  	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

	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.

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 [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-2006-0728 by one of the following methods:

     A.  www.regulations.gov.  Follow the on-line 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 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, 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.  

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 [Insert date 60 days from date of
publication in the Federal Register] without further notice unless EPA
receives adverse comment by [Insert date 30 days from date of
publication in the Federal Register].  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
(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 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.

                                                                        
                             /s/

_________________                   		         
__________________________

Dated:   September 20, 2006  				Donald S. Welsh,

                                      				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
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:

( 52.2520  	Identification of plan.

*	*	*	*	*	

(c)	EPA-Approved Regulations

	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]

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 Program Applicability	5/1/06	

	





Section 45-1-5	

Retired Unit Exemption	5/1/06	

	





*******



Section 45-1-22	

Information Requirements for NOX Budget Permit Applications	5/1/06	

	





*******



Section 45-1-70	

General Monitoring Requirements	5/1/06	

	





Section 45-1-71	

Initial Certification and Recertification Procedures	5/1/06	

	





Section 45-1-72	

Out of Control Periods	5/1/06	

	





*******



Section 45-1-74	

Recordkeeping and Reporting	5/1/06	

	





*******



Section 45-1-89	

Appeal Procedures	5/1/06	

	

New Section 



Section 45-1-90	

Requirements for Stationary Internal Combustion Engines	5/1/06	

	

New Section



Section 45-1-100	

Requirements for Emissions of NOX from Cement Manufacturing Kilns	5/1/06


	





*******



*	*	*	*	*

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

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