

[Federal Register: December 18, 2007 (Volume 72, Number 242)]
[Rules and Regulations]               
[Page 71576-71579]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de07-2]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-R03-OAR-2007-0448; FRL-8506-4]

 
Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Clean Air Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a revision to the West Virginia State 
Implementation Plan (SIP) submitted on June 8, 2007. This revision 
incorporates provisions related to the implementation of EPA's Clean 
Air Interstate Rule (CAIR), promulgated on May 12, 2005 and 
subsequently revised on April 28, 2006 and December 13, 2006, and the 
CAIR Federal Implementation Plan (CAIR FIP) concerning sulfur dioxide 
(SO2), nitrogen oxides (NOX) annual, and 
NOX ozone season emissions for the State of West Virginia, 
promulgated on April 28, 2006 and subsequently revised on December 13, 
2006. West Virginia is subject to the CAIR FIP that implements the CAIR 
requirements by requiring certain EGUs to participate in the EPA-
administered Federal CAIR SO2, NOX annual, and 
NOX ozone season cap-and-trade programs. In accordance with 
the Clean Air Act, EPA is approving this West Virginia SIP revision as 
an abbreviated SIP revision which addresses the methodology to be used 
to allocate annual and ozone season NOX allowances under the 
CAIR FIPs. In this action, EPA is not making any changes to the CAIR 
FIP, but is amending the appropriate appendices in the CAIR FIP trading 
rules simply to note that approval.

EFFECTIVE DATE: The final rule is effective on December 18, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2007-0448. 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, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308 or by 
e-mail at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 1, 2006, West Virginia submitted a full SIP revision to 
meet the requirements of CAIR as promulgated on May 12, 2005. The SIP 
revision is comprised of three regulations: 45CSR39 (NOX 
annual trading program); 45CSR40 (NOX ozone season trading 
program); and 45CSR41 (SO2 annual trading program). The 
regulations adopted the 40 CFR part 96 model rules as set forth in the 
May 12, 2005 rulemaking, however, because revisions to 40 CFR part 96 
were finalized after the State had started its rulemaking process, did 
not include the changes to the model rules that were made as part of 
the April 28, 2006 CAIR FIP. Consistent with the provisions of the 
CAIR, West Virginia submitted a letter on June 8, 2007, requesting that 
portions of its June 1, 2006 SIP revision be considered as an 
abbreviated SIP revision. The June 8, 2007 letter designated the 
NOX allocation methodology provisions applicable to EGUs 
under the CAIR FIP and originally submitted as part of its June 1, 2006 
CAIR SIP revision as replacing the corresponding provisions of the CAIR 
FIPs. Consistent with this request, EPA is treating the following 
provisions of West Virginia's CAIR rules an abbreviated SIP revision: 
Sec.  45-39-40, 45-39-41, and 45-39-42 ; and Sec. Sec.  45-40-40, 45-
40-41, and 45-40-42, except for paragraphs 40.3, 42.2.c, 42.2.d, 
42.2.e, 42.3.a.2, and 42.4.b. The NOX allowance allocation 
methodology in these provisions of West Virginia's June 1, 2006 SIP 
revision is consistent with the methodology in part 96 and the FIP.
    On September 13, 2007 (72 FR 52289), EPA published a direct final 
rulemaking notice (DFRN) to approve the June 8, 2007 revision to West 
Virginia's SIP. The DFRN approved, as an abbreviated SIP, West 
Virginia's methodology for allocating NOX allowances for the 
NOX annual and NOX ozone season trading programs, 
which will be used to allocate NOX allowances to sources in 
West Virginia, instead of the federal allocation methodology otherwise 
provided in the FIP. A detailed discussion of the CAIR requirements, 
West Virginia's CAIR submittals, and EPA's rationale for approval of 
the West Virginia's abbreviated SIP may be found in the DFRN and will 
not be repeated here. In the DFRN, EPA stated that if adverse comment 
was received, it would publish a timely withdrawal in the Federal 
Register informing the public that the rule would not take effect. On 
October 12, 2007, EPA received an adverse comment from the State of 
Connecticut Department of Environmental Protection. EPA therefore 
withdrew the DFRN on November 7, 2007 (72 FR 62788).

II. Public Comments and EPA Responses

    Comment: On October 12, 2007, the Connecticut Department of 
Environmental Protection (CTDEP) submitted adverse comments on EPA's 
DFR notice approving West Virginia's abbreviated CAIR SIP. CTDEP 
encourages EPA to approve state programs adopted to meet the emission 
reduction requirements of CAIR. However, it argues that before 
approving state CAIR plans, EPA should evaluate individually and in the 
aggregate each state's clean air programs. They argue such evaluation 
is necessary to ensure that each state's emissions do not significantly 
contribute to downwind nonattainment. CTDEP asserts its belief that the 
CAIR program does not ensure that the CAA section 110(a)(2)(D)(i) 
requirements to prohibit transported emissions that significantly 
contribute to nonattainment in Connecticut and other states will be 
met. CTDEP expresses concern that EPA is determining through this and 
other similar rulemakings that CAIR programs are sufficient to meet 
States' section 110(a)(2)(D)(i) obligations. CTDEP asserts, based on 
EPA and State modeling for CAIR, that the levels of transported 
pollution remaining after CAIR implementation are large enough that, 
even with local controls, it may be difficult for Connecticut to attain 
the 8-hour ozone NAAQS by 2010. Finally, CTDEP questions EPA's 
determination that highly cost effective controls are adequate to 
address States' section 110(a)(2)(D)(i) obligations as compared to 
``reasonable cost'' controls that could be achieved to effect more 
stringent NOX reductions.

[[Page 71577]]

    Response: EPA does not agree that it is appropriate or necessary 
for EPA to conduct additional analysis before approving the West 
Virginia abbreviated CAIR SIP for NOX allowances and 
NOX allowance methodology. West Virginia has chosen an 
abbreviated SIP for NOX allowances and NOX 
allocation methodology, one of four SIP elements for which states may 
request an abbreviated SIP. With an abbreviated SIP, the CAIR FIP 
remains in place for West Virginia. EPA's proposed approval of West 
Virginia's abbreviated SIP would therefore only have the effect of 
replacing, as provided for in the CAIR FIP, the corresponding FIP 
provisions with the State's preferred allocations and methodology. EPA 
has evaluated this abbreviated SIP revision and determined that it 
complies with the requirements of the CAIR FIP provisions regarding 
abbreviated SIPs. CTDEP does not challenge this determination. Thus, 
CTDEP's comments do not specifically pertain to any aspect of EPA's 
proposed action to approve the West Virginia CAIR SIP revision. Rather, 
the comments appear to be directed broadly at EPA's decisions with 
regard to states' section 110(a)(2)(D)(i) obligations. These decisions 
were made by EPA in the context of the CAIR rulemaking, which was 
promulgated on May 12, 2005 (70 FR 25162), not in the proposed action 
to approve West Virginia's abbreviated CAIR SIP revision. Therefore, 
CTDEP's comments are not relevant to the proposed action. CTDEP had 
ample opportunity to submit comments both during the comment period for 
the proposed CAIR rulemaking of January 30, 2004 (69 FR 4566) and 
during the comment period for the proposed CAIR FIP of August 24, 2005 
(70 FR 49708). EPA's proposal to approve West Virginia's abbreviated 
CAIR SIP did not reopen either the CAIR or CAIR FIP rulemakings. 
Consequently, CTDEP's comments are not relevant to this rulemaking, or 
timely with respect to the CAIR and CAIR FIP rulemakings. Thus, EPA 
does not believe it is necessary to conduct additional analysis on 
whether West Virginia or any other state satisfies the requirements of 
110(a)(2)(D)(i) before approving the West Virginia's abbreviated CAIR 
SIP submission.

III. Final Action

    EPA is approving West Virginia's abbreviated CAIR SIP revision 
submitted on June 8, 2007, as discussed above. West Virginia is subject 
to the CAIR FIPs, which require participation in the EPA-administered 
SO2, NOX annual, and NOX ozone season 
cap-and-trade programs. Under this abbreviated SIP revision and, 
consistent with the flexibility given to States in the FIPs, West 
Virginia has adopted provisions for allocating allowances under the 
CAIR FIP NOX annual and ozone season trading programs. As 
provided for in the CAIR FIPs, these provisions in the abbreviated SIP 
revision will replace or supplement the corresponding provisions of the 
CAIR FIPs in West Virginia. The abbreviated SIP revision meets the 
applicable requirements in 40 CFR 51.123(p) and (ee), with regard to 
NOX annual and NOX ozone season emissions. In 
this final action, EPA is not making any changes to the CAIR FIP, but 
is amending the appropriate appendices in the CAIR FIP trading rules 
simply to note approval of West Virginia's abbreviated CAIR SIP.
    EPA is today taking action only on this request for an abbreviated 
SIP revision and not the full CAIR SIP revision originally submitted, 
which will be the subject of a separate rulemaking action. In the June 
8, 2007 letter, West Virginia states that it will revise and promulgate 
its CAIR rules 45CSR39, 45CSR40, and 45CSR41 to incorporate the 
revisions to part 96 and indicates that it plans to submit an amended 
CAIR SIP revision to EPA in 2008.

IV. Effective Date

    EPA finds that there is good cause for this approval to become 
effective on the date of publication because a delayed effective date 
is unnecessary due to the nature of the approval, which allows the 
Commonwealth to make allocations under its CAIR rules. The expedited 
effective date for this action is authorized under both 5 U.S.C. 
553(d)(1), which provides that rule actions may become effective less 
than 30 days after publication if the rule ``grants or recognizes an 
exemption or relieves a restriction'' and section 5 U.S.C. 553(d)(3), 
which allows an effective date less than 30 days after publication ``as 
otherwise provided by the agency for good cause found and published 
with the rule.''
    CAIR SIP approvals relieve states and CAIR sources within states 
from being subject to allowance allocation provisions in the CAIR FIPs 
that otherwise would apply to it, allowing States to make their own 
allowance allocations based on their SIP-approved State rule. The 
relief from these obligations is sufficient reason to allow an 
expedited effective date of this rule under 5 U.S.C. 553(d)(1).

V. 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

[[Page 71578]]

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 February 19, 2008. 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 approve West Virginia's abbreviated CAIR 
SIP revision may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

40 CFR Part 97

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Nitrogen oxides, 
Ozone, Reporting and recordkeeping requirements.

    Dated: December 6, 2007.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR parts 52 and 97 are 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. Section 52.2520 is amended as follows:
0
a. The table in paragraph (c) by adding entries for 45 CSR 39 and 45 
CSR 40 at the end of the table.
0
b. The table in paragraph (e) by adding the entry for Article 3, 
Chapter 64 of the Code of West Virginia at the end of the table.


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved Regulations in the West Virginia Sip
----------------------------------------------------------------------------------------------------------------
                                                             State                        Additional explanation/
 State citation [Chapter 16-20        Title/subject        effective   EPA approval date    citation at 40 CFR
           or 45 CSR]                                         date                            Sec.   52.2565
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
     [45 CSR] Series 39 Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine
                                     Particulate Matter and Nitrogen Ozides
----------------------------------------------------------------------------------------------------------------
Section 45-39-40...............  CAIR NOX Annual Trading       5/1/06  12/18/07 [Insert   Only Phase I (2009-
                                  Budget.                               page number        2014).
                                                                        where the
                                                                        document begins].
Section 45-39-41...............  Timing Requirements for       5/1/06  12/18/07 [Insert   Only Phase I (2009-
                                  CAIR NOX Annual                       page number        2014).
                                  Allowance Allocations.                where the
                                                                        document begins].
Section 45-39-42...............  CAIR NOX Annual               5/1/06  12/18/07 [Insert   Only for Phase I (2009-
                                  Allowance Allocations.                page number        2014).
                                                                        where the
                                                                        document begins].
----------------------------------------------------------------------------------------------------------------
  [45 CSR] Series 40 Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport of Ozone
                                               and Nitrogen Oxides
----------------------------------------------------------------------------------------------------------------
Section 45-40-40...............  CAIR NOX Ozone Season         5/1/06  12/18/07 [Insert   1. Except for
                                  Trading Budget.                       page number        subsection 40.3, and
                                                                        where the          non-EGUs in
                                                                        document begins].  subsection 40.1 table
                                                                                          2. Only Phase I (2009-
                                                                                           2014).
Section 45-40-41...............  Timing Requirements for       5/1/06  12/18/07 [Insert   Only Phase I (2009-
                                  CAIR NOX Ozone Season                 page number        2014).
                                  Allowance Allocations.                where the
                                                                        document begins].

[[Page 71579]]


Section 45-40-42...............  CAIR NOX Ozone Season         5/1/06  12/18/07 [Insert   1. Except for
                                  Allowance Allocations.                page number        subsections 42.2.d,
                                                                        where the          42.2.e, 42.3.a.2, and
                                                                        document begins].  42.4.b.
                                                                                          2. Only Phase I (2009-
                                                                                           2014).
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* * * * *
    (e) * * *

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                                                          State
   Name of non-regulatory SIP          Applicable       submittal    EPA approval date    Additional explanation
            revision                geographic  area       date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Article 3, Chapter 64 of the      Statewide..........       5/1/06  12/18/07 [Insert     Effective date of March
 Code of West Virginia, 1931.                                        page number where    11, 2006.
                                                                     the document
                                                                     begins].
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PART 97--[AMENDED]

0
3. The authority citation for 40 CFR part 97 continues to read as 
follows:

     Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et 
seq.

0
4. Appendix A to Subpart EE is amended by adding the entry for ``West 
Virginia'' in alphabetical order under paragraph 1. to read as follows:

Appendix A to Subpart EE of Part 97--States With Approved State 
Implementation Plan Revisions Concerning Allocations

    1. * * *
    West Virginia (for control periods 2009-2014)
* * * * *


0
5. Appendix A to Subpart EEEE is amended by adding the entry for West 
Virginia in alphabetical order to read as follows:

Appendix A to Subpart EEEE of Part 97--States With Approved State 
Implementation Plan Revisions Concerning Allocations

* * * * *
    West Virginia (for control periods 2009-2014)
* * * * *
 [FR Doc. E7-24367 Filed 12-17-07; 8:45 am]

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