	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Parts 52 and 97

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

Approval and Promulgation of Air Quality Implementation Plans; West
Virginia;

Clean Air Interstate Rule

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

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 [Insert date of
publication].

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 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:  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: §§45-39-40, 

45-39-41, and 45-39-42 ; and §§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.

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 Virgnia 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 (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 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 [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 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.

__December 06, 2007_______		            _____________/s/________________

Dated:                                				Donald S. Welsh,

                                      				Regional Administrator,

                                      				Region III.

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

	

( 52.2520  	Identification of plan.

*	*	*	*	*	

(c) * * * 

	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 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 Budget	

5/1/06	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

Only Phase I (2009 – 2014)



Section 45-39-41

	

Timing Requirements for CAIR NOx Annual Allowance Allocations	

5/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]	

Only Phase I (2009 – 2014)



Section 45-39-42	

CAIR NOx Annual Allowance Allocations	

5/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]	

Only for Phase I (2009 – 2014)

[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 Trading Budget	

5/1/06	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

1.  Except for subsection 40.3, and non-EGUs in subsection 40.1 table

2.  Only Phase I (2009 – 2014)



Section 45-40-41

	

Timing Requirements for CAIR NOx Ozone Season Allowance Allocations	

5/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]	Only Phase I (2009 – 2014)



Section 45-40-42	

CAIR NOx Ozone Season Allowance Allocations	

5/1/06	[Insert Federal Register publication date] [Insert page number
where the document begins]	1.  Except for subsections 42.2.d, 42.2.e,
42.3.a.2, and 42.4.b.

2.  Only Phase I (2009 – 2014)



*     *     *     *     *  

	

	

(e)* * *

Name of non-regulatory SIP revision 	

Applicable geographic area	

State submittal date 	

EPA approval date	

Additional explanation



*     *     *     *     *     *     *



Article 3, Chapter 64 of the Code of West Virginia, 1931	

Statewide	5/1/06	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Effective date of March 11, 2006

   

PART 97 - [AMENDED] 

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.

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)

	    *  *  * 

5.  Appendix A to Subpart EEEE is amended by adding the entry for West
Virginia in alphabetical order under paragraph 1 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)

*  *  *  *  *

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