
[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Notices]
[Pages 47838-47839]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19685]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9715-5]


Delegation of Authority to the State of West Virginia To 
Implement and Enforce Additional or Revised National Emission Standards 
for Hazardous Air Pollutants and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of delegation of authority.

-----------------------------------------------------------------------

SUMMARY: On June 22, 2012, EPA sent the State of West Virginia (West 
Virginia) a letter acknowledging that West Virginia's delegation of 
authority to implement and enforce National Emissions Standards for 
Hazardous Air Pollutants (NESHAP) and New Source Performance Standards 
(NSPS) had been updated, as provided for under previously approved 
delegation mechanisms. To inform regulated facilities and the public of 
West Virginia's updated delegation of authority to implement and 
enforce NESHAP and NSPS, EPA is making available a copy of EPA's letter 
to West Virginia through this notice.

DATES: On June 22, 2012, EPA sent West Virginia a letter acknowledging 
that West Virginia's delegation of authority to implement and enforce 
NESHAP and NSPS had been updated.

ADDRESSES: Copies of documents pertaining to this action are available 
for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of West 
Virginia's submittal are also available at the West Virginia Department 
of Environmental Protection, Division of Air Quality, 601 57th Street 
SE., Charleston, West Virginia 25304. Copies of West Virginia's notice 
to EPA that West Virginia has updated its incorporation by reference of 
Federal NESHAP and NSPS, and of EPA's response, may also be found 
posted on EPA Region III's Web site at: http://www.epa.gov/reg3artd/airregulations/delegate/wvdelegation.htm.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, (215) 814-2061, or by 
email at chalmers.ray@epa.gov.

SUPPLEMENTARY INFORMATION: On June 6, 2012, West Virginia notified EPA 
that West Virginia has updated its incorporation by reference of 
Federal NESHAP and NSPS to include many such standards, to the extent 
referenced in the Code of Federal Regulations (CFR), Parts 60, 61, and 
63, effective June 1, 2011. On June 22, 2012, EPA sent West Virginia a 
letter acknowledging that West Virginia now has the authority to 
implement and enforce the NESHAP and NSPS as specified by West Virginia 
in its notice to EPA, as provided for under previously approved 
automatic delegation mechanisms. All notifications, applications, 
reports and other correspondence required pursuant to the delegated 
NESHAP and NSPS must be submitted to both the US EPA Region III and to 
the West Virginia Department of Environmental Quality. A copy of EPA's 
letter to West Virginia follows:

``Mr. John Benedict, Director, Division of Air Quality, West 
Virginia Department of Environmental Protection, 601 57th Street, 
Charleston, West Virginia 25304

    Dear Mr. Benedict: The United States Environmental Protection 
Agency (EPA) has previously delegated to the State of West Virginia 
(West Virginia) the authority to implement and enforce various 
federal National Emissions Standards for Hazardous Air Pollutants 
(NESHAP) and New Source Performance Standards (NSPS), which are 
found at 40 C.F.R. Parts 60, 61 and 63.\1\ In

[[Page 47839]]

those actions EPA also delegated to West Virginia the authority to 
implement and enforce any future EPA NESHAP or NSPS on the condition 
that West Virginia legally adopt the future standards, make only 
allowed wording changes, and provide specified notice to EPA.
---------------------------------------------------------------------------

    \1\ EPA has posted copies of these actions at: http://www.epa.gov/reg3artd/airregulations/delegate/wvdelegation.htm
---------------------------------------------------------------------------

    In a letter dated June 6, 2012, West Virginia informed EPA that 
West Virginia had updated its incorporation by reference of federal 
NESHAP and NSPS to include many such standards, to the extent 
referenced in 40 C.F.R. Parts 60, 61, and 63, effective June 1, 
2011. West Virginia noted that it understood that it was 
automatically delegated the authority to implement these standards. 
West Virginia committed to enforcing the standards in conformance 
with the terms of EPA's previous delegations of authority. West 
Virginia made only allowed wording changes.
    West Virginia provided copies of the revised West Virginia 
Legislative Rules which specify the NESHAP and NSPS which West 
Virginia has adopted by reference. These revised Legislative Rules 
are entitled 45 CSR 34--``Emission Standards for Hazardous Air 
Pollutants,'' and 45 CSR 16--``Standards of Performance for New 
Stationary Sources.'' These revised Rules have an effective date of 
June 1, 2012.
    Accordingly, EPA acknowledges that West Virginia now has the 
authority, as provided for under the terms of EPA's previous 
delegation actions, to implement and enforce the NESHAP and NSPS 
standards which West Virginia has adopted by reference in West 
Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, both 
effective on June 1, 2012.
    Please note that on December 19, 2008 in Sierra Club vs. EPA,\2\ 
the United States Court of Appeals for the District of Columbia 
Circuit vacated certain provisions of the General Provisions of 40 
C.F.R. Part 63 relating to exemptions for startup, shutdown, and 
malfunction (SSM). On October 16, 2009, the Court issued the mandate 
vacating these SSM exemption provisions, which are found at 40 
C.F.R. Part 63, Sec. Sec.  63.6(f)(1) and (h)(1).
---------------------------------------------------------------------------

    \2\ Sierra Club v. EPA, 551 F.3rd 1019 (D.C. Cir. 2008)
---------------------------------------------------------------------------

    Accordingly, EPA no longer allows sources the SSM exemption as 
provided for in the vacated provisions at 40 C.F.R. Part 63, 
Sec. Sec.  63.6(f)(1) and (h)(1), even though EPA has not yet 
formally removed the SSM exemption provisions from the General 
Provisions of 40 C.F.R. Part 63. Because West Virginia incorporated 
40 C.F.R. Part 63 by reference, West Virginia should also no longer 
allow sources to use the former SSM exemption from the General 
Provisions of 40 C.F.R. Part 63 due to the Court's ruling in Sierra 
Club vs. EPA.
    EPA appreciates West Virginia's continuing NESHAP and NSPS 
enforcement efforts, and also West Virginia's decision to take 
automatic delegation of additional and more recent NESHAP and NSPS 
by adopting them by reference.
    If you have any questions, please contact me or Ms. Kathleen 
Cox, Associate Director, Office of Permits and Air Toxics, at 215-
814-2173.

Sincerely,

Diana Esher, Director

Air Protection Division''

    This notice acknowledges the update of West Virginia's delegation 
of authority to implement and enforce NESHAP and NSPS.

    Dated: August 1, 2012.
Diana Esher,
Director, Air Protection Division, Region III.
[FR Doc. 2012-19685 Filed 8-9-12; 8:45 am]
BILLING CODE 6560-50-P


