	ENVIRONMENTAL PROTECTION AGENCY   

	40 CFR Part 62

	[EPA-R03-OAR-2009-0482; FRL -     ]  

        Approval and Promulgation of State Air Quality Plans For
Designated Facilities and Pollutants, West Virginia; Control of
Emissions from Commercial and 

Industrial Solid Waste Incinerator Units, Plan Revision

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Direct final rule.  

SUMMARY:	 EPA is taking direct final action to approve a revision to the
West Virginia (WV) commercial and industrial solid waste incinerator
(CISWI) 111(d)/129 plan (the (plan().  The revision contains a modified
WV Department of Environmental Protection, Division of Air Quality (DAQ)
rule that streamlines and consolidates the state’s regulatory
structure (WV45CSR6, 18 and 24) for incinerator units and incorporates
applicable Clean Air Act (CAA), section 129, requirements into one rule,
WV45CSR18.  This approval action relates only to CISWI units.  The
streamlining of the state’s regulatory structure of its incinerator
rules is not an EPA requirement.

DATES:  This rule is effective [Insert date 60 days from the date of
publication in the Federal Register] without further notice, unless EPA
receives adverse written comment by [Insert date 30 days from date of
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-2009-0482 by one of the following methods:

     A.    www.regulations.gov.  Follow the on-line instructions for
submitting comments.

     B.    E-mail: E-mail:   HYPERLINK "http://wilkie.walter@epa.gov" 
http://wilkie.walter@epa.gov  

     C.    Mail:  EPA-R03-OAR-2009-0482, Walter Wilkie, Chief, Air
Quality Analysis 

             Branch, Mailcode 3AP22, 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-2009-0482 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 Division of Air Quality, 601 57th
Street SE,

Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT:  James B. Topsale, P.E., at
(215) 814-2190, or by e-mail at topsale.jim@epa.gov.

SUPPLEMENTARY INFORMATION: 

I.  Background

The initial West Virginia CISWI plan, and related state rule,
WV45CSR18, were approved by EPA in the April 11, 2003 edition of the
Federal Register.  (68FR17738).  The plan approval is codified in 40 CFR
Part 62, subpart XX.  On May 11, 2009, the West Virginia Department of
Environmental Protection submitted to EPA a formal 111(d)/129 plan
revision for CISWI units.  The submitted plan revision is part of an
effort to streamline and consolidate DAQ’s Clean Air Act, section 129,
requirements for CISWI and hospital, medical infectious waste
incinerator (HMIWI) units.  All applicable section 129 incinerator
regulatory requirements are now in one state rule, WV45CSR18.  However,
this approval action relates only to CISWI units.  A related plan
revision for HMIWI units will be addressed in a separate Federal
Register notice and rulemaking action.  The consolidation of the DAQ
incinerator rules into one is not an EPA requirement. 

Section 129 of the CAA regulates 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).  

II. Review of West Virginia(s CISWI Plan Revision

EPA has reviewed the West Virginia CISWI plan revision submittal in the
context of the requirements of 40 CFR Part 60, and subparts B and DDDD;
and Part 62, subpart A.    The submitted plan revision meets all the
cited requirements and those as described in EPA’s original approval
of West Virginia’s plan approval on April 11, 2003.  (68 FR 17738).

III. Final Action

EPA is approving the West Virginia CISWI plan revision that streamlines
and consolidates its section 111(d)/129 existing incinerator regulations
into one rule, WV45CSR18.  Therefore, EPA is amending 40 CFR Part 62,
subpart XX, 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.  This plan revision approval
does not negate or void any of the initial plan approval requirements
(68 FR 17738), including compliance dates, for E. I. du Pont de Nemours
and Company, Washington Works (“DuPont”), or any other affected
facility.  Initial CISWI plan requirements have been consolidated into a
modified rule WV45CSR18.  The scope of the plan revision approval is
limited to 40 CFR Part 60 and 62 provisions for existing CISWI units,
and the related new source performance standard provisions, subpart
CCCC, as referenced in the emission guidelines, subpart DDDD.   A
related plan revision for HMIWI units will be addressed in a separate
Federal Register notice and rulemaking action.  

The EPA Administrator continues to retain authority for several tasks,
as cited in state rule WV45CSR18, ( 45-18-9.  This retention of federal
authority also includes the granting of waivers for initial and annual
compliance testing requirements.

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 reflects already 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)/129 plan revision
should relevant adverse or critical comments be filed.  This rule will
be effective [Insert date 60 days from date of publication] without
further notice unless the Agency receives relevant adverse comments by
[Insert date 30 days from date of publication].  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.  

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
(Public Law 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 requirement,
and does not alter the relationship or the distribution of power and
responsibilities established in the CAA.  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 approves a state rule implementing a Federal standard.  In reviewing
section 111(d)/129 plan submissions, EPA’s role is to approve state
choices, provided that they meet the criteria of the CAA.  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 CAA.  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 Controller 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 [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 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.  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, approving the submitted West
Virginia CISWI plan revision, may not be challenged later in proceedings
to enforce its requirements.  (See section 307(b)(2).)

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.

   July 21, 2009               		                         
__________/s/________________

Dated:                                				William C. Early,

                                      				Acting Regional Administrator,

                                      				Region III.



40 CFR Part 62, Subpart XX, is amended as follows:

PART 62-[AMENDED]

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

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

            Subpart XX -- West Virginia

2.	Section 62.12155 is amended by designating the existing paragraph as
(a) and adding paragraph (b) to read as follows:

(62.12155                 Identification of plan.

        *****

(b)        On May 11, 2009, the West Virginia Department of
Environmental Protection submitted a State plan revision (#1) that
consolidates all existing section 111(d)/129 incinerator regulatory
requirements into one modified rule, WV45CSR18.  

3.          Section 62.12157 is amended by designating the exiting
paragraph as (a) and adding paragraph (b) to read as follows:

 (61.12157                  Effective date.

         *****

(b) Plan revision #1 is effective [Insert date 60 days from publication
in the Federal Register.]

             

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