	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

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.

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 [Insert date 60 days after publication
in the Federal Register]  without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  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:    HYPERLINK "mailto:fernandez.cristina@epa.gov" 
fernandez.cristina@epa.gov .

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 website 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   HYPERLINK "mailto:quinto.rose@epa.gov"  quinto.rose@epa.gov
.

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 [Insert date 60 days from date of
publication in the Federal Register] without further notice unless EPA
receives adverse comment by [Insert date 30 days from date of
publication in the Federal Register].  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:

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);  

does not impose an information collection burden under the provisions of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

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.);  

does not contain any unfunded mandate or significantly or uniquely
affect small governments, as described in the Unfunded Mandates Reform
Act of 1995 (Public Law 104-4);

does not have Federalism implications as specified in Executive Order
13132 (64 FR 43255, August 10, 1999);

is not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997); 

is not a significant regulatory action subject to Executive Order 13211
(66 FR 28355, May 22, 2001); 

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 

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 [Insert date 60 days from date of publication of
this document in the Federal Register].  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.

                                                                        
                William T. Wisniewski, Acting

                                                                        
                 Regional Administrator

__March 4, 2009_____                   		         
___________/s/_______________

Dated:                                				William T. Wisniewski,

                                      				Acting Regional Administrator,

                                      				Region III.

40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

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	 

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:

( 52.2520  	Identification of plan.

*	*	*	*	*	

(c) * * * 

	EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP

State citation

[Chapter 16(20 or 45CSR]	Title/subject	State effective date	EPA approval
date	Additional explanation



*    *    *    *    *    *    *

[45CSR]  Series 6	Control of Air Pollution From Combustion of Refuse

Section 45-6-1	General	6/1/08	[Insert Federal Register publication date]
[Insert page number where the document begins]	Added subsection 1.1.a.

Section 45-6-2	Definitions	6/1/08	[Insert Federal Register publication
date] [Insert page number where the document begins]	Terms added:
“Agency Administrator,” “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	[Insert Federal Register
publication date] [Insert page number where the document begins]	Added
subsection 3.1.e. (3.1.e.1 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 Incinerators	6/1/08	[Insert
Federal Register publication date] [Insert page number where the
document begins]	Deleted subsections 4.8, and 4.8.a 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	[Insert Federal Register publication
date] [Insert page number where the document begins]	Revised subsection
5.1.

Section 45-6-6	Permits	6/1/08	[Insert Federal Register publication date]
[Insert page number where the document begins]	Revised subsections 6.1,
6.1.a.3, 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	[Insert Federal Register
publication date] [Insert page number where the document begins]	Revised
subsections 7.1 and 7.2.

Section 45-6-8	Variances	6/1/08	[Insert Federal Register publication
date] [Insert page number where the document begins]	Revised subsections
8.1 and 8.2.

Section 45-6-9	Emergencies and Natural Disasters	6/1/08	[Insert Federal
Register publication date] [Insert page number where the document
begins]	Revised subsection 9.1. 

Added subsections 9.1.c, 9.2, and 9.2.a through 9.2.c.

Section 45-6-10	Exemptions	6/1/08	[Insert Federal Register publication
date] [Insert page number where the document begins]	New Section

Section 45-6-11	Effect of the Rule	6/1/08	[Insert Federal Register
publication date] [Insert page number where the document begins]
Recodified – formerly section 45-6-10.

Section 45-6-12	Inconsistency Between Rules	6/1/08	[Insert Federal
Register publication date] [Insert page number where the document
begins]	Recodified – formerly section 45-6-11.

Revised subsection 12.1.



*    *    *    *     *     *     *	



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