

[Federal Register: September 28, 2006 (Volume 71, Number 188)]
[Rules and Regulations]               
[Page 56881-56884]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se06-13]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0728; FRL-8225-1]

 
 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: Direct final rule.

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SUMMARY: EPA is taking direct final action to convert a conditional 
approval in the West Virginia State Implementation Plan (SIP) to a full 
approval. The SIP revision pertains to nitrogen oxides (NOX) 
emission reductions required in West Virginia to meet Phase II of the 
NOX SIP Call. In order to meet the Phase II submission due 
date, the West Virginia Department of Environmental Protection (WVDEP) 
adopted its Phase II regulation under its emergency rule procedures. 
EPA granted conditional approval of the emergency rule contingent upon 
the WVDEP adopting a permanent rule with an effective date no later 
than the June 2, 2006 sunset date of its emergency rule and submitting 
the permanent rule as a formal SIP revision to EPA by July 1, 2006. 
West Virginia has met all the terms of the conditional approval by 
adopting its permanent rule with an effective date of May 1, 2006, and 
submitting the permanent rule to EPA before July 1, 2006. EPA is 
approving this revision to West Virginia's SIP in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on November 27, 2006 without further 
notice, unless EPA receives adverse written comment by October 30, 
2006. 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-

[[Page 56882]]

R03-OAR-2006-0728 by one of the following methods:
    A. http://www.regulations.gov. Follow the online instructions for 

submitting comments.
    B. E-mail: morris.makeba@epa.gov.
    C. Mail: EPA-R03-OAR-2006-0728, Makeba Morris, Chief, Air Quality 
Planning Branch Mailcode 3AP21, 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-
2006-0728. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

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 http://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 
http://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 http://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: 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) proposing to grant conditional approval of 
West Virginia's emergency regulation 45CSR1 to control NOX 
emissions from large stationary internal combustion engines in the 
State. No comments were received by EPA and on January 11, 2006 (71 FR 
1696), EPA finalized the conditional approval. EPA's rationale for 
conditionally approving West Virginia's emergency rule as well as a 
summary of the requirements of Phase II of the NOX SIP Call 
were provided in the October 20, 2005 NPR, and will not be restated 
here. In the January 11, 2006 rulemaking, EPA conditioned full approval 
contingent upon the WVDEP adopting a permanent rule that corresponds to 
emergency rule 45CSR1, 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. On May 22, 2006, as amended on June 
16, 2006, WVDEP submitted to EPA a revision to its SIP to satisfy the 
conditional requirements.

II. Summary of SIP Revision

    On May 22, 2006, the WVDEQ submitted a formal revision to its SIP, 
and on June 16, 2006 amended the revision to include documents that 
were inadvertently omitted. The SIP revision consists of the State's 
fully-adopted permanent rule 45CSR1 which became effective on May 1, 
2006, and which immediately superseded and replaced its emergency rule.

III. Final Action

    West Virginia has corrected the deficiencies identified by EPA in 
its conditional approval, and has satisfied all the terms of the 
conditional approval. EPA is, therefore, converting its conditional 
approval of the West Virginia emergency rule 45CSR1 to a full approval 
of its permanent rule 45CSR1.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the SIP revision if adverse comments are 
filed. This rule will be effective on November 27, 2006 without further 
notice unless EPA receives adverse comment by October 30, 2006. If EPA 
receives adverse comment, 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. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment.

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 (Pub. L. 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

[[Page 56883]]

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 November 27, 2006. 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 to convert West Virginia's NOX 
SIP Call Phase II rule from a conditional approval to a full approval 
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.

    Dated: September 20, 2006.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  52.2520, the table in paragraph (c) is amended by revising 
entries for [45CSR] Series 1, Sections 1-5, 22, 70-72, 74, and 100, and 
by adding entries for Sections 89 and 90 to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) EPA-Approved Regulations

                                EPA-Approved Regulations in the West Virginia SIP
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                                                                State         EPA       Additional explanation/
 State citation [Chapter 16-20 or        Title/subject        effective     approval       citation at 40 CFR
             45 CSR]                                             date         date              52.2565
----------------------------------------------------------------------------------------------------------------
[45 CSR] Series 1--Control and Reduction of Nitrogen Oxides From Non-Electric Generating Units As a Means to
 Mitigate Transport of Ozone Precursors
----------------------------------------------------------------------------------------------------------------
Section 45-1-1...................  General.................       5/1/06
Section 45-1-2...................  Definitions.............       5/1/06
Section 45-1-3...................  Acronyms................       5/1/06
Section 45-1-4...................  NOX Budget Trading             5/1/06
                                    Program Applicability.
Section 45-1-5...................  Retired Unit Exemption..       5/1/06

                                                  * * * * * * *
Section 45-1-22..................  Information Requirements       5/1/06
                                    for NOX Budget Permit
                                    Applications.

                                                  * * * * * * *
Section 45-1-70..................  General Monitoring             5/1/06
                                    Requirements.
Section 45-1-71..................  Initial Certification          5/1/06
                                    and Recertification
                                    Procedures.
Section 45-1-72..................  Out of Control Periods..       5/1/06

                                                  * * * * * * *
Section 45-1-74..................  Recordkeeping and              5/1/06
                                    Reporting.

                                                  * * * * * * *
Section 45-1-89..................  Appeal Procedures.......       5/1/06               New Section.

[[Page 56884]]


Section 45-1-90..................  Requirements for               5/1/06               New Section.
                                    Stationary Internal
                                    Combustion Engines.
Section 45-1-100.................  Requirements for               5/1/06
                                    Emissions of NOX from
                                    Cement Manufacturing
                                    Kilns.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  52.2522  [Removed and Reserved]

0
3. In Sec.  52.2522, paragraph (i) is removed and reserved.

 [FR Doc. E6-15981 Filed 9-27-06; 8:45 am]

BILLING CODE 6560-50-P
