	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:	Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of West Virginia.  This revision consists of
amendments to West Virginia’s existing Nonattainment New Source Review
(NSR) preconstruction air quality permit program regulation.  The
intended effect of this action is to approve a State Implementation Plan
(SIP) revision submitted by West Virginia Department of Environmental
Quality.

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-2006-0528.  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,
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
e-mail at nino.rose@epa.gov.  

SUPPLEMENTARY INFORMATION: 

 

I.	Background	

On August 9, 2006 (71 FR 45482), EPA published a notice of proposed
rulemaking (NPR) for the State of West Virginia.  The NPR proposed
approval of amendments to West Virginia’s nonattainment new source
review (NSR) air quality permit program.  The formal SIP revision was
submitted by West Virginia Department of Environmental Protection
(WVDEP) 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 19, 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 prevention of significant deterioration
(PSD) construction 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 Plans that
requires State and local permitting agencies to adopt and submit
revisions to their part 51 permitting programs, implementing the minimum
program elements of the December 31, 2002 “NSR Reform” rulemaking no
later than 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 19) to meet the minimum
requirements of 

40 CFR 51.165 and the Clean Air Act.  This approval action will
effectively replace the 

previously approved version of 45 CSR 19 as approved in WV SIP on July
2, 1985 (50 FR

 27247).



Other specific requirements of West Virginia’s existing Nonattainment
New Source Review (NSR) preconstruction air quality permit program as 45
CSR 19 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 West Virginia’s Nonattainment New Source Review (NSR)
preconstruction air quality permit program regulation (45 CSR 19) 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 Nonattainment New Source Review (NSR) 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:   10/06/06                        			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 removing the
entry for (Ch. 16-20) Series XIX and replacing it with an entry for 45
CSR 19 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 19

	

Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution Which Cause or Contribute to Nonattainment

Section 45-19-1

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

	Section 45-19-2	Definitions	6/2/05	[Insert Federal Register publication
date] [Insert page number where the document begins]

	Section 45-19-3	Applicability	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Section 45-19-4	Conditions for a Permit Approval for Proposed Major
Sources that Would Contribute to a Violation of NAAQS	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Section 45-19-5	Conditions for Permit Approval for Sources Locating In
Attainment or Unclassifiable Areas that Would Cause a New Violation of a
NAAQS	6/2/05	[Insert Federal Register publication date] [Insert page
number where the document begins]

	Section 45-19-7	Baseline for Determining Credit for Emission Offsets.
6/2/05	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Section 45-19-8	Location of Emissions Offsets	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	Section 45-19-9	Administrative Procedures for Emission Offset Proposals
6/2/05	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Section 45-19-12	Reasonable Further Progress	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	Section 45-19-13	Source Impact Analysis	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Section 45-19-14	Permit Requirements for Major Stationary Sources and
Major Modifications	6/2/05	[Insert Federal Register publication date]
[Insert page number where the document begins]

	Section 45-19-15	Public Review Procedures	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	Section 45-19-16	Public Meetings	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Section 45-19-17	Permit Transfer, Cancellation and Responsibility
6/2/05	[Insert Federal Register publication date] [Insert page number
where the document begins]

	Section 45-19-18	Disposition of Permits	6/2/05	[Insert Federal Register
publication date] [Insert page number where the document begins]

	Section 45-19-19	Requirements for Air Quality Models	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Section 45-19-

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

	Section 45-19-24	Conflict with Other Permitting Rules	6/2/05	[Insert
Federal Register publication date] [Insert page number where the
document begins]

	Section 45-19-25	Inconsistency Between Rules	6/2/05	[Insert Federal
Register publication date] [Insert page number where the document
begins]

	*   *   *   *    *    *    *	



*	*	*	*	*	 

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