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

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. ---------------------------------------------------------------------------

\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. ---------------------------------------------------------------------------

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.

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

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] BILLING CODE 6560-50-P