	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2006-0527; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans; 

West Virginia; Amendments to Prevention of Significant Deterioration
(PSD) 

Air Quality Permit Program

	

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of West Virginia.  This revision establishes
amendments to the State’s prevention of significant deterioration
(PSD) preconstruction air quality permit program regulation.   The
intended effect of this action is the approval of a State Implementation
Plan (SIP) revisions submitted by West Virginia Department of
Environmental Protection.

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-2006-0527.  All documents in the docket are listed
in the www.regulations.gov 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,
and 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the
State 

submittal is available at the West Virginia Department of Environmental
Protection, Division of Air Quality, 601 57th Street SE, Charleston, WV
25304.

 

FOR FURTHER INFORMATION CONTACT: Rosemarie Nino, (215) 814-3377, or by
e-mail at nino.rose@epa.gov.  

SUPPLEMENTARY INFORMATION:  

I.	Background	

On August 9, 2006 (71 FR 45485), EPA published a notice of proposed
rulemaking (NPR) for the State of West Virginia.  The NPR proposed
approval of amendments to West Virginia’s  prevention of significant
deterioration (PSD) preconstruction air quality permit program.  The
formal SIP revision was submitted by West Virginia on December 1, 2005. 
On December 22, 2005, WVDEP provided supplemental materials consisting
of a letter and an attached one page table requesting that EPA exclude
from its December 1, 2005 request for SIP approval the provisions of 45
CSR 14, as set forth in the attached table, that pertain to “Clean
Unit” and “Pollution Control Project” in order to ensure that
their federally-approved regulations are consistent with the United
States Court of Appeals for the District of Columbia Circuit’s June
24, 2005 ruling in New York v. EPA, 413 F.3d 3 (D.C. Cir 2005).  In a
separate action, EPA will act on changes made by West Virginia to its
nonattainment new source review (NSR) permit program, also submitted on
December 1, 2005.  

The Clean Air Act requires that all states including the District of
Columbia to submit revisions to their State Implementation Pans that
requires State and local permitting agencies to adopt and submit
revision to their part 51 permitting programs, implementing the minimum
program 

elements of the December 31, 2002 “NSR Reform” rulemaking no later
then January 2, 2006 

(67 FR 80240).  West Virginia amended its regulation to satisfy this
requirement.

Summary of SIP Revision

West Virginia amended its regulation (45 CSR 14) to meet the minimum
requirements of 40 CFR 51.166 and the Clean Air Act.  This approval
action will effectively replace the previous-approved version of 45 CSR
14 as approved in the West Virginia SIP on October 22, 1996 (61 FR
54735).

Other specific requirements of West Virginia’s existing prevention of
significant deterioration (PSD) construction permit program as 45 CSR 14
and the rationale for EPA's proposed action are explained in the NPR and
will not be restated here.  No public comments were received on the NPR.

III.	Final Action

EPA is approving amendments to the State’s prevention of significant
deterioration (PSD) preconstruction air quality permit program
regulations as a revision to the West Virginia SIP.  

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 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 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 may not be challenged later in proceedings
to enforce its requirements.  (See section 307(b)(2).)  This final rule
approves West Virginia’s prevention of significant deterioration (PSD)
preconstruction air quality permit program.

List of Subjects in 40 CFR part 52 

Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

                        _/s/__________________________    

Dated:   10/16/06                         			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 45 CSR 14 to read as follows:

( 52.2520  	Identification of plan.

*	*	*	*	*	

(c) * * * 

	EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP

State citation

[Chapter 16-20 or 45 CSR]	

Title/subject	

State effective date	

EPA approval date	

Additional explanation/

citation at 40 CFR ( 52.2565



*******



45 CSR 14

	

Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution for the Prevention of Significant Deterioration

Section 45-14-1	General	6/2/05	[Insert Federal Register publication
date] [Insert page number where the document begins]



	Section 45-14-2	Definitions	6/2/05	[Insert Federal Register publication
date] [Insert page number where the document begins]



	Section 45-14-3	Applicability	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	New Section

Section 45-14-4	Ambient Air Quality Increments and Ceilings	

6/2/05	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Formerly

Section 45-14-3

Section 45-14-5

	Area Classification	6/2/05	[Insert Federal Register publication date]
[Insert page number where the document begins]

	Formerly Section 45-14-4

Section 45-14-6

	Prohibition of Dispersion Enhancement Techniques

	6/2/05	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Formerly Section 45-14-5

Section 45-14-7

	Registration, Report and Permit Requirements for Major Stationary
Sources and Major Modification	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Formerly Section 45-14-6

Section 45-14-8	Control Technology Requirements	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	Formerly Section 45-14-7

Section 45-14-9	Requirements Relating to the Source’s Impact on Air
Quality	6/2/05	[Insert Federal Register publication date] [Insert page
number where the document begins]

	Formerly Section 45-14-8

Section 45-14-10	Modeling Requirements	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Formerly Section 45-14-9 

Section 45-14-11	Air Quality Monitoring Requirements	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Formerly Section 45-14-10 

Section 45-14-12	Additional Impacts Analysis Requirements	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Formerly Section 45-14-11 

Section 45-14-13	Additional Requirements and Variances for Sources
Impacting Federal Class I Areas	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Formerly Section 45-14-12



Section 45-14-14	Procedures for Sources Employing Innovative Control
Technology	6/2/05	[Insert Federal Register publication date] [Insert
page number where the document begins]

	Formerly Section 45-14-13



Section 45-14-15	Exclusions From Increment Consumption	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Formerly Section 45-14-14

Section 45-14-16	Specific Exemptions	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Formerly Section 45-14-15

Section 45-14-17	Public Review Procedures	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	Formerly Section 45-14-16

Section 45-14-18	Public Meetings	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Formerly Section 45-14-17

Section 45-14-19	Permit Transfer, Cancellation, and Responsibility
6/2/05	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Formerly Section 45-14-18

Section 45-14-20	Disposition of Permits	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Formerly Section 45-14-19

Section 45-14-21	Conflict with Other Permitting Rules	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Formerly Section 45-14-20

Section 45-14-25	Actual PALs	6/2/05	[Insert Federal Register publication
date] [Insert page number where the document begins]

	New Section

Section 45-14-26	Inconsistency Between Rules	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	New Section



*   *   *   *    *    *    *	



*	*	*	*	*	

   

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