
[Federal Register Volume 76, Number 103 (Friday, May 27, 2011)]
[Rules and Regulations]
[Pages 30832-30835]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13067]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0876; FRL-9311-9]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Permits for Construction and Major Modification of Major 
Stationary Sources of Air Pollution for the Prevention of Significant 
Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of West Virginia. The intended effect of this 
action is to approve the inclusion of nitrogen oxides (NOx) 
as a precursor to ozone in the State of West Virginia for permits for 
construction and major modification of major stationary sources of air 
pollution for the prevention of significant deterioration (PSD) areas 
in West Virginia. This action will also add the Federally equivalent 
provisions to the rules for the PSD program as they pertain to 
``reasonable possibility'' and delete certain references to pollution 
control projects (PCPs) and clean units (CUs) to make the West Virginia 
PSD program consistent with the Federal PSD program. This action is 
being taken under the Clean Air Act (CAA).

DATES: Effective Date. This final rule is effective on June 27, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2009-0876. All documents in the docket are listed in 
the www.regulations.gov website.
    Although listed in the electronic docket, some information is not 
publicly available, i.e., confidential business information (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 
through www.regulations.gov or in hard copy for public inspection 
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: Sharon McCauley, (215) 814-3376, or by 
e-mail at mccauley.sharon@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On December 17, 2010 (75 FR 78949), EPA published a 
notice of proposed rulemaking (NPR) for the State of West Virginia. The 
NPR proposed approval of the inclusion of NOX as a precursor 
to ozone for permits for construction and major modification of major 
stationary sources of air pollution for PSD. This action will replace 
the current SIP-approved version of 45CSR14, entitled, Permits for 
Construction and Major Modification of Major Stationary Sources of Air 
Pollution for the Prevention of Significant Deterioration. The formal 
SIP revision was submitted by West Virginia on July 20, 2009.

II. Summary of SIP Revision

    This SIP revision consists of replacing the current version of 
45CSR14 approved by EPA on December 4, 2006 (71 FR 64470) with the 
regulations which were made effective as a legislative rule in West 
Virginia on June 1, 2009 and submitted to EPA on July 20, 2009. This 
revision governs the permitting for the construction of new major 
stationary sources and the significant modification of existing major 
stationary sources of air pollutants in areas designated attainment or 
non-classifiable for the National Ambient Air Quality Standards 
(NAAQS).
    This approval of West Virginia's SIP submission addresses changes 
needed to ensure consistency with the CAA's part C PSD permit program. 
This SIP submission also corrects deficiencies identified by EPA in the 
March 27, 2008 Federal Register action entitled, ``Completeness 
Findings for Section 110(a) State implementation Plans for the 8-hour 
Ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)'' (73 
FR 16205). EPA's approval of this SIP submission addresses West 
Virginia's compliance with the portion of CAA Section 110(a)(2)(C) & 
(J) relating to the Part C permit program for the 1997 Ozone NAAQS, 
because this action would approve regulating NOX as a 
precursor to ozone in West Virginia's SIP in accordance with the 
Federal Register action dated November 29, 2005 (70 FR 71612) that 
finalized NOX as a precursor for ozone regulations set forth 
at 40 CFR 51.166 and in 40 CFR 52.21.
    Additionally, in the course of taking action upon the previously 
approved NSR Reform SIP revision dated December 4, 2006 (71 FR 64470), 
West Virginia had requested that EPA not act upon certain provisions of 
45CSR14.19.8 pertaining to the recordkeeping and reporting requirements 
for sources that elect to use the actual-to-projected actual emission 
test and where there is a ``reasonable possibility'' that a project may 
result in a significant net emissions increase. Based upon revisions to 
45CSR14.19.8, EPA is now approving 45CSR14.19.8 in its entirety into 
the West Virginia SIP with this action as regulatory corrections have 
been made to the State's regulations.
    The references to pollution control projects (PCPs) and clean units 
(CUs) were deleted in the West Virginia

[[Page 30833]]

regulations in accordance with the Federal rulemaking action dated June 
13, 2007 (72 FR 32526). These State references to PCPs and CUs are not 
a part of the currently approved SIP and are, therefore, just being 
corrected in West Virginia's regulations; as a result of correctly 
deleting their references, West Virginia's regulations will be 
consistent with the Federally enforceable provisions.
    EPA has determined that the current amendments to West Virginia's 
PSD permit program at 45CSR14, as submitted on July 20, 2009, meet the 
minimum requirements of 40 CFR 51.166 and the Clean Air Act. This 
action will approve these revisions to the West Virginia SIP.

III. Final Action

    EPA is approving the West Virginia SIP revision submitted on July 
20, 2009 which amends 45CSR14 as a revision to the West Virginia SIP. 
EPA is also making a determination that West Virginia's SIP meets the 
requirements of CAA Sections 110(a)(2)(C) and (J) relating to the part 
C permit program for the 1997 Ozone NAAQS. EPA had solicited public 
comments on these issues discussed in this document in the prior 
proposed Federal Register action dated December 17, 2010 (75 FR 78949). 
No adverse comments were received.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, 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 CAA. 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 (Pub. L. 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 CAA; 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 July 26, 2011. 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. This action to include NOX as a 
precursor to ozone and the provisions for ``reasonable possibility'' in 
West Virginia for permits for construction and major modification of 
major stationary sources of air pollution for the prevention of 
significant deterioration 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 9, 2011.
W.C. Early,
Acting Regional Administrator, EPA Region III.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 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 entries for [45 CSR] Series 14 to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

[[Page 30834]]



                                EPA-Approved Regulations in the West Virginia SIP
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                                                            State                                Additional
State citation [Chapter 16-20 or      Title/subject       effective     EPA approval date   explanation/citation
             45 CSR]                                         date                             at 40 CFR 52.2565
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                                                  * * * * * * *
 [45 CSR] Series 14 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution
                                 for the Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------
Section 45-14-1.................  General..............      6/01/09  5/27/11 [Insert page  ....................
                                                                       number where the
                                                                       document begins].
Section 45-14-2.................  Definitions..........      6/01/09  5/27/11 [Insert page  This action
                                                                       number where the      incorporates all of
                                                                       document begins].     this Section into
                                                                                             SIP.
Section 45-14-3.................  Applicability........      6/01/09  5/27/11 [Insert page  This action
                                                                       number where the      incorporates all of
                                                                       document begins].     this Section into
                                                                                             SIP.
Section 45-14-4.................  Ambient Air Quality        6/01/09  5/27/11 [Insert page  ....................
                                   Increments and                      number where the
                                   Ceilings.                           document begins].
Section 45-14-5.................  Area Classification..      6/01/09  5/27/11 [Insert page  ....................
                                                                       number where the
                                                                       document begins].
Section 45-14-6.................  Prohibition of             6/01/09  5/27/11 [Insert page  ....................
                                   Dispersion                          number where the
                                   Enhancement                         document begins].
                                   Techniques.
Section 45-14-7.................  Registration, Report       6/01/09  5/27/11 [Insert page  ....................
                                   and Permit                          number where the
                                   Requirements for                    document begins].
                                   Major Stationary
                                   Sources and Major
                                   Modifications.
Section 45-14-8.................  Requirements Relating      6/01/09  5/27/11 [Insert page  ....................
                                   to Control                          number where the
                                   Technology.                         document begins].
Section 45-14-9.................  Requirements Relating      6/01/09  5/27/11 [Insert page  ....................
                                   to the Source's                     number where the
                                   Impact on Air                       document begins].
                                   Quality.
Section 45-14-10................  Modeling Requirements      6/01/09  5/27/11 [Insert page  ....................
                                                                       number where the
                                                                       document begins].
Section 45-14-11................  Air Quality                6/01/09  5/27/11 [Insert page  ....................
                                   Monitoring                          number where the
                                   Requirements.                       document begins].
Section 45-14-12................  Additional Impacts         6/01/09  5/27/11 [Insert page  ....................
                                   Analysis                            number where the
                                   Requirements.                       document begins].
Section 45-14-13................  Additional                 6/01/09  5/27/11 [Insert page  ....................
                                   Requirements and                    number where the
                                   Variances for Source                document begins].
                                   Impacting Federal
                                   Class 1 Areas.
Section 45-14-14................  Procedures for             6/01/08  5/27/11 [Insert page  ....................
                                   Sources Employing                   number where the
                                   Innovative Control                  document begins].
                                   Technology.
Section 45-14-15................  Exclusions From            6/01/09  5/27/11 [Insert page  ....................
                                   Increment                           number where the
                                   Consumption.                        document begins].
Section 45-14-16................  Specific Exemptions..      6/01/09  5/27/11 [Insert page  ....................
                                                                       number where the
                                                                       document begins].
Section 45-14-17................  Public Review              6/01/09  5/27/11 [Insert page  ....................
                                   Procedures.                         number where the
                                                                       document begins].
Section 45-14-18................  Public Meetings......      6/01/09  5/27/11 [Insert page  ....................
                                                                       number where the
                                                                       document begins].
Section 45-14-19................  Permit Transfer,           6/01/09  5/27/11 [Insert page  This action
                                   Cancellation and                    number where the      incorporates all of
                                   Responsibility.                     document begins].     this Section into
                                                                                             SIP, amended text
                                                                                             added for
                                                                                             clarification.
Section 45-14-20................  Disposition of             6/01/09  5/27/11 [Insert page  ....................
                                   Permits.                            number where the
                                                                       document begins].
Section 45-14-21................  Conflict with Other        6/01/09  5/27/11 [Insert page  ....................
                                   Permitting Rules.                   number where the
                                                                       document begins].
Section 45-14-25................  Actual PALs..........      6/01/09  5/27/11 [Insert page  ....................
                                                                       number where the
                                                                       document begins].
Section 45-14-26................  Inconsistency Between      6/01/09  5/27/11 [Insert page  ....................
                                   Rules.                              number where the
                                                                       document begins].
 
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[FR Doc. 2011-13067 Filed 5-26-11; 8:45 am]
BILLING CODE 6560-50-P


