[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Rules and Regulations]
[Pages 9559-9561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4629]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV055-6025a; FRL-7449-4]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Permits for Construction, Modification, Relocation and 
Operation of Stationary Sources of Air Pollutants, Notification 
Requirements, Administrative Updates, Temporary Permits

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 
West Virginia State Implementation Plan (SIP). The revisions change 
portions of West Virginia's minor new source review and existing 
stationary source operating permit program. Specifically, today's 
action converts the partial approval and partial disapproval of West 
Virginia's minor new source review permit program, published on January 
13, 2000 to a full approval. EPA's full approval of the revision to the 
West Virginia SIP is based on the findings that the deficiencies that 
formed the basis for the partial approval/disapproval of West 
Virginia's minor new source review permit program have been corrected 
in this SIP revision. The rule, as submitted, is in accordance with the 
requirements of the Clean Air Act.

DATES: This rule is effective on April 29, 2003 without further notice, 
unless EPA receives adverse written comment by March 31, 2003. 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 should be mailed to Makeba A. Morris, 
Chief, Permits and Technical Assessment Branch, Mail Code 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; 
the Air and Radiation Docket and Information Center, U.S. Environmental 
Protection Agency, 1301 Constitution Avenue, NW, Room B108, Washington, 
DC 20460; and West Virginia Department of Environmental Protection, 
Division of Air Quality, 7012 MacCorkle Avenue, SE., Charleston, WV 
25304-2943.

FOR FURTHER INFORMATION CONTACT: Michael I. Ioff, P.E., (215) 814-2166, 
or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 13, 2000 (65 FR 2042), EPA published a final rule notice 
(FRN) regarding West Virginia's minor new source review and existing 
stationary source operating permit program. The FRN approved in part, 
and disapproved in part, changes to West Virginia's minor new source 
review permit program as a revision to the West Virginia SIP. With the 
exception of the two separate provisions included in West Virginia's 
submission, the FRN approved West Virginia's minor new source review 
and existing stationary source operating permit program under section 
110 of the Act as meeting the criteria set forth in a June 28, 1989 
Federal Register document (54 FR 27274) for state permit programs that 
can limit a source's potential to emit criteria pollutants. The FRN 
also approved West Virginia's minor new source review and existing 
stationary source operating permit program under section 112(l) of the 
Act as meeting the statutory criteria for state permit programs that 
can limit a source's potential to emit hazardous air pollutants (HAPs).
    Concurrently, the FRN disapproved two separate provisions included 
in West Virginia's minor new source review and existing stationary 
source operating permit program. Specifically, the FRN disapproved an 
exemption from minor new source review for sources that have been 
issued permits under the State's Federally approved major source 
operating permit program (developed pursuant to Title V of the Clean 
Air Act) as such exemption did not comport with the federal 
requirements of 40 CFR 51.160 regarding the scope of the program. In 
addition, the FRN disapproved provisions governing the issuance of 
temporary construction or modification permits with only a 15-day 
public comment period as such provisions did not satisfy the Federal 
requirements for a 30-day comment period required by 40 CFR 51.161(b).

Summary of SIP Revision

    To address the deficiencies of West Virginia Regulation CSR13 
described in the January 13, 2000 rulemaking action, the State of West 
Virginia submitted on September 21, 2000, a formal revision to its SIP. 
The submitted SIP, which consists of changes to West Virginia 
Regulation CSR13, applies statewide and corrects the deficiencies that 
formed the basis for the partial disapproval of West Virginia's minor 
new source review and existing stationary source operating permit 
program. In order to correct the deficiencies, the exemption from minor 
new source review for sources that have been issued permits under the 
State's Federally-approved major source operating permit program was 
removed. In addition, the provision governing the issuance of temporary 
construction or modification permits with a 15-day public comment 
period was revised to provide for a 30-day public comment period in 
order to be consistent with the federal requirements for public 
participation found at 40 CFR 51.161(b).
    As part of its September 21, 2000 SIP revision, West Virginia also 
submitted a number of additional revisions intended to, among other 
things, streamline the permitting process. Those revisions include 
changes to the construction and modification thresholds; creation of a 
``de-minimis'' source list; changes in the definitions of volatile 
organic compounds (VOCs) and HAPs; and, clarification of the definition 
of when ``construction'' commences. Also, West Virginia Regulation 
CSR13 was revised to incorporate an administrative process

[[Page 9560]]

for making relatively minor permit revisions. The revised Regulation 
CSR13 contains modified public notice procedures, such as: eliminating 
the two-step notice from the previous regulation; establishing a 30-day 
notice for certain actions and a 45-day notice for the remainder; and, 
additional notice methods which may be required by the State. The 
revised regulation also provides further clarification regarding HAPs 
and toxic air pollutants and revised procedures for temporary permits. 
EPA has reviewed these revisions to West Virginia Regulation CSR13 and 
find that they are at least as stringent as the corresponding 
requirements of the Clean Air Act.

II. Final Action

    EPA is approving this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comment from either the public or the regulated community. 
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 April 29, 2003 without further notice unless EPA 
receives adverse comment by March 31, 2003. 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.

III. Statutory and Executive Order Reviews

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 tribal implications because it will 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). 
This action also does not have Federalism implications because it does 
not 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). 
This action 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 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP 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 a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP 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. 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.).

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, to approve the West Virginia minor new 
source review and existing stationary source operating permit program, 
must be filed in the United States Court of Appeals for the appropriate 
circuit by April 29, 2003. 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 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, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: January 31, 2003.
Donald S. Welsh,
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.

[[Page 9561]]

Subpart XX--West Virginia

    2. Section 52.2520 is amended by adding paragraph (c)(52) to read 
as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *
    (52) Revisions to the West Virginia Regulations 45CSR13--Permits 
for Construction, Modification, Relocation and Operation of Stationary 
Sources of Air Pollutants, Notification Requirements, Administrative 
Updates, Temporary Permits, General Permits, and Procedures for 
Evaluation, submitted on September 21, 2000 by the West Virginia 
Department of Environmental Protection:
    (i) Incorporation by reference.
    (A) Letter of September 21, 2000, from the West Virginia Department 
of Environmental Protection transmitting revision to West Virginia 
Regulation 45CSR13.
    (B) West Virginia Regulations 45CSR13--Permits for Construction, 
Modification, Relocation and Operation of Stationary Sources of Air 
Pollutants, Notification Requirements, Administrative Updates, 
Temporary Permits, General Permits and Procedures for Evaluation, 
effective June 1, 2000.
    (ii) Additional Material--Remainder of the State submittal 
pertaining to the revisions listed in paragraph (c)(52)(i) of this 
section.

[FR Doc. 03-4629 Filed 2-27-03; 8:45 am]
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