[Federal Register Volume 66, Number 195 (Tuesday, October 9, 2001)]
[Rules and Regulations]
[Pages 51318-51320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24711]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[WV-T5-2001-02a; FRL-7073-9]


Clean Air Act Approval of Operating Permit Program Revisions; 
West Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
operating permit program of the State of West Virginia. West Virginia's 
operating permit program was submitted in response to the Clean Air Act 
(CAA) Amendments of 1990 that required States to develop, and submit to 
EPA, programs for issuing operating permits to all major stationary 
sources and to certain other sources within the States' jurisdiction. 
The EPA granted final interim approval of West Virginia's operating 
permit program on November 15, 1995. West Virginia has revised its 
operating permit program since receiving interim approval and this 
action approves those revisions. Any parties interested in commenting 
on this action proposing to approve discretionary revision to West 
Virginia's title V operating permit program should do so at this time. 
A more detailed description of West Virginia's submittal and EPA's 
evaluation are included in a Technical Support Document (TSD) in 
support of this rulemaking action. A copy of the TSD is available, upon 
request, from the EPA Regional Office listed in the ADDRESSES section 
of this document.

DATES: This rule is effective on November 23, 2001 without further 
notice, unless EPA receives adverse written comment by November 8, 
2001. 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: Written comments may be mailed to Makeba Morris, Chief, 
Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the documents relevant 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 
and West Virginia Department of Environmental Protection, Office of Air 
Quality, 1558 Washington Street, East, Charleston, West Virginia, 
25311.

FOR FURTHER INFORMATION CONTACT: David Campbell, Permits and Technical 
Assessment Branch at (215) 814-2196 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On June 1, 2001, the State of West Virginia 
submitted amendments to its State operating permit program. These 
amendments are the subject of this document and this section provides 
additional information on the amendments by addressing the following 
questions:

What is the State operating permit program?
What is being addressed in this document?
What is not being addressed in this document?
What changes to West Virginia's operating permit program is EPA 
approving?
What action is being taken by EPA?

What Is the State Operating Permit Program?

    The Clean Air Act Amendments of 1990 required all States to develop 
operating permit programs that meet certain federal criteria. When 
implementing the operating permit programs, the States require certain 
sources of air pollution to obtain permits that contain all of their 
applicable requirements under the Clean Air Act (CAA). The focus of the 
operating permit program is to improve enforcement by issuing each 
source a permit that consolidates all of its applicable CAA 
requirements into a federally-enforceable document. By consolidating 
all of the applicable requirements for a given air pollution source 
into an operating permit, the source, the public, and the State 
environmental agency can more easily understand what CAA requirements 
apply and how compliance with those requirements is determined.
    Sources required to obtain an operating permit under this program 
include ``major'' sources of air pollution and certain other sources 
specified in the CAA or in EPA's implementing regulations. For example, 
all sources regulated under the acid rain program, regardless of size, 
must obtain operating permits. Examples of ``major'' sources include 
those that have the potential to emit 100 tons per year or more of 
volatile organic compounds, carbon monoxide, lead, sulfur dioxide, 
nitrogen oxides, or particulate matter (PM10); those that emit 10 tons 
per year of any single hazardous air pollutant (HAP) specifically 
listed under the CAA; or those that emit 25 tons per year or more of a 
combination of HAPs. In areas that are not meeting the national ambient 
air quality standards (NAAQS) for ozone, carbon monoxide, or 
particulate matter, major sources are defined by the gravity of the 
nonattainment classification.

What Is Being Addressed in This Document?

    On June 1, 2001, West Virginia submitted revisions to its currently 
EPA-approved title V operating permit program. In general, West 
Virginia made minor technical and administrative corrections to its 
existing operating permit program regulations. The revisions consist 
primarily of typographical and editorial corrections to definitions and 
other program elements. These program revisions were submitted pursuant 
to 40 CFR 70.4(i) which provides that a State with an approved program 
may initiate a program revision when the relevant State regulations are 
modified or supplemented. West Virginia's operating permit program 
received interim approval in 1995. West Virginia has modified and 
supplemented its permit program regulations since that time. West 
Virginia submitted the revisions for EPA action according to 40 CFR 
70.4(i)(2)(iii).

What Is Not Being Addressed in This Document?

    As part of its June 1, 2001 submittal, West Virginia also provided 
amendments to its operating permit program regulations to address 
deficiencies identified by EPA when it granted final interim approval 
of West Virginia's program in 1995. Since these program amendments are 
not directly relevant to this rulemaking action approving revisions to 
West Virginia's operating permit program, they are being considered in 
a separate rulemaking action.
    On December 11, 2000, EPA announced a 90-day comment period for 
members of the public to identify deficiencies they perceive exist in 
State and local agency operating permits programs. [See 65 FR 77376.] 
The public was able to comment on all currently-approved operating 
permit programs, regardless of whether they have been granted full or 
interim approval. The EPA Region III did not receive comments germane 
to West Virginia's currently-approved operating permit program.

What Changes to West Virginia's Program Is EPA Approving?

    The EPA has reviewed West Virginia's June 1, 2001 program revisions 
in conjunction with the portion of West Virginia's program that was 
earlier approved by EPA. Based on this review,

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EPA is approving revisions to West Virginia's operating permit program. 
The EPA has determined that the revisions to West Virginia's operating 
permit program appropriately clarify and improve the currently approved 
version of its program. The revisions fully meet the minimum 
requirements of 40 CFR part 70.
    In general, West Virginia revised its permit program regulations in 
order to clarify certain definitions and minor procedural matters. The 
following describes the revisions made to West Virginia's operating 
permit program.

Changes to West Virginia's Operating Permit Program

    1. Minor renumbering of sections has occurred.
    2. Added section 1.5.
    3. In section 2.7, removed ``Sec. 111 or'' from the definition of 
``Area source''.
    4. In section 2.12, clarified definition by adding, ``such other 
person to whom the director has delegated authority of duties pursuant 
to W.Va. Code Secs. 22-1-6 or 22-1-8'' and revised capitalization.
    5. In section 2.13, removed ``that Division of'' and revised 
capitalization.
    6. In section 2.38.c, revised ``part'' to ``rule''.
    7. Removed parentheses at the beginning of the last sentence of 
section 4.1.a.2.
    8. In section 4.3.c.1, ``subsection'' revised to ``subdivision''.
    9. In section 5.1.j.3, revised ``part'' to ``rule''.
    10. In section 5.9.f, revised ``reivew'' to ``review''.
    11. In section 6.4.c, revised ``part'' to ``rule''.
    12. In section 6.5.a.5, revised ``permitee'' to ``permittee''.
    13. Removed section 12.2 pursuant to federal regulations 
implementing section 112(g) of the CAA deleting the requirement to do a 
case-by-case technology-based standard for existing sources which 
modify their facilities.
    14. Removed ``Caprolactam'' from Table 45-30A.

What Action Is Being Taken by EPA?

    The State of West Virginia submitted revisions to its operating 
permit program on June 1, 2001 in order to clarify and improve certain 
aspects of its program. The operating permit program revisions that are 
the subject of this document considered together with that portion of 
West Virginia's operating permit program that was earlier approved by 
EPA fully satisfy the minimum requirements of 40 CFR part 70 and the 
Clean Air Act. Therefore, EPA is taking direct final action to approve 
revisions to the State of West Virginia's title V operating permit 
program in accordance with 40 CFR 70.4(i)(2)(iii).
    The 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 operating permit program approval if 
adverse comments are filed relevant to the issues discussed in this 
action. This rule will be effective on November 23, 2001 without 
further notice unless EPA receives adverse comment by November 8, 2001. 
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. The EPA will address all public comments in a subsequent 
final rule based on the proposed rule. The 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.

Administrative Requirements

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 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), nor will it 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), because it 
merely approves a State rule implementing a Federal standard, 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 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing State operating permit program 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 an operating permit program 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews an operating permit program 
submission, to use VCS in place of an operating permit program 
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. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct. The EPA has 
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by 
examining the takings implications of the rule in accordance with the 
``Attorney General's Supplemental Guidelines for the Evaluation of Risk 
and Avoidance of Unanticipated Takings' issued under the executive 
order. 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.).

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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 December 10, 2001. 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 approving revisions to West Virginia's 
title V operating permit program may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 70

    Administrative practice and procedure, Air pollution control, 
Environmental protection, Intergovernmental relations, Operating 
permits, Reporting and recordkeeping requirements.

    Dated: September 25, 2001.
Donald S. Welsh,
Regional Administrator, Region III.

    Appendix A of part 70 of title 40, chapter I, of the Code of 
Federal Regulations is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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


    2. Appendix A to part 70 is amended by adding paragraph (d) in the 
entry for West Virginia to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

West Virginia

* * * * *
    (d) The West Virginia Department of Environmental Protection 
submitted program revisions on June 1, 2001. The rule revisions 
contained in the June 1, 2001 submittal revise West Virginia's 
existing approved program. The State is hereby granted revised 
approval effective on November 23, 2001.
* * * * *
[FR Doc. 01-24711 Filed 10-5-01; 8:45 am]
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