  SEQ CHAPTER \h \r 1 	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 70

	[EPA-R03-OAR-2006-0625; FRL-     ]

State Operating Permit Programs; West Virginia; 

Amendment to the Definitions of a “Major Source” and “Volatile
Organic Compound” 

	

AGENCY:  Environmental Protection Agency (EPA).

ACTION:   Direct final rule.

SUMMARY:  EPA is taking direct final action to amend the State of West
Virginia’s operating permit program to correct the definitions of
“major source” and “volatile organic compound.”  West
Virginia’s revision was submitted in response to the Clean Air Act
(CAA) Amendments of 1990 that required States to submit to EPA program
revisions in accordance with the Federal Title V regulations.  EPA
granted final approval of West Virginia’s operating permit program on
November 23, 2001.  West Virginia amended its operating permit program
to address the Federal EPA amendment to the Federal Title V regulations,
which went into effect on November 27, 2001, and this action approves
this amendment.  Any parties interested in commenting on this action
granting approval of West Virginia’s amendment to the Title V
operating permit program should do so at this time.  

DATES:  This rule is effective on [Insert date 60 days after publication
in the Federal Register] without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after 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-2006-0625 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-2006-0625, David Campbell, Chief, Permits and
Technical Assessment Branch, Mailcode 3AP11, 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-2006-0625.  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 Department of Environmental
Protection, Division of Air Quality, 601 57th Street SE, Charleston,
West Virginia 25304.

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

SUPPLEMENTARY INFORMATION:  On September 10, 2003, the State of West
Virginia submitted an amendment to its State operating permit program. 
This amendment is the subject of this document and this section provides
additional information on the amendment by addressing the following
questions:

What is the State operating permit program?

What are the State operating permit program requirements?

What is being addressed in this document?

What is not being addressed in this document?

What changes to West Virginia’s operating permit program is EPA
approving?

Changes to West Virginia’s Operating Permit Program that Corrects a
Deficiency

What action is being taken by EPA?

What is the State Operating Permit Program?

The Clean Air Act Amendments of 1990 required all States to develop
operating permit programs that meet certain Federal criteria.  When
implementing the operating permit programs, the States require certain
sources of air pollution to obtain permits that contain all of their
applicable requirements under the Clean Air Act (CAA).  The focus of the
operating permit program is to improve enforcement by issuing each
source a permit that consolidates all of its applicable CAA requirements
into a Federally-enforceable document.  By consolidating all of the
applicable requirements for a given air pollution source into an
operating permit, the source, the public, and the State environmental
agency can more easily understand what CAA requirements apply and how
compliance with those requirements is determined.

Sources required to obtain an operating permit under this program
include “major” sources of air pollution and certain other sources
specified in the CAA or in EPA’s implementing regulations.  For
example, all sources regulated under the acid rain program, regardless
of size, must obtain operating permits.  Examples of “major” sources
include those that have the potential to emit 100 tons per year or more
of volatile organic compounds, carbon monoxide, lead, sulfur dioxide,
nitrogen oxides, or particulate matter (PM10 and PM2.5); those that emit
10 tons per year of any single hazardous air pollutant (HAP)
specifically listed under the CAA; or those that emit 25 tons per year
or more of a combination of HAPs.  In areas that are not meeting the
national ambient air quality standards (NAAQS) for ozone, carbon
monoxide, or particulate matter, major sources are defined by the
gravity of the nonattainment classification. 

What are the State Operating Permit Program Requirements?

The minimum program elements for an approvable operating permit program
are those mandated by Title V of the Clean Air Act Amendments of 1990
and established by EPA’s implementing regulations at title 40, part 70
- “State Operating Permit Programs” in the Code of Federal
Regulations (40 CFR part 70).  Title V required state and local air
pollution control agencies to develop operating permit programs and
submit them to EPA for approval by November 23, 2001.  Under Title V,
State and local air pollution control agencies that implement operating
permit programs are called “permitting authorities”.   

The State was granted final full approval effective on November 23,
2001.  On September 10, 2003, West Virginia submitted an amendment to
its currently EPA-approved Title V operating permit program.  In
general, West Virginia amended its operating permit program regulation
(45 CSR 30) to correct (1) the definition of “major source;” (2)
strike the existing definition of “volatile organic compound” (VOC)
and insert in its place the reference to the federal definition of VOC;
and, (3) to make other administrative corrections, i.e., revise Director
to Secretary, Division to Department, Office to Division and filing and
effective date changes.  These changes will make regulation 45 CSR 30
consistent with the corresponding provisions of 40 CFR Part 70, which
went into effect on November 27, 2001.   

What is Being Addressed in This Document?

West Virginia has revised 45 CSR 30, Section 2, Definitions of the State
of West Virginia Regulations Governing the Control of Air Pollution to
be consistent with the provisions of 40 CFR Part 70.2 which went into
effect on November 27, 200l.  West Virginia amended the definition of a
“major source” by removing part of the existing definition which
stated “All other stationary source categories regulated by a standard
promulgated under § 111 or § 112 of the Clean Air Act, but only with
respect to those air pollutants that have been regulated for that
category” and inserted in its place “Any other stationary source
category, which as of August 7, 1980 is being regulated under section
111 or 112 of the Clean Air Act.”  This would require a source
belonging to a source category subject to federal New Source Performance
Standards (NSPS) or National Emission Standards for Hazardous Air
Pollutants Standards (NESHAPs) standard to include fugitive emissions of
all regulated pollutants, not just the pollutants regulated by the
particular NSPS or NESHAP, in its calculation of major source status
only if the relevant standard was promulgated as of August 7, 1980.

West Virginia has stricken the definition of “volatile organic
compound” (VOC) and inserted in its place the reference to the Federal
definition of VOC.  This change will make this aspect of 45 CSR 30
consistent with the Federal rule.  EPA has no objection to this
revision.   

In addition, West Virginia include the following administrative
corrections: (1) revise Director to Secretary, Division to Department,
Office to Division; (2) filing date from June 21, 2001 to April 21,
2003, the effective date from July 1, 2001 to June 1, 2003; and the
former rule dates for filing from April 27, 1994 to June 21, 2001 and
effective April 27, 1994 to July 1, 2001.  EPA has no objection to these
revisions.	

What is Not Being Addressed in This Document?  

EPA is not opening the entirety of West Virginia’s Title V operating
permit program up to public comment, we are only addressing changes
listed above.

What Changes to West Virginia’s Operating Permit Program is EPA
Approving?

West Virginia has revised 45 CSR 30 – Definitions (“major source,”
“volatile organic compound,” and other administrative changes as
mentioned above) of the State of West Virginia Regulations Governing the
Control of Air Pollution to be consistent with the provision of 40 CFR
Part 70, which went into effect on November 27, 2001.  

Changes to West Virginia’s Operating Permit Program that Corrects a
Deficiency

EPA has reviewed West Virginia’s September 10, 2003 program amendment
in conjunction with the portion of West Virginia’s program that was
earlier approved.  Based on this review, EPA is granting full approval
of West Virginia’s amended operating permit program.  EPA has
determined that this amendment to West Virginia’s operating permit
program adequately addresses any deficiency.  West Virginia’s
operating permit program, including this amendment submitted on
September 10, 2003, fully meets the minimum requirements of 40 CFR Part
70.

What Action is Being Taken by EPA?

The State of West Virginia has satisfactorily addressed a program
deficiency when EPA made a change to the Federal rule.  The operating
permit program amendment that is the subject of this document considered
together with that portion of West Virginia’s operating permit program
that was earlier approved fully satisfy the requirements of 40 CFR Part
70 and the Clean Air Act.  Therefore, EPA is taking direct final action
to fully approve the West Virginia Title V operating permit program in
accordance with 40 CFR 70.2 definitions of “a major source” and
“volatile organic compound.”

EPA is publishing this rule without prior proposal because the Agency
views this as a noncontroversial amendment and anticipates no adverse
comments.  However, in the “Proposed Rule” section of today’s
Federal Register EPA is publishing a separate document that will serve
as the proposal to approve this amendment to West Virginia’s operating
permit program if adverse comments are filed relevant to the issues
discussed in this action.  This rule will be effective on [Insert date
60 days from date of publication in the Federal Register].  If EPA
receives adverse comments, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.  EPA will address all public comments in a subsequent final rule
based on the proposed rule.  EPA will not institute a second comment
period on this action.  Any parties interested in commenting must do so
at this time.  

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 Fed. Reg. 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 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), 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 approves a State rule
implementing a Federal standard, 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 approves a state rule
implementing a Federal standard. 

In reviewing State operating permit program 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 an operating permit program for
failure to use VCS.  It would thus be inconsistent with applicable law
for EPA, when it reviews an operating permit program submission, to use
VCS in place of an operating permit program 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
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 “Attorney General’s Supplemental
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated
Takings” issued under the executive order.  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 fully approving West Virginia’s Title V
operating permit program may not be challenged later in proceedings to
enforce its requirements.  (See section 307(b)(2).)  

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure, Air
pollution control,  

Operating permits, Reporting and recordkeeping requirements. 

   

Dated:   02/16/07					__/s/_____________________________

                       						Donald S. Welsh,                           
     								Regional Administrator,

                                  					Region III.

40 CFR Part 70 is amended as follows:

PART 70--[AMENDED]						

1.  The authority citation for part 70 continues to read as follows: 

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

2.  Appendix A to part 70 is amended by inserting paragraph (e) in the
entry for West Virginia to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs

* * * * *

West Virginia

	(e)  The West Virginia Department of Natural Resources and
Environmental Control submitted program amendment on September 10, 2003.
 This rule amendment contained in the 

September 10, 2003 submittal is necessary to make the current
definitions of a “major source” and “volatile organic compound”
consistent with the corresponding provisions of 40 CFR part 70, which
went into effect on November 27, 2001.  The State is hereby granted
approval effective on  [Insert date 60 days after publication in the
Federal Register].					

 PAGE   2 

 PAGE   1 

 PAGE   3 

 PAGE   12 

 PAGE   11 

