[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Rules and Regulations]
[Pages 12560-12562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6615]



[[Page 12560]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0110; FRL-8787-2]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Amendments to the Control of Air Pollution From 
Combustion of Refuse

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 amends 
a regulation to control air pollution from combustion of refuse. EPA is 
approving these revisions in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: This rule is effective on May 26, 2009 without further notice, 
unless EPA receives adverse written comment by April 24, 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-2009-0110 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: <a href="/cdn-cgi/l/email-protection#b8deddcad6d9d6dcddc296dbcad1cbccd1d6d9f8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="224447504c434c4647580c41504b51564b4c43624752430c454d54">[email protected]</span></a>.
    C. Mail: EPA-R03-OAR-2009-0110, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, 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-
2009-0110. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at 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 www.regulations.gov or e-mail. 
The 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 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 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 
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 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 Department of Environmental 
Protection, Division of Air Quality, 601 57th Street, SE., Charleston, 
WV 25304.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at <a href="/cdn-cgi/l/email-protection#2352564a4d574c0d514c5046634653420d444c55"><span class="__cf_email__" data-cfemail="81f0f4e8eff5eeaff3eef2e4c1e4f1e0afe6eef7">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background

    On April 25, 2008, the West Virginia Department of Environmental 
Protection (WVDEP) submitted a revision to its State Implementation 
Plan (SIP) for the control of air pollution from combustion of refuse. 
This SIP revision replaces the current 45CSR6 approved by EPA on April 
10, 2003 (68 FR 6627).

II. Summary of SIP Revision

    This SIP revision consists of amendments to West Virginia's Rule 
45CSR6, which establishes emission standards for particulate matter and 
requirements for activities involving incineration of refuse, which are 
not subject to, or are exempted from, regulation under various Federal 
counterpart regulations for specific combustion source categories. This 
SIP revision prohibits, with limited exception, open burning and sets 
forth the registration, permitting, reporting, testing, emergency, 
natural disaster, and exemption provisions for activities involving the 
combustion of refuse and land clearing debris. This SIP revision does 
not prohibit bonfires, campfires or other forms of open burning for the 
purposes of personal enjoyment and comfort.
    Definitions were revised in this SIP revision as follows: (1) 
Definitions for ``Agency Administrator,'' ``CFR,'' ``Prescribed 
Burning,'' and ``Secretary'' were added; (2) Definitions for ``Clean 
Lumber,'' ``Director,'' ``Wood Waste,'' and ``Yard Waste'' were 
removed; and (3) Definitions for ``Incinerator,'' `` Incinerator 
Capacity,'' ``Opacity,'' ``Open Burning,'' ``Pathological Waste,'' and 
``Refuse'' were amended.
    This SIP revision has new provisions for open burning or 
incineration of animal or poultry carcasses during a declared state of 
emergency involving highly contagious animal or poultry disease, and a 
new provision for prescribed burning as approved by the West Virginia 
Division of Forestry. The SIP revision has also a revised language and 
a new definition for pathological waste incinerators burning at least 
90 percent pathological waste, which are exempted from 45CSR18.
    Other revisions to the rule include a revised title, addition of 
new language for posted incinerator operating instructions, a new 
exemption section, and general language clarification and correction.

III. Final Action

    EPA is approving the amendments of Rule 45CSR6--Control of Air 
Pollution from Combustion of Refuse, as a revision to the West Virginia 
SIP. This SIP revision was submitted by WVDEP on April 25, 2008.
    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 May 26, 2009 without further 
notice unless EPA receives

[[Page 12561]]

adverse comment by April 24, 2009. 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.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 26, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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 pertaining to the amendments of West Virginia's 
regulation to control air pollution from combustion of refuse, 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, Recordkeeping and reporting.

    Dated: March 4, 2009.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as 
follows:

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

Subpart XX--West Virginia

0
2. In ( 52.2520, the table in paragraph (c) is amended by revising the 
entries for 45CSR6, Sections 45-6-1 through 45-6-11 and adding an entry 
for 45CSR6, Section 45-6-12. The amendments read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                                    EPA-Approved Regulations in the West Virginia SIP
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  State citation [Chapter 16-20 or                                    State                                       Additional explanation/citation at 40
               45CSR]                       Title/subject        effective date         EPA approval date                      CFR 52.2565
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[[Page 12562]]

 
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                                           [45CSR] Series 6 Control of Air Pollution From Combustion of Refuse
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Section 45-6-1......................  General..................          6/1/08  3/25/09[Insert page number      Added subsection 1.1.a.
                                                                                  where the document begins].
Section 45-6-2......................  Definitions..............          6/1/08  3/25/09[Insert page number      Terms added: ``Agency Administrator,''
                                                                                  where the document begins].     ``CFR,'' ``Prescribed Burning,'' and
                                                                                                                  ``Secretary.''
                                                                                                                 Terms removed: ``Clean Lumber,''
                                                                                                                  ``Director,'' ``Wood Waste,'' and
                                                                                                                  ``Yard Waste.''
                                                                                                                 Terms amended: ``Incinerator,''
                                                                                                                  ``Incinerator Capacity,'' ``Opacity,''
                                                                                                                  ``Open Burning,'' ``Pathological
                                                                                                                  Waste,'' and ``Refuse.''
Section 45-6-3......................  Open Burning Prohibited..          6/1/08  3/25/09[Insert page number      Added subsection 3.1.e. (3.1.e.1
                                                                                  where the document begins].     through 3.1.e.6).
                                                                                                                 Revised subsections 3.1, 3.1.b,
                                                                                                                  3.1.c.3, and 3.2.a.
Section 45-6-4......................  Emission Standards for             6/1/08  3/25/09[Insert page number      Deleted subsections 4.8, and 4.8.a
                                       Incinerators.                              where the document begins].     through 4.8.d.
                                                                                                                 Revised subsections 4.1, 4.2, 4.3, 4.5,
                                                                                                                  4.7 and 4.8.e.
                                                                                                                 Added subsections 4.9 and 4.10.
Section 45-6-5......................  Registration.............          6/1/08  3/25/09[Insert page number      Revised subsection 5.1.
                                                                                  where the document begins].
Section 45-6-6......................  Permits..................          6/1/08  3/25/09[Insert page number      Revised subsections 6.1, 6.1.a.3,
                                                                                  where the document begins].     6.1.a.4, 6.1.b.3, 6.1.b.5, 6.1.b.6,
                                                                                                                  and 6.1.b.7.
                                                                                                                 Added subsection 6.2.
Section 45-6-7......................  Reports and Testing......          6/1/08  3/25/09[Insert page number      Revised subsections 7.1 and 7.2.
                                                                                  where the document begins].
Section 45-6-8......................  Variances................          6/1/08  3/25/09[Insert page number      Revised subsections 8.1 and 8.2.
                                                                                  where the document begins].
Section 45-6-9......................  Emergencies and Natural            6/1/08  3/25/09[Insert page number      Revised subsection 9.1.
                                       Disasters.                                 where the document begins].
                                                                                                                 Added subsections 9.1.c, 9.2, and 9.2.a
                                                                                                                  through 9.2.c.
Section 45-6-10.....................  Exemptions...............          6/1/08  3/25/09[Insert page number      New Section.
                                                                                  where the document begins].
Section 45-6-11.....................  Effect of the Rule.......          6/1/08  3/25/09[Insert page number      Recodified--formerly section 45-6-10.
                                                                                  where the document begins].
Section 45-6-12.....................  Inconsistency Between              6/1/08  3/25/09[Insert page number      Recodified--formerly section 45-6-11.
                                       Rules.                                     where the document begins].
                                                                                                                 Revised subsection 12.1.
 
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[FR Doc. E9-6615 Filed 3-24-09; 8:45 am]
BILLING CODE 6560-50-P


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