B) Regulation 20 (45CSR20)--``Good Engineering Practice as Applies to Stack Heights'' adopted by the State of West Virginia on April 8, 1989. The regulation became effective on July 14, 1989. (ii) Additional materials. (A) Remainder of the State implementation plan revision submitted by the West Virginia Department of Commerce, Labor, and Environmental Resources on April 2, 1990. [FR Doc. 94-9326 Filed 4-18-94; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-9326. Public record. Not legal advice.