	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0706; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans;

	West Virginia; Removal of NOx SIP Call Rules

AGENCY:     Environmental Protection Agency (EPA).

ACTION:     Direct final rule.

SUMMARY:  EPA is taking direct final action to approve a revision to the
West Virginia State Implementation Plan (SIP).  The revision removes
West Virginia’s nitrogen oxides (NOx) SIP Call rules.  EPA is
approving this revision to remove West Virginia’s NOx SIP Call rules
in accordance with the requirements of the Clean Air Act (CAA).

             

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-2009-0706 by one of the following methods:

 www.regulations.gov.  Follow the on-line instructions for submitting
comments.

B.    E-mail:  fernandez.cristina@epa.gov

C.    Mail:   EPA-R03-OAR-2009-0706, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, 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-2009-0706.  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,
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

Throughout this document, whenever “we,” “us,” or “our” is
used, we mean EPA. 

On July 20, 2009, the State of West Virginia submitted a formal revision
to its SIP.  The SIP revision removes West Virginia’s NOx SIP Call
rules.  West Virginia’s NOx SIP Call rules, approved into the West
Virginia SIP on May 10, 2002 (67 FR 31733) and September 28, 2006 (71 FR
56881), established West Virginia’s NOx Budget Trading Program and set
forth requirements for its non-trading sources, respectively.  The
former enabled West Virginia to participate in the EPA-administered
regional NOx budget trading program under the NOx SIP Call.  However,
EPA discontinued the NOx SIP Call trading program after the 2008 ozone
season, and starting in 2009, began administration of the trading
programs under the Clean Air Interstate Rule (CAIR).  CAIR established
three separate emissions trading programs.  One of these, the CAIR ozone
season NOx trading program, applies to the electric generating units
(EGUs) that are subject to the NOx SIP Call but does not apply to the
non-EGUs that were also trading sources under the NOx SIP Call.  To help
States address these sources, CAIR provided States with the flexibility
to include the non-EGUs as part of their CAIR ozone season NOx trading
program.  West Virginia chose to bring these non-EGUs into its CAIR
ozone season NOx trading program by including them in regulation 45CSR40
- Control of Ozone Season Nitrogen Oxide Emissions to Mitigate
Interstate Transport of Ozone and Nitrogen Oxides CAIR.  In addition,
West Virginia chose to recodify the provisions for its non-trading
non-EGUs (internal combustion engines and cement kilns) that were
included in 45CSR1 into 45CSR40.  On August 4, 2009 (74 FR 38536), EPA
approved West Virginia’s CAIR trading programs into the West Virginia
SIP.  West Virginia’s NOx SIP Call requirements have therefore been
subsumed by the State’s CAIR ozone season NOx trading program.

II.	Summary of SIP Revision

West Virginia met its NOx SIP Call requirements through two regulations:
45CSR1 – Control and Reduction of Nitrogen Oxides from Non-Electric
Generating Units As a Means to Mitigate Transport of Ozone Precursors;
and 45CSR26 – NOx Budget Trading Program as a Means of Control and
Reduction of Nitrogen Oxides from Electric Generating Units.  This SIP
revision removes these two regulations.  West Virginia is meeting its
NOx SIP Call emission reduction requirements by its approved CAIR ozone
season NOx trading program, codified in 45CSR40.

III.	Final Action

EPA is approving the SIP revision submitted by West Virginia to remove
its NOx SIP Call rules 45CSR1 and 45CSR26.  West Virginia continues to
meet its NOx SIP Call requirements through its SIP-approved CAIR ozone
season NOx trading program.  

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 the Clean Air Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations.  42 U.S.C. 7410(k); 40 CFR 52.02(a).  Thus, in
reviewing SIP submissions, EPA’s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act.  Accordingly,
this action merely approves state law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
state law.  For that reason, this action:

is not a "significant regulatory action” subject to review by the
Office of Management and Budget under Executive Order 12866 (58 FR
51735, October 4, 1993);  

does not impose an information collection burden under the provisions of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);  

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);

does not have Federalism implications as specified in Executive Order
13132 (64 FR 43255, August 10, 1999);

is not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997); 

is not a significant regulatory action subject to Executive Order 13211
(66 FR 28355, May 22, 2001); 

is not subject to requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)
because application of those requirements would be inconsistent with the
Clean Air Act; and 

does not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.

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 action 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.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action 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 action 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.  Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. 

This action to approve the West Virginia SIP revision that removes the
State’s NOx SIP Call rules 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter.

                                                                        
           W. C. Early, Acting

                                                                        
            Regional Administrator

_January 22, 2010____                   		         
__________________________

Dated:                                				Shawn M. Garvin,

                                      				Regional Administrator,

                                      				Region III.



40 CFR Part 52 is amended as follows: 

PART 52 - [AMENDED] 

1.  The authority citation for 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 removing the
entries for 45CSR Series 1 and 45CSR Series 26 in their entirety.

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