[Federal Register: August 11, 2003 (Volume 68, Number 154)]
[Rules and Regulations]
[Page 47473-47477]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au03-15]
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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 morris.makeba@epa.gov 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 anderson.kathleen@epa.gov.
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
morris.makeba@epa.gov, 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.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
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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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