ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
EPA­
R03­
OAR­
2006­
0528;
FRL­
]

Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
West
Virginia;
Amendments
to
Nonattainment
New
Source
Review
(
NSR)
Air
Quality
Permit
Program
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Proposed
rule.

SUMMARY:
EPA
is
proposing
to
approve
a
revision
to
the
West
Virginia
State
Implementation
Plan
(
SIP).
The
revision
consists
of
amendments
to
West
Virginia's
existing
Nonattainment
New
Source
Review
(
NSR)
preconstruction
air
quality
permit
program.
This
action
is
being
taken
under
the
Clean
Air
Act
(
CAA
or
the
Act).
In
a
separate
action,
EPA
will
address
changes
made
by
West
Virginia
to
its
prevention
of
significant
deterioration
(
PSD)
air
quality
permit
program,

also
submitted
on
December
1,
2005.

DATES:
Written
comments
must
be
received
on
or
before
[
insert
date
30
days
from
date
of
publication].

ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
Number
EPA­
R03­
OAR­
2006­

0528
by
one
of
the
following
methods:

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

B.
E­
mail:
campbell.
dave@
epa.
gov
C.
Mail:
EPA­
R03­
OAR­
2006­
0528,
David
Campbell,
Chief,
Permits
and
Technical
Assessment
Branch,
Mailcode
3AP11,
U.
S.
Environmental
Protection
Agency,
Region
III,
1650
Arch
Street,
Philadelphia,
Pennsylvania
19103.
2
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
2006­
0528.
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
A
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
email
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.
3
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:
Rosemarie
Nino,
(
215)
814­
3377,
or
by
email
at
nino.
rose@
epa.
gov.

SUPPLEMENTARY
INFORMATION:
The
supplementary
information
is
arranged
as
follows:

I.
Background
II.
Program
Review
A.
What
is
being
address
in
this
document?

B.
What
are
the
program
changes
that
EPA
is
approving?

III.
Proposed
Action
IV.
Statutory
and
Executive
Order
Reviews.

I.
Background
On
December
31,
2002,
the
U.
S.
Environmental
Protection
Agency
(
EPA)
published
revisions
to
the
Federal
prevention
of
significant
deterioration
(
PSD)
and
nonattainment
new
4
source
review
(
NSR)
regulations
(
67
FR
80186).
These
revisions
are
commonly
referred
to
as
EPA's
"
NSR
Reform"
regulations
and
became
effective
on
March
3,
2003.
These
regulatory
revisions
included
provisions
for
baseline
emissions
determinations,
actual­
to­
future
actual
methodology,
Plantwide
Applicability
Limits
(
PALs),
Clean
Units,
and
Pollution
Control
Projects
(
PCPs).
The
December
2002
rulemaking
action
required
State
and
local
permitting
authorities
to
include
the
NSR
Reform
measures
as
minimum
program
elements
in
their
State
implementation
plans
(
SIP)
and
to
submit
these
revisions
to
EPA
by
January
2,
2006.

The
United
States
Court
of
Appeals
for
the
District
of
Columbia
Circuit
ruled
in
New
York
v.
EPA,
45
F.
3d
3
(
D.
C.
Cir.
June
24,
2005)
that
EPA
lacked
the
authority
to
promulgate
the
Clean
Unit
provisions,
and
the
Court
requested
that
EPA
vacate
that
portion
of
the
2002
Federal
regulation,
codified
at
40
CFR
52.21(
x),
as
contrary
to
the
statute.
Also,
the
Court
determined
EPA
lacked
the
authority
to
create
PCP
exceptions
from
NSR
and
vacated
those
parts
of
the
1991
and
2002
rules,
codified
at
40
CFR
52.21(
b)(
32)
and
52.21(
z),
as
contrary
to
the
statute.

On
December
1,
2005,
EPA
Region
III
received
a
revision
to
the
West
Virginia
State
Implementation
Plan
(
SIP)
from
the
West
Virginia
Department
of
Environmental
Protection
(
WVDEP).
This
SIP
revision
consists
of
Legislative
Rule
45
CSR
19
­
Permits
for
Construction
and
Major
Modification
of
Major
Stationary
Sources
of
Air
Pollution
Which
Cause
or
Contribute
to
Nonattainment
adopted
by
the
State
of
West
Virginia
on
April
8,
2005
and
effective
June
1,

2005.
The
State
adopted
the
regulation
in
order
to
meet
the
relevant
plan
requirements
of
40
CFR
51.165.
On
December
22,
2005,
WVDEP
provided
supplemental
materials
consisting
of
a
5
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
19,
as
set
forth
in
the
attached
table,
that
pertain
to
"
Clean
Units"
and
"
Pollution
Control
Project"
in
order
to
ensure
that
their
federallyapproved
regulations
are
consistent
with
the
United
States
Court
of
Appeals
for
the
District
of
Columbia
Circuit's
June
24,
2005
ruling.

The
WVDEP
is
seeking
approval
of
amendments
in
45
CSR
19
in
order
to
meet
the
minimum
requirements
of
40
CFR
51.165
and
the
Clean
Air
Act.
It
should
be
noted
that
West
Virginia
also
submitted
amendments
to
its
prevention
of
significant
deterioration
(
PSD)

regulations
on
December
1,
2005.
The
EPA
will
address
those
amendments
in
a
separate
rulemaking
action.

II
Program
Review
A.
What
is
being
addressed
in
this
document?

1.
As
stated
in
the
December
31,
2002
"
NSR
Reform"
rulemaking,
State
and
local
permitting
agencies
were
required
to
adopt
and
submit
revisions
to
their
part
51
permitting
programs,
implementing
the
minimum
program
elements
of
that
rulemaking
no
later
then
January
2,
2006
(
67
FR
80240).
With
this
submittal,

West
Virginia
requests
approval
of
program
revisions
to
satisfy
this
requirement.

2.
On
December
1,
2005,
WVDEP
submitted
regulatory
revisions
to
EPA
for
approval.
The
submitted
West
Virginia
Rule
was
entitled,
"
45
CSR
19
­
Permits
for
Construction
and
Major
Modification
of
Major
Stationary
Sources
of
Air
6
Pollution
Which
Cause
or
Contribute
to
Nonattainment"
and
was
adopted
April
8,

2005
and
effective
June
1,
2005.

3.
By
letter
dated
December
22,
2005,
WVDEP
requested
that
EPA
exclude
from
its
December
1,
2005
request
for
approval
into
the
SIP
those
provisions
of
45
CSR
19
that
pertain
to
the
Clean
Unit
and
Pollution
Control
Project
(
PCP)
provisions
of
40
CFR
51.165.
The
specific
provisions
to
be
excluded
were
set
forth
in
a
table
attached
to
the
letter.
The
WVDEP
made
this
request
in
order
for
its
SIP
to
be
consistent
with
the
United
States
Court
of
Appeals
for
the
District
of
Columbia
Circuit
June
24,
2005
ruling
which
vacated
those
provisions
of
the
Federal
rules.

West
Virginia
also
asked
that
EPA
not
act
upon
the
provisions
of
45
CSR
19.17.4
pertaining
to
the
recordkeeping
and
reporting
requirements
for
sources
that
elect
to
use
the
actual­
to­
projected
actual
emission
test
and
where
there
is
a
"
reasonable
possibility"
that
a
project
may
result
in
a
significant
net
emissions
increase.
The
"
reasonable
possibility"
clause
of
the
corresponding
provisions
of
the
Federal
rules
(
51.165(
a)(
6))
was
remanded
to
EPA
in
the
June
24,
2005
ruling
mentioned
above.
West
Virginia
has
instructed
EPA
to
not
consider
this
clause
as
part
of
this
SIP
revision
request.
In
its
December
22,
2005
letter,
WVDEP
stated
its
intent
to
make
any
revisions
to
45
CSR
19
necessary
to
incorporate
and
implement
Federal
program
revisions
once
EPA
takes
further
action
on
the
remand
of
40
CFR
51.165(
a)(
6).

B.
What
are
the
program
changes
that
EPA
is
approving?
7
In
its
December
2002
regulatory
action,
EPA
dramatically
changed
many
aspects
of
the
regulations
governing
the
PSD
and
nonattainment
NSR
programs
(
together,
as
"
NSR").
These
changes
affected
the
NSR
applicability
requirements
to
allow
sources
more
flexibility
to
pursue
modifications
of
their
facilities
in
order
to
respond
to
changes
in
the
marketplace
and
to
plan
for
plant
improvements.
The
goals
of
the
changes
were
to
provide
greater
regulatory
certainty,

administrative
flexibility,
and
permit
streamlining,
while
ensuring
the
current
level
of
environmental
protection,
or
more,
from
the
existing
program.

West
Virginia
has
fully
embraced
EPA's
NSR
reform
regulatory
revisions
and
sought
to
develop
a
regulatory
program
that
closely
reflects
the
Federal
NSR
regulations
and
conforms
to
the
minimum
requirements
of
40
CFR
51.165.
As
such,
West
Virginia
has
translated
the
Federal
NSR
requirements
into
the
regulatory
text
of
45
CSR
19
in
a
manner
that
is
consistent
with
State
regulatory
development
procedures.
Since
West
Virginia
has
sought
to
incorporate
the
majority
of
the
Federal
regulatory
language
into
its
regulations,
the
following
is
an
examination
of
only
those
few
areas
in
which
the
State
altered
the
Federal
regulatory
text
or
approach.
A
more
detailed
comparison
of
45
CSR
19
to
the
Federal
requirements
of
40
CFR
51.165
can
be
found
in
the
technical
support
document
(
TSD)
prepared
for
this
rulemaking.

Notable
Differences
in
45
CSR
19
­
Permits
for
Construction
and
Major
Modification
of
Major
Stationary
Sources
of
Air
Pollution
Which
Cause
or
Contribute
to
Nonattainment:

1.
In
the
provisions
for
setting
the
PAL
level
at
45
CSR
19­
23.6,
the
reference
to
the
"
baseline
actual
emissions"
erroneously
cites
to
Section
2.52
of
the
rules
for
8
purposes
of
defining
the
term
"
baseline
actual
emissions."
The
appropriate
citation
for
this
term
is
Section
2.9.
This
typographical
error
will
not
adversely
affect
implementation
of
the
regulations
since
the
text
of
45
CSR
19­
23.6
directly
identifies
"
baseline
actual
emissions"
and
that
term
is
only
defined
at
Section
2.9
and
the
incorrect
citation
to
Section
2.52
does
not
confuse
or
otherwise
alter
the
meaning
of
45
CSR
19­
23.6.

2.
In
a
change
unrelated
to
the
Federal
NSR
Reform
efforts,
West
Virginia
changed
the
definition
for
"
Offset"
at
45
CSR
19­
2.41
to
read
".
.
.
provided
that
the
amount
of
reduction
in
emissions
at
the
existing
source
(
or
an
emission
unit
with
such
sources),
is
greater
on
tons
per
year
basis."
The
previous
definition
defined
offsets
in
terms
of
pounds
per
hours
and/
or
tons
per
year
basis.
The
regulation
is
now
consistent
with
the
existing
Federal
requirement
because
the
determination
of
necessary
offsets
must
be
based
on
tons
per
year
reductions.
EPA
approves
this
change.

3.
In
another
change
unrelated
to
the
Federal
NSR
Reform
efforts,
West
Virginia
changed
Table
19A
to
include
"
Subpart
I"
ozone
nonattainment
areas
along
with
marginal
and
moderate
nonattainment
areas
for
purposes
of
defining
significant
net
emissions
increase
levels
for
purposes
of
NSR
applicability.
This
change
is
acceptable.

III.
Proposed
Action
9
Based
on
the
above
analysis,
EPA
has
determined
that
the
amendments
to
West
Virginia's
nonattainment
new
source
review
(
NSR)
permit
programs
at
45
CSR
19,
as
submitted
on
December
1,
2005
and
supplemented
on
December
22,
2005,
meet
the
minimum
requirements
of
40
CFR
51.166
and
the
Clean
Air
Act.
This
amendment
is
approvable
as
a
revision
to
the
West
Virginia
SIP.

IV.
Statutory
and
Executive
Order
Reviews
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
this
proposed
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
Fed.

Reg.
28355
(
May
22,
2001)).
This
action
merely
proposes
to
approve
state
law
as
meeting
Federal
requirements
and
imposes
no
additional
requirements
beyond
those
imposed
by
state
law.

Accordingly,
the
Administrator
certifies
that
this
proposed
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
proposes
to
approve
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
proposed
rule
also
does
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
10
Order
13175
(
65
FR
67249,
November
9,
2000),
nor
will
it
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),
because
it
merely
proposes
to
approve
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
proposed
rule
also
is
not
subject
to
Executive
Order
13045
(
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.

As
required
by
section
3
of
Executive
Order
12988
(
61
FR
4729,
February
7,
1996),
in
issuing
this
proposed
rule,
EPA
has
taken
the
necessary
steps
to
eliminate
drafting
errors
and
ambiguity,

minimize
potential
litigation,
and
provide
a
clear
legal
standard
for
affected
conduct.
EPA
has
complied
with
Executive
Order
12630
(
53
FR
8859,
March
15,
1988)
by
examining
the
takings
implications
of
the
rule
in
accordance
with
the
A
Attorney
General
=

s
Supplemental
Guidelines
for
11
the
Evaluation
of
Risk
and
Avoidance
of
Unanticipated
Takings
@

issued
under
the
executive
order.
This
proposed
rule,
approving
amendments
to
West
Virginia's
Nonattainment
New
Source
Review
(
NSR)
Permit
Program,
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act
of
1995
(
44
U.
S.
C.
3501
et
seq.).

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.

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

______
7/
24/
06______________
___/
s/_________________________
Dated:
Donald
S.
Welsh,
Regional
Administrator,
Region
III.
