[Federal Register Volume 63, Number 22 (Tuesday, February 3, 1998)]
[Proposed Rules]
[Pages 5484-5489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV026-6004; FRL-5957-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Approval Under Section 112(l) of the Clean Air Act; West Virginia; 
Revisions to Minor New Source Review and Addition of Minor Operating 
Permit Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve in part and disapprove in part a 
State Implementation Plan (SIP) revision submitted by the State of West 
Virginia. This SIP revision changes portions of West Virginia's minor 
new source review permit program and establishes new provisions for 
permitting existing stationary sources. This action proposes to 
disapprove a new exemption from minor new source review for sources 
which have been issued permits pursuant to the State's operating 
permits program developed pursuant to Title V of the Clean Air Act 
(``the Act''). This action also proposes to disapprove the provisions 
governing the issuance of temporary construction and modification 
permits. This action proposes to approve all other provisions of West 
Virginia's minor new source review and existing stationary source 
operating permit program. The intended effect of this action is to 
propose approval of those State provisions which meet the requirements 
of the Clean Air Act, and disapprove those State provisions which do 
not. This action is being taken under section 110 of the Clean Air Act. 
EPA is also proposing approval of West Virginia's minor new source 
review and existing stationary source operating permit program pursuant 
to Section 110 of the Act for the purpose of creating federally 
enforceable permit conditions for sources of criteria air pollutants. 
EPA is also proposing approval of West Virginia's minor new source 
review and existing stationary source operating permit program under 
section 112(l) of the Clean Air Act in order to extend the Federal 
enforceability of State permits to include hazardous air pollutants 
(HAPs).

DATES: Comments must be received on or before March 5, 1998.

ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permit 
Programs Section, Mailcode 3AP11, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107 and the West 
Virginia Department of Environmental Protection, Office of Air Quality, 
1558 Washington Street, East, Charleston, West Virginia, 25311.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson,(215) 566-2066, 
or by e-mail at Abramson.J[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. Minor New Source Review

    Section 110(a)(2)(C) of the CAA requires every SIP to ``include a 
program for the * * * regulation of the modification and construction 
of any stationary source within the areas covered by the plan as 
necessary to assure that national ambient air quality standards are 
achieved.'' EPA's regulations now codified at Sec. Sec. 51.160 through 
51.164 have since the early 1970s required a new source review (NSR) 
program, and one is included in every state implementation plan (SIP). 
This requirement predates and is separate from the requirement also set 
forth in section 110(a)(2)(C) that States have ``major'' NSR permitting 
programs under part C for the prevention of significant deterioration 
of air quality (PSD) and part D for nonattainment area permitting 
(nonattainment NSR) of title I.

B. Federally Enforceable State Operating Permit Programs

    Many stationary source requirements of the CAA apply only to 
``major sources''. Major sources are those sources whose emissions of 
air pollutants exceed threshold emissions levels specified in the Act. 
To determine whether a source is major, the Act focuses not only on a 
source's actual emissions, but also on its potential emissions. Thus, a 
source that has maintained actual emissions at levels below the major 
source threshold could still be subject to major source requirements if 
it has the potential to emit major amounts of air pollutants. However, 
in situations where unrestricted operation of a source would result in 
a potential to emit above major-source levels, such sources may legally 
avoid program requirements by taking federally-enforceable permit 
conditions which limit emissions to levels below the applicable major 
source threshold, becoming what is termed a ``synthetic minor'' source. 
1Federally-enforceable permit conditions, if violated, are 
subject to enforcement by the Environmental Protection Agency (EPA) or 
by citizens in addition to the state or local agency. On June 28, 1989, 
EPA published guidance on the basic requirements for EPA approval of 
(non-title V) federally enforceable state operating permit programs 
(FESOPPs). See 54 FR 27274. Permits issued pursuant to such programs 
may be used to establish federally enforceable limits on a source's 
potential emissions to create ``synthetic minor'' sources.
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    \1\  Several other mechanisms for major sources to become 
``synthetic minors'' and legally avoid major source program 
requirements exist. For more information, refer to the memorandums 
entitled ``Extension of January 25, 1995 Potential to Emit 
Transition Policy'' (August 28, 1996), ``Release of Interim Policy 
on Federal Enforceability of Limitations on Potential to Emit'' 
(January 22, 1996), ``Options for Limiting the Potential to Emit 
(PTE) of a Stationary Source under Section 112 and Title V of the 
Clean Air Act (Act)'' (January 25, 1995), and ``Approaches to 
creating Federally-Enforceable Emissions Limits'' (November 3, 
1993).
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C. Federally Enforceable Permit Conditions for Hazardous Air Pollutants

    Section 112(l) of the Act provides EPA with the authority to 
approve state programs which regulate sources of HAPs, analogous to the 
section 110 authority provided to EPA for sources of criteria air 
pollutants. EPA believes it

[[Page 5485]]

has the authority under section 112(l) to approve state programs for 
the purpose of making permit conditions involving HAPs federally 
enforceable. EPA believes it is consistent with the intent of section 
112 of the CAA for states to provide mechanisms through which sources 
may avoid classification as major sources by obtaining federally 
enforceable limits on potential to emit. Other available mechanisms for 
sources of hazardous air pollutants to avoid classification as major 
sources are available (See footnote 1).

II. Summary and Analysis

    On August 26, 1994, the West Virginia Department of Environmental 
Protection (WVDEP) submitted for EPA approval a revision to the West 
Virginia State Implementation Plan (SIP) regarding the issuance of 
minor new source review and federally enforceable state operating 
permits. This SIP revision, entitled 45CSR13- ''Permits for 
Construction, Modification, Relocation and Operation of Stationary 
Sources of Air Pollutants, Notification Requirements, Temporary 
Permits, General Permits, and Procedures for Evaluation'', amends and 
replaces 45CSR13 ``Permits for Construction, Modification, or 
Relocation of Stationary Sources of Air Pollutants, and Procedures for 
Registration and Evaluation'', effective June 1, 1974, which was 
approved into the SIP November 10, 1975. On September 5, 1996, the West 
Virginia Department of Environmental Protection (WVDEP) submitted a 
letter clarifying that West Virginia also requests EPA approval under 
CAA section 112(l) of the 45CSR13 program submitted on August 26, 1994.
    In order to evaluate the approvability of West Virginia's submittal 
as a SIP revision, the changes from the SIP approved version of 45CSR13 
must meet all applicable requirements (procedural and substantive) of 
40 CFR part 51 and the CAA. EPA has reviewed this SIP revision package 
in accordance with the completeness criteria described in section 
110(k)(1) and 40 CFR part 51, appendix V and has found it to be 
administratively and technically complete. The technical support 
document (TSD) prepared in support of this proposed action contains a 
detailed analysis of West Virginia's SIP submittal. The formal SIP 
submittal, completeness determination and TSD are available for review 
as part of the public docket at the times and locations listed in the 
ADDRESSES section of this document.
    EPA's requirements for SIP approval applicable to minor new source 
review permitting programs are established in part 51, subpart I--
Review of New Sources and Modifications, Sec. Sec. 51.160. through 
51.164. Other sections of subpart I, applicable only to new sources and 
modifications which are major, do not apply and are thus not addressed 
in this analysis. 2West Virginia's SIP submittal must also 
satisfy the criteria discussed in the June 28, 1989 Federal Register 
(54 FR 27274) in order for EPA to consider operating permits issued 
pursuant to 45CSR13 to be federally enforceable on a permanent basis. 
3These same criteria, in conjunction with the statutory 
requirements of section 112(l)(5) of the Act, are used to evaluate the 
approvability of the 45CSR13 program for the purpose of creating 
federally enforceable permit conditions for sources hazardous air 
pollutants (HAPs).
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    \2\  West Virginia has developed separate rules to meet the 
requirements of subpart I applicable to major sources, namely, 
45CSR14 - ``Permits for Construction and Major Modification of Major 
Stationary Sources of Air Pollution for the Prevention of 
Significant Deterioration'' and 45CSR19 - ``Requirements for Pre-
Construction Review, Determination of Emissions Offsets for Proposed 
New or Modified Sources of Air Pollutants and Emission Trading for 
Intrasource Pollutants''.
    \3\  In the memorandums entitled ``Release of Interim Policy on 
Federal Enforceability of Limitations on Potential to Emit'' 
(January 22, 1996) and ``Options for Limiting the Potential to Emit 
(PTE) of a Stationary Source under Section 112 and Title V of the 
Clean Air Act (Act)'' (January 25, 1995), EPA announces a temporary 
recognition of practically enforceable state limits on potential 
emissions as being federally enforceable.
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A. Minor New Source Review

    The SIP revision represents comprehensive changes from the SIP 
approved version of West Virginia's minor new source review program. 
For purposes of efficiency, the discussion and analysis of these 
changes are grouped according to the following categories: 
applicability, permit issuance procedures (including public 
participation), and program features and nomenclature.
1. Applicability
    West Virginia's submittal exempts constructions, modifications, and 
relocations which are subject to the major preconstruction permit 
requirements of West Virginia's 45CSR14 (PSD) or 45CSR19 (non-
attainment NSR) programs from minor new source review permitting 
requirements. The purpose of this exemption is to avoid duplicative 
permitting obligations for the construction and relocation of new major 
sources, and for sources which undergo major modifications since such 
activities are subject to the State's major new source review 
permitting programs. The submittal also exempts a category of sources 
referred to as ``Indirect Affected sources'' from West Virginia's minor 
new source review program. Indirect sources are facilities such as 
parking lots, highway projects, and airport constructions or expansions 
which attract or potentially attract mobile sources of pollution. The 
Federal requirement for state SIPs to include ``indirect source review 
programs'' has been removed (see CAA section 110(a)(5)). West 
Virginia's submittal also attempts to exempt sources which have been 
issued operating permits pursuant to Title V of the Clean Air (herein 
after referred to as ``Title V sources'') from minor new source review. 
If approved into the SIP, such an exemption will apply to virtually all 
major sources in West Virginia. Although constructions and 
modifications at Title V sources are subject to the permit revision 
procedures of West Virginia's Title V permitting program, such 
procedures do not replace the Federal requirements for new source 
review (major or minor) applicable to such activities. The effect of 
this exemption is to allow constructions of new non-major sources and 
non-major modifications at Title V sources to proceed without 
considering the impact of such activities on the State's control 
strategy (including applicable PSD increments) or ability to attain or 
maintain national ambient air quality standards (NAAQS). Accordingly, 
West Virginia is unable to prevent activities at Title V sources which 
result in violations of the State's control strategy, or interfere with 
attainment or maintenance of the NAAQS, a fundamental requirement of 
new source review programs.
    In addition to the categorical exemptions discussed above, West 
Virginia's submittal changes applicability to minor new source review 
in other ways. The program uses the terms ``stationary source'' and 
``modification'' to define the scope of activities which are subject to 
review. Both these terms are defined with emissions levels determining 
what qualifies as either a ``stationary source'' or a ``modification''. 
Unless subject to an emissions control rule promulgated by the 
Commission, sources with emissions or potential emissions below the 
specified ``stationary source'' emissions levels are not considered to 
be ``stationary sources''. West Virginia employs a (six) 6 lb/hr 
threshold for sources of VOC or any of the pollutants for which the 
State has promulgated an ambient air quality standard (SO2, PM10, NO2, 
CO, O3 and non-methane

[[Page 5486]]

hydrocarbons). The 6 lb/hr size threshold for stationary sources, a 
component of West Virginia's SIP since the 1970's, now also applies to 
sources of VOCs, a category of pollutants which are regulated as ozone 
precursors. For sources of hazardous or toxic air pollutants (HAPS/
TAPS), West Virginia employs a new threshold equal to or above levels 
employed in the State's toxic emissions control rule(45CSR27). These 
levels range from (eight-tenths) 0.8 lbs/yr (Beryllium) to (ten 
thousand)10,000 lbs/yr (Allyl Chloride, Trichloroethylene). Lead and 
lead compounds are defined as HAPS/TAPS with a (twelve thousand) 12,000 
lbs/year threshold.
    Accordingly, West Virginia's minor new source review program 
captures all non-major sources which are subject to State emission 
control rules, and other non-major sources with potential or actual 
emissions above established thresholds. Similarly, physical or 
operational changes at stationary sources which result in emissions 
increases below the ``modification'' emission levels are not considered 
to be ``modifications''. Where the SIP-approved version of 45CSR13 
contained no such emission levels to define modifications, West 
Virginia's submittal employs a modification threshold of (two) 2 lbs/hr 
or (five) 5 tons/year or more of any pollutant which is not a toxic or 
hazardous air pollutant. For sources with potential emissions of 
hazardous or toxic air pollutants equal to or greater than the levels 
specified in West Virginia's toxic emissions control rule (45CSR27), 
any change which results in an emissions increase is considered to be a 
modification and subject to minor new source review. Changes at sources 
with potential emissions below the 45CSR27 levels are also considered 
to be modifications if the emissions increase would result in total 
emissions at the source above the 45CSR27. Regardless of the pollutants 
involved, the program requires changes which result in emission 
increases below the modification emissions thresholds to be reported to 
the State. On a case-by-case basis, the State may determine that such 
activities must also be permitted. This notification requirement for 
modifications provides an additional layer of protection which will 
enable the State to determine whether small changes at sources will 
interfere with the attainment and maintenance of the NAAQS, or violate 
the control strategy (including PSD increments).
    Similar to the Federal definition of the term ``major 
modification'' in 40 CFR part 51, the definition of ``modification'' in 
45CSR13 exempts certain types of actions. As a new exemption, section 
2.18.d.A. precludes from being considered a modification the 
installation or replacement of air pollution control equipment if the 
new equipment is at least as effective as the equipment replaced and no 
new air pollutant is discharged from its installation. EPA believes 
that this exemption employs adequate safeguards for purposes of West 
Virginia's minor new source review program. West Virginia's program 
uses the terms ``major stationary source'' and ``major modification'' 
to establish the upper limits of the scope of the 45CSR13 program. 
Identical terms are used to determine applicability in West Virginia's 
major pre-construction permitting programs, 45CSR14 (PSD) and 45CSR19 
(non-attainment NSR). 4Since 45CSR13 exempts construction 
and modification-related activities which are subject to either 45CSR14 
or 45CSR19, it is critical that these programs define ``major 
stationary source'' and ``major modification'' consistently to avoid 
confusion when determining which pre-construction permitting program 
applies in a given instance. 5The 45CSR13 definition of the 
term ``Major modification'' references the definitions continued in 
45CSR14 and 45CSR19 and thus inherently satisfies EPA's concern about 
definition parity. While the 45CSR13 definition of ``Major stationary 
source'' is consistent with the definitions found in 45CSR14 and 
45CSR19 in terms of emissions thresholds, the 45CSR13 definition does 
not delineate when fugitive emissions need to be included as is done in 
the major permit program rules. Without such a distinction, the 45CSR13 
definition could be interpreted to require fugitive emissions to be 
included in all cases so that certain sources of fugitive emissions are 
``major sources'' under 45CSR13 but not under 45CSR14 and 45CSR19. This 
presents a consistency problem since such sources would be exempt from 
all new source review requirements. To address this issue, West 
Virginia submitted a written clarification indicating that, with 
respect to the inclusion of fugitive emissions in major stationary 
source determinations, the definition of ``Major stationary source'' in 
45CSR13 will be interpreted consistently with 45CSR14 and 45CSR19.
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    \4\  The definition of the terms ``major stationary'' source and 
``major modification'' in West Virginia's 45CSR14 (PSD) and 45CSR19 
(non-attainment NSR), must be consistent with the federal 
definitions found in section 40 CFR 51.165 (non-attainment New 
Source Review(NSR)) and Sec. 51.166 (Prevention of Significant 
Deterioration (PSD)).
    \5\  The issue of consistency of terms is addressed in the 
proposed revisions to title 40 of the Code of Federal Regulations 
(40 CFR) parts 51, 70 and 71 published in the Federal Register on 
August 31, 1995 (see 60 FR 45564). In this document, EPA proposes 
rulemaking to clarify that all of the terms used in Sec. Sec. 51.160 
through 51.164 have the same meaning as provided elsewhere in 
subpart I of part 51, or in the Act.
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2. Permit Issuance Procedures
    The procedures for permit issuance applicable to the issuance of 
construction, modification, relocation, and existing stationary source 
operating permits have been enhanced to satisfy the requirements of 
Sec. 51.161 for new source review programs and the criteria set forth 
by EPA on June 28, 1989 (57 FR 27274) for federally enforceable state 
operating permit programs (FESOPPs). Other changes affecting permit 
issuance include the addition of new provisions for conducting 
completeness evaluations of permit applications, revised deadlines for 
permit issuance, and the removal of outdated source registration 
provisions. Provisions allowing sources to construct or modify by 
default have also been removed.
    The revised procedures also allow the Chief to issue temporary 
permits which authorize experimental product or process changes for up 
to six (6) months (which may be extended in writing up to twelve (12) 
additional months). In acting to issue or deny an application for a 
temporary permit, the Chief is required to provide a fifteen (15) day 
public comment period on the temporary permit application.
    EPA recognizes that, in some cases, a full-scale six (6) month 
minor new source review permit issuance process for proposed 
experimental product or process changes may be impracticable and/or 
unnecessarily burdensome. EPA also recognizes that states should have 
the ability to limit the public participation for certain minor new 
source permitting actions. Since states can exempt certain activities 
from minor NSR based on de minimis or administrative necessity grounds 
in accordance with the criteria set forth in Alabama Power Co. V. 
Costle, 636 F.2d 323(D.C. Cir. 1979), it follows that states should 
also be able to provide partial or full exemption from the full public 
process requirements of Sec. 51.160(e). Any such limitation on the full 
public participation requirements of Sec. 51.160(e), however, should be 
applied consistent with the environmental significance of the activity. 
6Although

[[Page 5487]]

temporary permits are issued only in specific instances and for limited 
periods of time, such conditions do not characterize situations of an 
inherently less environmentally significant nature. The effect of the 
temporary permitting procedure is that environmentally significant 
constructions or modifications may be authorized on a temporary basis 
without adequate opportunity for public participation. Without a 
correlation to the environmental significance of the activity, EPA 
cannot consider the minimum public process afforded, fifteen (15) days, 
to be adequate in all instances.
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    \6\  On August 31, 1995, EPA proposed a new paragraph (c) in 
Sec. 51.161 to clarify that, except for certain specified 
activities; state programs may vary procedures for, and timing of, 
public review in light of the environmental significance of the 
activity (see 60 FR 45564).
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3. Program Features and Nomenclature
    The revisions to 45CSR13 include new administrative provisions for 
issuing general permits authorizing construction or relocation of a 
category of sources by the same operator, or involving the same or 
similar precesses or pollutants, in accordance with the terms and 
conditions specified in the general permit. The revised 45CSR13 also 
establishes new provisions allowing for permit transfers after the 
Chief determines that the proposed permittee has all necessary permit 
responsibility. The new permittee must certify that a complete copy of 
the permit application and permit has been reviewed, and that all terms 
and conditions in the permit and operating parameters contained in the 
application will be adhered to. The Chief must also be provided a 
written agreement between the existing and new permittee with regard to 
the specific transfer date and the extent of permit responsibility 
between them. The revised 45CSR13 also includes a new provision for 
permit cancellation requiring permit holders to submit requests for 
cancellation in writing. The cancellation provision specifies that no 
permit cancellation shall become effective until the permittee and EPA 
have been given at least 30 days written notice. The cancellation 
provision further specifies that permit cancellation will not excuse 
any violation of permit terms or conditions prior to the effective date 
of the permit cancellation.
    The revisions to 45CSR13 include the addition of several new terms 
and the modification of existing terms which are defined in a manner 
consistent with the program's proper implementation and with the 
corresponding definitions of Sec. Sec. 51.165 and 51.166 applicable to 
major new source review permitting programs. The revisions also delete 
several outdated terms such as ``indirect affected source''. These 
changes update the programs definitions consistent with the current 
terminology employed by the Act and with EPA's regulations.

B. Federally Enforceable State Operating Permit Programs

    On June 28, 1989 EPA amended the definition of ``federally 
enforceable'' to clarify that terms and conditions contained in state-
issued operating permits are federally enforceable provided that the 
state's operating permits program is approved into the SIP under 
section 110 of the CAA as meeting certain criteria, and provided that 
the permit conforms to the requirements of the approved program (54 FR 
27282). The five criteria set forth by EPA require state programs to: 
(a) Be approved into the SIP; (b) impose legal obligations to conform 
to the permit limitations; (c) provide for limits that are enforceable 
as a practical matter; (d) issue permits through a process that 
provides for review and an opportunity for comment by the public and by 
EPA; and (e) ensure that there will be no relaxation of otherwise 
applicable Federal requirements. West Virginia's revised 45CSR13 
includes a new ``opt-in'' provision where sources not otherwise 
required to be permitted for purposes of new source review may 
voluntarily apply for an existing stationary source operating permit. 
This provision was added so that 45CSR13 could serve dually as West 
Virginia's minor new source review program and as its FESOPP. The 
procedures for issuing existing stationary source operating permits 
under 45CSR13 are identical to those followed for issuing minor new 
source review permits. West Virginia's revised 45CSR13 program meets 
the June 28, 1989 criteria by ensuring that permit terms are permanent, 
quantifiable, and practically enforceable and by providing adequate 
notice and comment to both EPA and the public. However, since such 
requirements must be satisfied on a permit by permit basis, EPA may 
deem individual permits which contain terms and conditions that are not 
quantifiable or practically enforceable not ``federally enforceable''. 
Regarding ``permanence'', section 11.3 of West Virginia's rule provides 
that the issuance of a Title V operating permit will operate to revoke 
an existing stationary source operating permit. EPA expects that many 
of the existing stationary source operating permits issued are to 
sources which are seeking to avoid Title V permitting obligations. For 
these sources, the ``automatic revocation'' provision will not be 
triggered. However, some sources may rely on limitations on potential 
emissions established in existing stationary source operating permits 
to avoid other ``major source'' program requirements such as major NSR, 
PSD, or Title III MACT standards and will trigger the ``automatic 
revocation'' provisions. For these sources, the superseding Title V 
permit will need to address such limitations as applicable requirements 
(similar to how minor NSR permit conditions are addressed in the Title 
V permit), or else place the source at risk for violating applicable 
``major source'' program requirements. EPA is assured that sources that 
obtain limitations on potential emissions in existing stationary source 
operating permits will keep such limitations in effect, so as to never 
be in violation of ``major source'' permitting or other program 
requirements. EPA interprets section 11.3 to authorize supersession of 
existing stationary source operating permits only, and not 
construction, modification or relocation permits. The TSD provides a 
thorough analysis of the West Virginia's 45CSR13 program against EPA's 
June 28, 1989 criteria.

C. Federally Enforceable Permit Conditions for Hazardous Air Pollutants

    West Virginia's revised 45CSR13 defines the term ``regulated air 
pollutant'' to include nineteen (19) hazardous/toxic pollutants which 
are regulated by the State's air toxic rule (45CSR27), and ``..any 
other pollutants subject to an emissions standard promulgated by the 
Commission including mineral acids in 45CSR7.'' West Virginia has 
adopted specific regulations which incorporate Federal National 
Emissions Standards for Hazardous Air Pollutants (NESHAPS) promulgated 
at 40 CFR parts 61 and 63 by reference. West Virginia updates these 
authorities in State regulations on an annual basis. EPA interprets the 
45CSR13 definition of ``regulated air pollutant'' to provide the 
necessary authority for 45CSR13 permits to contain conditions on HAPs 
which are regulated by 40 CFR parts 61 and 63 NESHAPS and which have 
been adopted into West Virginia's regulations. On September 5, 1996, 
the West Virginia Department of Environmental Protection (WVDEP) 
submitted a letter clarifying that West Virginia also requests EPA 
approval under section 112(l) of the 45CSR13 program submitted on 
August 26, 1994.
    EPA approval of 45CSR13 program under section 112(l) of the Act is 
necessary to extend West Virginia's authority under section 110 of the 
Act to include the authority to create federally enforceable limits on 
the potential to emit HAPs. EPA has determined that the five approval 
criteria for approving FESOPPs into the

[[Page 5488]]

SIP, as specified in the June 28, 1989 Federal Register notice, are 
also appropriate for evaluating and approving programs under section 
112(l). Although the June 28, 1989 notice did not address HAPs, this is 
because it was written prior to the 1990 amendments to section 112 of 
the CAA. EPA believes that the use of the same criteria for evaluating 
programs for both criteria and hazardous pollutants is appropriate 
since the approval criteria are not based or dependent on pollutant, 
but on general program elements which must be present for the program 
to be deemed minimally approvable by EPA. Hence, the five criteria 
discussed above are applicable to FESOPP approvals under section 112(l) 
as well as under section 110.
    In addition to meeting the criteria discussed above, state programs 
must meet the statutory criteria for approval under section 112(l)(5) 
of the CAA. This section allows EPA to approve a program only if it: 
(1) Contains adequate authority to assure compliance with any Section 
112 standard or requirement; (2) provides for adequate resources; (3) 
provides for an expeditious schedule for assuring compliance with 
Section 112 requirements; and (4) is otherwise likely to satisfy the 
objectives of the CAA. EPA plans to codify the approval criteria for 
programs limiting the potential to emit of HAPs through amendments to 
Subpart E of 40 CFR part 63, the regulations promulgated to implement 
section 112(l) of the Act. (See 58 FR 62262). EPA currently anticipates 
that these criteria, as they apply to FESOPP programs, will mirror 
those set forth in the June 28, 1989 notice, with the addition that the 
State's authority must extend to HAPs instead of or in addition to 
VOC's and PM10. The EPA currently anticipates that FESOPP programs that 
are approved pursuant to Section 112(l) prior to the planned Subpart E 
revisions will have had to meet these criteria, and hence will not be 
subject to any further approval action.
    EPA believes it has the authority under section 112(l) to approve 
programs to limit potential to emit of HAPs directly under section 
112(l) prior to this revision to Subpart E. Section 112(l)(5) requires 
EPA to disapprove programs that are inconsistent with guidance required 
to be issued under section 112(l)(2). This might be read to suggest 
that the ``guidance'' referred to in section 112(l)(2) was intended to 
be a binding rule. Even under this interpretation, EPA does not believe 
that section 112(l) requires this rulemaking to be comprehensive. That 
is, it need not address every possible instance of approval under 
section 112(l). EPA has already issued regulations under section 112(l) 
that would satisfy any section 112(l)(2) requirement for rulemaking. 
Given the timing problems posed by impending deadlines set forth in 
``maximum achievable control technology'' (MACT) emission standards 
under section 112 and for submittal of Title V permit applications, the 
EPA believes it is reasonable to read section 112(l) to allow for 
approval of programs to limit potential to emit prior to promulgation 
of a rule specifically addressing this issue.
    West Virginia's satisfaction of the criteria published in the 
Federal Register of June 28, 1989, has been discussed above. In 
addition, West Virginia's 45CSR13 program meets the statutory criteria 
for approval under 112(l)(5). EPA believes West Virginia's 45CSR13 
program contains adequate authority to assure compliance with section 
112 requirements since it does not provide for waiving any section 112 
requirement(s). Sources would still be required to meet section 112 
requirements applicable to non-major sources. Regarding adequate 
resources, West Virginia subjects sources required to be permitted 
under 45CSR13 to the State's fee regulation, 45CSR22 ``Air Quality Fee 
Program''. Furthermore, EPA believes that West Virginia's 45CSR13 
program provides for an expeditious schedule for assuring compliance 
because it allows a source to establish a voluntary limit on potential 
to emit and avoid being subject to a Federal Clean Air Act requirement 
applicable on a particular date. Nothing in West Virginia's 45CSR13 
program would allow a source to avoid or delay compliance with a 
Federal requirement if it fails to obtain the appropriate federally 
enforceable limit by the relevant deadline. Finally, West Virginia's 
45CSR13 program is consistent with the objectives of the Section 112 
program because its purpose is to enable sources to obtain federally 
enforceable limits on potential to emit to avoid major source 
classification under section 112. EPA believes that this purpose is 
consistent with the overall intent of section 112. The Technical 
Support Document contains a more thorough analysis of West Virginia's 
45CSR13 program against the statutory criteria for approval under 
112(l)(5).
    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the Addresses section of 
this document.

III. Proposed Action

    EPA is proposing to disapprove the exemption from minor new source 
review for sources issued Title V permits as such an exemption does not 
comport with the Federal requirements of 40 CFR 51.160. EPA is also 
proposing to disapprove the new provisions governing the issuance of 
temporary construction or modifications permits as such provisions do 
not satisfy the Federal requirements for public participation of 40 CFR 
51.161. EPA is proposing to approve all other portions of 45CSR13 as a 
revision to the West Virginia SIP. Such an action will enable EPA to 
approve and make federally enforceable the many updates and 
improvements from the SIP approved version of the program, and at the 
same time prevent serious relaxations of the SIP related to the 
program's scope and public participation requirements.
    EPA is proposing to approve 45CSR13 under section 110 of the Act 
because the program meets the June 28, 1989 approval criteria for 
federally enforceable state operating permit programs. For this reason 
and because the program meets the statutory requirements of section 
112(l)(5) of the Act, EPA is also proposing approval of West Virginia's 
45CSR13 program pursuant to section 112(l) of the Act for the purpose 
of limiting the potential to emit of HAPs. Such an action will confer 
Federal enforceability status to existing stationary source operating 
permits which are issued to sources of criteria pollutants or HAPs in 
accordance with 45CSR13 and the five June 28, 1989 criteria, including 
permits which have been issued prior to EPA's final action.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic and environmental factors and in 
relation to relevant statutory and regulatory authority.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare

[[Page 5489]]

a regulatory flexibility analysis assessing the impact of any proposed 
or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, 
EPA may certify that the rule will not have a significant impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and government entities 
with jurisdiction over populations of less than 50,000.
    SIP approvals under sections 110 and subchapter I, part D of the 
CAA do not create any new requirements but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP 
approval does not impose any new requirements, the administrator 
certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the CAA, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA to base its actions concerning 
SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 
255-66 (1976); 42 U.S.C. 7410(a)(2).
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing Federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new requirements.

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.
    The Administrator's decision to approve or disapprove this revision 
to the West Virginia SIP for minor sources will be based on whether it 
meets the requirements of section 110(a)(2)(A)-K) and of the Clean Air 
Act, as amended, and EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 22, 1998.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 98-2615 Filed 2-2-98; 8:45 am]
BILLING CODE 6560-50-F