Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Approval of Revisions to Coal Preparation Plants and Coal Handling Operations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV016-6010a; FRL-6372-3]

Approval and Promulgation of Air Quality Implementation Plans;

West Virginia; Approval of Revisions to Coal Preparation Plants and

Coal Handling Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on revisions to the West

Virginia State Implementation Plan (SIP). The revisions concern

regulations for coal handling and preparation facilities. New

permitting, monitoring, reporting, and testing requirements are

included for these facilities and new emission limits are included for

facilities that are located in the Follansbee particulate matter

nonattainment area. EPA is approving these revisions to West Virginia's

regulation 45CSR5 ``To Prevent and Control Air Pollution From the

Operation of Coal Preparation Plants and Coal Handling Operations'' in

accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on September 13, 1999 without further

notice, unless EPA receives adverse written comment by August 12, 1999.

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 A. Morris,

Chief, Technical Assessment Branch, Mailcode 3AP22, 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, 401 M Street, SW, Washington, DC 20460; and West Virginia

Department of Environmental Protection, Office of Air Quality, 1558

Washington Street, East, Charleston, West Virginia 25311.

FOR FURTHER INFORMATION CONTACT: Ruth E. Knapp, (215) 814-2191, or by

e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On November 15, 1991, EPA received an attainment plan from West

Virginia for the Follansbee PM-10 nonattainment area.1 The

plan consisted of several portions including bilateral consent orders

between the State of West Virginia and six companies in the Follansbee

area, emergency revisions to West Virginia Regulation 5 ``To Prevent

and Control Air Pollution from the Operation of Coal Preparation

Plants'', and air quality modeling. EPA advised the State that the

revisions to Regulation 5 were not approvable as a SIP revision because

West Virginia's emergency rules, are by State law, temporary. On August

10, 1993, West Virginia submitted formal State Implementation Plan

(SIP) revisions to EPA of the permanently adopted revisions to

Regulation 5. The SIP revision provides new emission limits and

operating practices for coal preparation and handling facilities in the

Follansbee, West Virginia PM-10 nonattainment area and new permitting,

monitoring, reporting and testing requirements for coal handling

facilities statewide.

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\1\ The Follansbee particulate matter nonattainment area is that

part of Brooke County, West Virginia west of State Route 2, north of

an eastward extension of the southern boundary of Steubenville

Township, Ohio, and south of the Market Street Bridge. There is only

one coal preparation facility in the Follansbee area, and it has

been inactive for several years.

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Summary of the SIP Revision

The revisions to Regulation 5 are scattered throughout the rule.

The major changes to the rule are provisions for the following:

(1) Special limits on emissions from coal handling operations and

coal preparation plants in the Follansbee PM-10 nonattainment area,

including an emission limit of 0.001 pounds of particulate matter per

ton of coal crushed or screened; a limit of 5% opacity from any

crushing, screening, or conveying operation; and a plan to control

fugitive dust from haul roads, pile areas, berms, and plant access

roads;

(2) A requirement for the continuous measurement of exit gas

temperature or scrubber pressure drop and water pressure at thermal

drier units statewide; and

(3) Revisions to reporting and testing requirements, and provisions

related to granting variances.

These regulations went into effect in the State of West Virginia in

1993. EPA is publishing this revision to West Virginia's Regulation 5

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 September 13, 1999 without further notice unless EPA

receives adverse comment by August 12, 1999. 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.

[[Page 37682]]

Any parties interested in commenting must do so at this time.

II. Final Action

EPA is approving the revisions to West Virginia Regulation 5 ``To

Prevent and Control Air Pollution from the Operation of Coal

Preparation Plants and Coal Handling Facilities''. These revisions

strengthen the State Implementation Plan by providing additional

controls for particulate matter.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, E.O. requires EPA to

provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

state, local, and tribal governments, the nature of their concerns,

copies of written communications from the governments, and a statement

supporting the need to issue the regulation. In addition, E.O. 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local, and tribal

governments ``to provide meaningful and timely input in the development

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency. This final rule is not subject

to E.O. 13045 because it is not an economically significant regulatory

action as defined by E.O. 12866, and it does not address an

environmental health or safety risk that would have a disproportionate

effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

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 SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2). 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 SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule. EPA has determined that

the approval action promulgated does not include a Federal mandate that

may result in estimated annual costs of $100 million or more to either

State, local, or tribal governments in the aggregate, or to the private

sector. This Federal action approves pre-existing requirements under

State or local law, and imposes no new requirements. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action.

G. 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

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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).

H. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action to approve the revisions to West

Virginia regulation 45 CSR 5 must be filed in the United States Court

of Appeals for the appropriate circuit by September 13, 1999. 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, Particulate matter, Reporting and recordkeeping

requirements.

Dated: June 29, 1999.

Thomas Voltaggio,

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 et seq.

Subpart XX--West Virginia

2. Section 52.2520 is amended by adding paragraphs (c)(42) to read

as follows:

Sec. 52.2520 Identification of plan.

* * * * *

(c) * * *

(42) Revisions to the West Virginia Regulations for coal

preparation and handling facilities 45CSR5 submitted on August 10, 1993

by the West Virginia Department of Commerce, Labor and Environmental

Resources:

(i) Incorporation by reference.

(A) Letter of August 10, 1993 from the West Virginia Department of

Commerce, Labor, and Environmental Resources transmitting revisions to

West Virginia's regulation 45CSR5 ``To Prevent and Control Air

Pollution From the Operation of Coal Preparation Plants and Coal

Handling Operations''.

(B) Revisions to West Virginia regulation 45CSR5 regarding coal

preparation and handling plants specifically: Revisions to 45CSR5 which

require specific emission limits on particulate matter emissions at

coal preparation and handling facilities in the Follansbee PM10

nonattainment area, monitoring of thermal driers and control equipment

statewide, revised permitting, testing and reporting requirements.

(ii) Additional Material--Remainder of the August 10, 1993

submittal on 45CSR5.

[FR Doc. 99-17626 Filed 7-12-99; 8:45 am]

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