ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
EPA­
R03­
OAR­
2005­
WV­
0002;
FRL­
]
Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
West
Virginia;
Emission
Reductions
to
Meet
Phase
II
of
the
Nitrogen
Oxides
(
NOx)
SIP
Call
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

SUMMARY:
EPA
is
granting
conditional
approval
of
a
State
Implementation
Plan
(
SIP)

revision
submitted
by
the
State
of
West
Virginia.
This
revision
establishes
and
requires
NOx
emission
reductions
from
large,
stationary
internal
combustion
engines
in
the
State
to
meet
Phase
II
of
the
NOx
SIP
Call.
Because
the
revision
was
adopted
by
West
Virginia
under
its
emergency
rules
provisions
and
has
a
sunset
date,
this
approval
is
conditioned
on
West
Virginia
Department
of
Environmental
Protection
(
WVDEP)
adopting
a
permanent
rule
with
an
effective
date
prior
to
the
sunset
date
of
the
emergency
rule,
and
submitting
the
permanent
rule
as
a
SIP
revision
to
EPA
by
July
1,
2006.
WVDEP
is
in
the
process
of
adopting
its
permanent
version
of
the
rule
and
has
submitted
a
written
commitment
to
EPA
stating
it
will
meet
all
of
these
conditions.
The
intended
effect
of
this
action
is
to
grant
conditional
approval
of
West
Virginia's
rule
to
meet
its
remaining
emission
reduction
obligations
under
the
NOx
SIP
Call.

EFFECTIVE
DATE:
This
final
rule
is
effective
on
[
insert
date
30
days
from
date
of
publication].

ADDRESSES:
EPA
has
established
a
docket
for
this
action
under
Docket
ID
Number
EPA­.

R03­
OAR­
2005­
WV­
0002.
All
documents
in
the
docket
are
listed
in
the
www.
regulations.
gov
2
website.
Although
listed
in
the
electronic
docket,
some
information
is
not
publicly
available,
i.
e.,

confidential
business
information
(
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
through
www.
regulations.
gov
or
in
hard
copy
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.
Copies
of
the
State
submittal
are
available
at
the
West
Virginia
Department
of
Environmental
Protection,
Division
of
Air
Quality,

7012
MacCorkle
Avenue,
S.
E.,
Charleston,
West
Virginia
25304­
2943.

FOR
FURTHER
INFORMATION
CONTACT:
Marilyn
Powers,
(
215)
814­
2308,
or
by
e­
mail
at
powers.
marilyn@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
Background
On
October
20,
2005
(
70
FR
61104),
EPA
published
a
notice
of
proposed
rulemaking
(
NPR)
for
the
State
of
West
Virginia.
The
NPR
proposed
to
grant
conditional
approval
of
revisions
to
West
Virginia
emergency
rule
45CSR1
titled
Control
and
Reduction
of
Nitrogen
Oxides
from
Non­

Electric
Generating
Units
as
a
Means
to
Mitigate
Transport
of
Ozone
Precursors.
The
formal
SIP
revision
was
submitted
by
WVDEP
on
March
31,
2005
(
inadvertently
noted
in
the
NPR
as
being
submitted
on
March
30,
2005).
3
II.
Summary
of
SIP
Revision
West
Virginia's
March
31,
2005
SIP
submittal
requires
large,
stationary
internal
combustion
engines
in
the
State
to
reduce
NOx
emissions
by
a
total
of
903
tons
for
the
2007
ozone
season
and
beyond,
beginning
on
May
1,
2007.
Sources
in
West
Virginia
that
are
subject
to
the
new
requirements
must
submit
a
compliance
plan
to
WVDEP
by
May
1,
2006.

Other
specific
requirements
of
the
SIP
revision
and
the
rationale
for
EPA's
action
to
grant
conditional
approval
are
explained
in
the
NPR
and
will
not
be
restated
here.
No
public
comments
were
received
on
the
NPR.

III.
Final
Action
EPA
is
granting
conditional
approval
of
West
Virginia's
March
31,
2005
SIP
revision
consisting
of
West
Virginia
emergency
rule
45CSR1.
For
West
Virginia's
emergency
rule
45CSR1
to
become
fully
approvable,
the
State
must,
in
accordance
with
its
August
15,
2005
commitment,

fulfill
the
following
conditions:

(
1)
Adopt
a
permanent
rule
that
corresponds
to
emergency
rule
45CSR1,
but
with
an
effective
date
prior
to
the
sunset
date
of
the
emergency
rule,
and
(
2)
Submit
the
permanent
rule
as
a
SIP
revision
to
EPA
by
July
1,
2006.

Once
West
Virginia
fulfills
these
conditions,
EPA
will
conduct
rulemaking
to
convert
its
conditional
approval
to
a
full
approval.
If
the
conditions
are
not
fulfilled
within
the
specified
time
frame,
any
final
conditional
approval
granted
by
EPA
will
convert
to
a
disapproval.
4
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
5
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
6
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.
This
action
granting
conditional
approval
of
West
Virginia's
SIP
revision
to
meet
Phase
II
of
the
NOx
SIP
Call
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,
Nitrogen
dioxide,
Ozone,
Reporting
and
recordkeeping
requirements.

/
s/
___________
___________________________
Dated:
December
23,
2005
Donald
S.
Welsh,
Regional
Administrator,
Region
III.
7
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
52.2522
is
amended
by
adding
paragraph
(
i)
to
read
as
follows:

§
52.2522
Approval
Status.

*
*
*
*
*

(
i)
EPA
is
granting
conditional
approval
of
West
Virginia's
March
31,
2005
SIP
revision
consisting
of
West
Virginia
emergency
rule
45CSR1.
For
West
Virginia's
emergency
rule
45CSR1
to
become
fully
approvable,
the
State
must,
in
accordance
with
its
August
15,
2005
commitment,
fulfill
the
following
conditions:

(
1)
Adopt
a
permanent
rule
that
corresponds
to
emergency
rule
45CSR1,
but
with
an
effective
date
prior
to
the
sunset
date
of
the
emergency
rule,
and
(
2)
Submit
the
permanent
rule
as
a
SIP
revision
to
EPA
by
July
1,
2006.
