[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Rules and Regulations]
[Pages 38344-38346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18480]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R03-OAR-2009-0482; FRL-8938-6]


Approval and Promulgation of State Air Quality Plans For 
Designated Facilities and Pollutants, West Virginia; Control of 
Emissions From Commercial and Industrial Solid Waste Incinerator Units, 
Plan Revision

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 (WV) commercial and industrial solid waste incinerator 
(CISWI) 111(d)/129 plan (the ``plan''). The revision contains a 
modified WV Department of Environmental Protection, Division of Air 
Quality (DAQ) rule that streamlines and consolidates the state's 
regulatory structure (WV45CSR6, 18 and 24) for incinerator units and 
incorporates applicable Clean Air Act (CAA), section 129, requirements 
into one rule, WV45CSR18. This approval action relates only to CISWI 
units. The streamlining of the state's regulatory structure of its 
incinerator rules is not an EPA requirement.

DATES: This rule is effective October 2, 2009 without further notice, 
unless EPA receives adverse written comment by September 2, 2009. 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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0482 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: E-mail: http:<a href="/cdn-cgi/l/email-protection#a28d8dd5cbcec9cbc78cd5c3ced6c7d0e2c7d2c38cc5cdd4">//<span class="__cf_email__" data-cfemail="98eff1f4f3f1fdb6eff9f4ecfdead8fde8f9b6fff7ee">[email protected]</span></a>.
    C. Mail: EPA-R03-OAR-2009-0482, Walter Wilkie, Chief, Air Quality 
Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2009-0482 EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in

[[Page 38345]]

the body of your comment and with any disk or CD-ROM you submit. 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. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the 
State submittal are available at the West Virginia Division of Air 
Quality, 601 57th Street SE., Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at (215) 814-
2190, or by e-mail at <a href="/cdn-cgi/l/email-protection#f0849f8083919c95de9a999db0958091de979f86"><span class="__cf_email__" data-cfemail="7602190605171a13581c1f1b3613061758111900">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    The initial West Virginia CISWI plan, and related state rule, 
WV45CSR18, were approved by EPA in the April 11, 2003 edition of the 
Federal Register. (68FR17738). The plan approval is codified in 40 CFR 
part 62, subpart XX. On May 11, 2009, the West Virginia Department of 
Environmental Protection submitted to EPA a formal 111(d)/129 plan 
revision for CISWI units. The submitted plan revision is part of an 
effort to streamline and consolidate DAQ's Clean Air Act, section 129, 
requirements for CISWI and hospital, medical infectious waste 
incinerator (HMIWI) units. All applicable section 129 incinerator 
regulatory requirements are now in one state rule, WV45CSR18. However, 
this approval action relates only to CISWI units. A related plan 
revision for HMIWI units will be addressed in a separate Federal 
Register notice and rulemaking action. The consolidation of the DAQ 
incinerator rules into one is not an EPA requirement.
    Section 129 of the CAA regulates a mixture of air pollutants. These 
pollutants include organics (dioxins/furans), carbon monoxide, metals 
(cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur 
dioxide, and nitrogen oxides) and particulate matter (including 
opacity).

II. Review of West Virginia's CISWI Plan Revision

    EPA has reviewed the West Virginia CISWI plan revision submittal in 
the context of the requirements of 40 CFR Part 60, and subparts B and 
DDDD; and part 62, subpart A. The submitted plan revision meets all the 
cited requirements and those as described in EPA's original approval of 
West Virginia's plan approval on April 11, 2003. (68 FR 17738).

III. Final Action

    EPA is approving the West Virginia CISWI plan revision that 
streamlines and consolidates its section 111(d)/129 existing 
incinerator regulations into one rule, WV45CSR18. Therefore, EPA is 
amending 40 CFR part 62, subpart XX, to reflect this action. This 
approval is based on the rationale discussed above and in further 
detail in the technical support document (TSD) associated with this 
action. This plan revision approval does not negate or void any of the 
initial plan approval requirements (68 FR 17738), including compliance 
dates, for E. I. du Pont de Nemours and Company, Washington Works 
(``DuPont''), or any other affected facility. Initial CISWI plan 
requirements have been consolidated into a modified rule WV45CSR18. The 
scope of the plan revision approval is limited to 40 CFR Part 60 and 62 
provisions for existing CISWI units, and the related new source 
performance standard provisions, subpart CCCC, as referenced in the 
emission guidelines, subpart DDDD. A related plan revision for HMIWI 
units will be addressed in a separate Federal Register notice and 
rulemaking action.
    The EPA Administrator continues to retain authority for several 
tasks, as cited in state rule WV45CSR18, section 45-18-9. This 
retention of federal authority also includes the granting of waivers 
for initial and annual compliance testing requirements.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. This action simply reflects already existing Federal 
requirements for state air pollution control agencies and existing 
CISWI units that are subject to the provisions of 40 CFR part 60, 
subparts B and DDDD, respectively. However, in the proposed rules 
section of this Federal Register publication, EPA is publishing a 
separate document that will serve as the proposal to approve the 
111(d)/129 plan revision should relevant adverse or critical comments 
be filed. This rule will be effective October 2, 2009 without further 
notice unless the Agency receives relevant adverse comments by 
September 2, 2009. If EPA receives such comments, then EPA will publish 
a timely withdrawal in the Federal Register informing the public that 
the rule did not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The 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 (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

[[Page 38346]]

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 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. 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 approves a state rule implementing a Federal 
standard. In reviewing section 111(d)/129 plan submissions, EPA's role 
is to approve state choices, provided that they meet the criteria of 
the CAA. 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 111(d)/129 plan submission for 
failure to use VCS.
    It would thus be inconsistent with applicable law for EPA, when it 
reviews a 111(d)/129 plan submission, to use VCS in place of a 111(d)/
129 plan submission that otherwise satisfies the provisions of the CAA. 
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 2, 2009. 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.
    Parties with objections to this direct final rule are encouraged to 
file a comment in response to the parallel notice of proposed 
rulemaking for this action published in the proposed rules section of 
today's Federal Register, rather than file an immediate petition for 
judicial review of this direct final rule, so that EPA can withdraw 
this direct final rule and address the comment in the proposed 
rulemaking. This action, approving the submitted West Virginia CISWI 
plan revision, may not be challenged later in proceedings to enforce 
its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, Waste treatment and disposal.

    Dated: July 21, 2009.
William C. Early,
Acting Regional Administrator, Region III.

0
40 CFR Part 62, Subpart XX, is amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart XX--West Virginia

0
2. Section 62.12155 is amended by designating the existing paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:


Sec.  62.12155  Identification of plan.

* * * * *
    (b) On May 11, 2009, the West Virginia Department of Environmental 
Protection submitted a State plan revision (<greek-i>1) that 
consolidates all existing section 111(d)/129 incinerator regulatory 
requirements into one modified rule, WV45CSR18.

0
3. Section 62.12157 is amended by designating the existing paragraph as 
paragraph (a) and adding paragraph (b) to read as follows:


Sec.  61.12157  Effective date.

* * * * *
    (b) Plan revision <greek-i>1 is effective October 2, 2009.

[FR Doc. E9-18480 Filed 7-31-09; 8:45 am]
BILLING CODE 6560-50-P


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