

[Federal Register: February 8, 2007 (Volume 72, Number 26)]
[Rules and Regulations]               
[Page 5932-5936]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe07-10]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0915; FRL-8276-3]

 
Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Amendments to the Minor New Source Review Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
West Virginia State Implementation Plan (SIP). The revisions set forth 
the procedures for stationary source reporting and the criteria for 
obtaining a permit to construct and operate a new stationary source 
which is not a major stationary source. The rule establishes the 
requirements for obtaining an administrative update to an existing 
permit, temporary permit or a general permit, and for filling 
notifications and maintaining records of changes not otherwise subject 
to the permit requirements of this rule. The rule establishes public 
participation requirements as well as procedures for the transfer, 
suspension and revocation of permits. EPA is approving these revisions 
to West Virginia's SIP in accordance with the requirements of the Clean 
Air Act.

DATES: This rule is effective on April 9, 2007 without further notice, 
unless EPA receives adverse written comment by March 12, 2007. 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-2006-0915 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: campbell.dave@epa.gov.
    C. Mail: EPA-R03-OAR-2006-0915, 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-
2006-0915. 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

[[Page 5933]]

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: Rosemarie Nino, (215) 814-3377, or by 
e-mail at nino.rose@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On September 10, 2003, the West Virginia Department of the 
Environmental Protection (WVDEP) submitted a formal revision to its 
State Implementation Plan (SIP). The SIP revision consists of 
amendments to West Virginia Legislative Rule 45 CSR 13 issued by the 
State of West Virginia on March 6, 2003, and effective June 1, 2003. 
The State amended the regulations in order to (1) set forth the 
procedures for stationary source reporting and the criteria for 
obtaining a permit to construct and operate a new stationary source 
which is not a major stationary source and to modify a non-major 
stationary source; (2) establishes the requirements for obtaining an 
administrative update to an existing permit, temporary permit or a 
general permit, and for filling notification and maintaining records of 
changes not otherwise subject to the permit requirements of this rule; 
and (3) establishes public participation requirements as well as 
procedures for the transfer, suspension and revocation of permits. West 
Virginia is seeking approval of these amendments to this rule pursuant 
to Sections 110(a)(2)(C) and 112(l) of the Clean Air Act, and 40 CFR 
51.160 through 51.164.

II. Summary of SIP Revision and Program Review

A. What is being addressed in this document?

    West Virginia Legislative Rule 45 CSR 13 is part of the West 
Virginia SIP approved by the USEPA to assure attainment and maintenance 
of attainment with the national ambient air quality standards (NAAQS). 
The proposed revision were initiated by the West Virginia Department of 
the Environment Protection (WVDEP) as part of an effort to streamline 
the permitting program by eliminating unnecessary permitting 
requirements for insignificant sources, broadening the general permit 
mechanism, reducing agency review timeframes for permit action, 
modifying applicability thresholds and reducing application fees for 
general permits.

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

    The amendments are summarized as follows:
    1. Permitting thresholds for modification and stationary sources 
have been revised from six (6) pounds per hour (pph) or more or ten 
(10) tons per year (tpy) or more to six (6) pph and ten (10) tpy or 
more, or more than 144 pounds per calendar day (ppd) in any regulated 
air pollutant (Section 2.17.a) and (Section 2.24.b). WVDEP recognizes 
that both thresholds, the 6 pph and 10 tpy and the 144 ppd have the 
potential to allow some sources to emit up to 26 tons a year without 
obtaining a permit, but WVDEP believes the 144 ppd threshold and the 
Department's authority to prevent ``statutory air pollution'' will 
serve as useful backstops in those relatively uncommon situations.
    2. The de minimis list in Table 45-13B has been expanded to include 
additional commercial and residential maintenance and upkeep 
activities. (Table 45-13B, Nos. 39 and 40).
    3. WVDEP review times have been shortened from 180 day to 90 days 
for Class II general permit registrations; 180 days to 60 days for 
temporary permits; and, 180 days to 45 days for Class I general permits 
(Section 5.7). WVDEP will be able to meet the deadlines in this rule.
    4. Revisions to general permit language to expand authority by 
removing ``facility-wide'' restriction. Also, a provision for simpler 
general permits (Class I) has been added which does not require public 
notice for each Class I registration and requires a smaller fee. WVDEP 
has added general permit requirements to Section 5.12.
    5. A revision to provide authority to revise general permit 
registrations through administrative updates. (Section 4.)
    6. A revision to public notice requirements, from a 45-day notice 
at draft permit stage, to a 30-day notice and restored 30-day notice by 
applicant at application stage. (Section 8.4.)
    7. A reduction of registration application fees for general permits 
from $1,000 to $250 for Class I and $500 for Class II general permits, 
with an exception for ``small businesses'' applying for Class I general 
permits. Also, an exemption for Class I general permits from the 
additional fees for NSPS, NESHAPs, etc. (Section 12.1.)
    8. Revised language which clarifies that commercial display ad and 
sign requirements occur contemporaneously with the WVDEP's legal ad (at 
draft permit stage), unless the applicant wishes to place the ad/sign 
earlier. (Section 8.4.a and 8.5.a.)
    9. Various technical revisions to the rule, i.e., changed Director 
to Secretary.

III. Final Action

    EPA is approving these amendments to West Virginia 45 CSR 13--
Permits for Construction, Modification, Relocation and Operation of 
Stationary sources of Air Pollutants, Notification Requirements, 
Administrative Updates, Temporary Permits, General Permits and 
Procedures for Evaluation as a revision to the state's minor new source 
review program. The amendments are consistent with 40 CFR 51.160 
through 51.164 and sections 110 and 112(l) of the Clean Air Act. 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 April 9, 2007 without further notice 
unless EPA receives adverse comment by March 12, 2007. 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,

[[Page 5934]]

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 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 approves a state rule implementing a Federal 
standard.
    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 April 9, 2007. 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).) EPA is approving 
these amendments to West Virginia 45 CSR 13--Permits for Construction, 
Modification, Relocation and Operation of Stationary sources of Air 
Pollutants, Notification Requirements, Administrative Updates, 
Temporary Permits, General Permits and Procedures for Evaluation as a 
revision to the state's minor new source review program.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

     Dated: January 31, 2007.
James W. Newsom,
Acting 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 
the entry 45 CSR 13 to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

[[Page 5935]]



                                                    EPA-Approved Regulations in the West Virginia SIP
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                                                                                  State
State citation [Chapter 16-20 or                 Title/subject                  effective         EPA approval date           Additional explanation/
             45 CSR]                                                               date                                      citation at 40 CFR 52.2565
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     45 CSR 13 Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements,
                               Administrative Updates, Temporary Permits, General Permits, and Procedures for Evaluation

                                                                      * * * * * * *
Section 45-13-1.................  General....................................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Section 45-13-2.................  Definitions................................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Section 45-13-3.................  Reporting Requirements for Stationary            6/01/03  2/08/07 [Insert page number
                                   Sources.                                                  where the document begins]
Section 45-13-4.................  Administrative Updates to Existing Permits       6/01/03  2/08/07 [Insert page number    Section Title Changed.
                                   and General Permit Registrations.                         where the document begins]
Section 45-13-5.................  Permit Application and Reporting                 6/01/03  2/08/07 [Insert page number
                                   Requirements for Construction of and                      where the document begins]
                                   Modifications to Stationary Sources.
Section 45-13-6.................  Determination of Compliance of Stationary        6/01/03  2/08/07 Insert page number
                                   Sources.                                                  where the document begins]
Section 45-13-7.................  Modeling...................................      6/01/03  2/08/07 Insert page number
                                                                                             where the document begins]
Section 45-13-8.................  Public Review Procedures...................      6/01/03  2/08/07 Insert page number
                                                                                             where the document begins]
Section 45-13-9.................  Public Meetings............................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Section 45-13-10................  Permit Transfer, Suspension, Revocation and      6/01/03  2/08/07 [Insert page number
                                   Responsibility.                                           where the document begins]
Section 45-13-11................  Temporary Construction or Modification           6/01/03  2/08/07 [Insert page number
                                   Permits.                                                  where the document begins]
Section 45-13-12................  Permit Application Fees....................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Section 45-13-13................  Inconsistency Between Rules................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Section 45-13-14................  Statutory Air Pollution....................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Section 45-13-15................  Hazardous Air Pollutants...................      6/01/03  2/08/07 [Insert page number
                                                                                             where the document begins]
Table 45-13A....................  Potential Emission Rate....................      6/01/00  2/28/03, 68 FR 9559            (c)(52).
Table 45-13B....................  De Minimis Sources.........................      6/01/03  2/08/07 [Insert page number    Table Title Change.
                                                                                             where the document begins]

                                                                      * * * * * * *
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[FR Doc. E7-2126 Filed 2-7-07; 8:45 am]

BILLING CODE 6560-50-P
