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

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Environmental Protection Agency (EPA).


Direct final rule.


This action approves the commercial and industrial solid waste incinerator 111(d)/129 plan (the “plan”) submitted to EPA on November 29, 2001 by the West Virginia Department of Environmental Protection, Division of Air Quality (DAQ). The plan was submitted to fulfill requirements of the Clean Air Act (CAA). The DAQ plan establishes emission limits, monitoring, operating, and recordkeeping requirements for commercial and industrial solid waste incinerator (CISWI) units for which construction commenced on or before November 30, 1999.


This final rule is effective on June 10, 2003 without further notice, unless EPA receives adverse written comment by May 12, 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.


Written comments should be mailed to Walter Wilkie, Deputy Chief, Air Quality Planning and Information Services Branch, Mailcode 3AP21, 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.

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James B. Topsale at (215) 814-2190, or by e-mail at

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I. Background

Sections 111(d) and 129 of the CAA requires states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources. However, section 129 of the CAA, also requires EPA to promulgate EG for CISWI units that emit 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). On December 1, 2000 (65 FR 75338), EPA promulgated CISWI unit new source performance standards and EG, 40 CFR part 60, subparts CCCC and Start Printed Page 17739DDDD, respectively. The designated facility to which the EG apply is each existing CISWI unit, as defined in subpart DDDD, that commenced construction on or before November 30, 1999.

Section 111(d) of the CAA requires that “designated” pollutants, regulated under standards of performance for new stationary sources by section 111(b) of the CAA, must also be controlled at existing sources in the same source category to a level stipulated in an EG document. Section 129 of the CAA specifically addresses solid waste combustion and emissions controls based on what is commonly referred to as “maximum achievable control technology” (MACT). Section 129 requires EPA to promulgate a MACT based emission guidelines document for CISWI units, and then requires states to develop plans that implement the EG requirements. The CISWI EG under 40 CFR part 60, subpart DDDD, establish emission and operating requirements under the authority of the CAA, sections 111(d) and 129. These requirements must be incorporated into a State plan that is “at least as protective” as the EG, and is Federally enforceable upon approval by EPA. The procedures for adoption and submittal of State plans are codified in 40 CFR part 60, subpart B.

II. Review of West Virginia's CISWI Plan

EPA has reviewed the West Virginia CISWI plan in the context of the requirements of 40 CFR part 60, and subparts B and DDDD. A summary of the review is provided below.

A. Identification of Enforceable State Mechanism(s) for Implementing the EG

On September 25, 2002, the DAQ submitted to EPA a copy of the plan's enforceable mechanism, regulation 45CSR18, “To Prevent and Control Emissions from Commercial and Industrial Solid Waste Incinerator Units.” The regulation, which became effective on May 1, 2002, contains a compliance schedule that is not considered expeditious by EPA. As a result, the DAQ amended its plan to include a State Consent Order (CO) with a revised compliance schedule, which is applicable to the only known affected facility, E.I. Du Pont de Nemours and Company, Washington Works (“DuPont”), located in Wood County, West Virginia.

A second state regulation, 45CSR6, effective July 1, 2001, establishes the air pollution control requirements for air curtain incinerator (ACI) units. 45CSR6, section 4.8, stipulates the air pollution control requirements for both new and existing units. Affected facilities constructed on or before November 30, 1999 are subject to the same requirements as new units under 40 CFR part 60, subpart CCCC. The DAQ has made a conscious decision to subject these sources, if any, to the same standards as new sources. However, the DAQ is not aware of any affected ACI units.

B. Demonstration of Legal Authority

The DAQ states that it has sufficient statutory and regulatory authority to implement and enforce the plan. This is discussed in section VII of the plan narrative, a November 29, 2001 letter from DAQ Counsel, and the January 22, 2003 plan amendment. The DAQ cites the following references for legal authority: W.Va. Code section 22-5-1 et seq., applicable state CISWI air quality regulations WV CSR18, and WV CSR6, section 4.8. The DAQ has the required legal authority based on EPA's review of the submitted legal opinions, statutes, and rules. This includes the West Virginia CISWI regulations and the Dupont Consent Order; each of which is considered as being at least as protective as the applicable Federal requirements for existing CISWI units.

C. Inventory of CISWI Units in West Virginia Affected by the EG

As noted above, there is only one known affected facility, Dupont, located in Wood County, West Virginia. There is no known affected ACI unit in West Virginia.

D. Inventory of Emissions From CISWI Units in West Virginia

The submitted plan contains an estimate of emissions from the Dupont facility. Emissions estimates are provided for organics (dioxins/furans), acid gases (hydrogen chloride, sulphur dioxide, and nitrogen oxides), and metals (cadmium, lead, mercury).

E. Emission Limitations for CISWI Units

The state CISWI regulations include emission limitation requirements that are at least as protective as those in the EG, subpart DDDD.

F. Compliance Schedules

The state CISWI regulation, 45 CSR18, which became effective on May 1, 2002, contains a compliance schedule, as noted above, that is not considered expeditious by EPA. As a result, the DAQ amended its plan to include the Dupont Consent Order, which includes a revised compliance schedule that requires final compliance on or before September 30, 2003. EPA believes the revised compliance schedule is an expeditious one. This determination is based on a review of air pollution control retrofit case studies of smaller hospital/medical infectious waste incinerator units, which are similar in size and design to CISWI units. The retrofit case studies are referenced in EPA's November 25, 2002 proposed Federal plan (67 FR 70640) for CISWI units. See the proposed Federal plan preamble, section IV. F, “How Did EPA Determine the Compliance Schedule?” The Dupont Consent Order was executed on January 17 and 23, 2003, by DAQ and Dupont representatives, respectively. If an unknown individual CISWI unit is discovered after EPA approval of this plan, the unit will be subject to the Federal plan.

G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

The state CISWI regulations include the applicable source compliance testing, monitoring, recordkeeping, and reporting requirements of the EG.

H. A Record of the Public Hearing on the State Plan

Public hearings were held in Charleston, West Virginia, on November 8, 2001 for the original plan, and then again on January 6, 2003 for the amended plan. The DAQ provided evidence of complying with the public notice and other hearing requirements of subpart B.

I. Provision for Annual State Progress Reports to EPA

The DAQ will submit to EPA on an annual basis a report which details the progress in the enforcement of the plan. The first progress report will be submitted to EPA within one year after approval of the state plan.

III. Final Action

EPA is approving the West Virginia CISWI plan for controlling designated pollutants under sections 111(d) and 129 of the CAA. Therefore, EPA is amending 40 CFR part 62 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.

There are a number of plan elements which are not relevant or germane to this plan approval action. Accordingly, EPA is taking no action on the following plan elements:

(1) The provisions of 45CSR6 that regulate incinerators other than affected ACI units;

(2) The compliance date provisions codified at 45CSR18, section 7.1; and Start Printed Page 17740

(3) The Dupont Consent Order, Section I, Findings of Facts, paragraphs 4 and 6, relating to greenhouse gas emissions, and state permit requirements not required under subpart DDDD. These three elements are not part of the EPA approved West Virginia CISWI plan.

As provided by 40 CFR 60.28(c), any revisions to the West Virginia plan, or the associated Dupont Consent Order, will not be considered part of the applicable plan until submitted by the DAQ in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B.

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 approves a pre-existing Federal requirement 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) plan should relevant adverse or critical comments be filed. This rule will be effective June 10, 2003 without further notice unless the Agency receives relevant adverse comments by May 12, 2003. 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. 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 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 111(d)/129 plan 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 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 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 June 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, approving the West Virginia CISWI plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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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
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Dated: March 31, 2003.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

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40 CFR part 62, subpart XX, is amended as follows:

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

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

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Subpart XX—West Virginia

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2. An undesignated center heading and sections 62.12155, 62.12156, and 62.12157 are added to subpart XX, to read as follows:

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Emissions From Existing Commercial Industrial Solid Waste Incinerators (CISWI) Units—Section 111(d)/129 Plans

Identification of plan.

Section 111(d)/129 CISWI plan submitted on November 29, 2001, amended September 25, 2002, and January 22, 2003.

Identification of sources.

The plan applies to the Dupont CISWI unit located in Wood County, West Virginia.

Effective date.

The effective date of the plan is June 10, 2003.

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[FR Doc. 03-8829 Filed 4-10-03; 8:45 am]