[Federal Register Volume 70, Number 202 (Thursday, October 20, 2005)]
[Proposed Rules]
[Pages 61104-61106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20986]



[[Page 61104]]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-WV-0002; FR-7986-7]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Emission Reductions to meet Phase II of the Nitrogen 
Oxides (NOX) SIP Call

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to grant conditional approval of a State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia pertaining to nitrogen oxides (NOX) emission 
reductions required under the NOX SIP Call. The SIP 
revision, required under Phase II of the NOX SIP Call (Phase 
II), consists of West Virginia's rule to meet its remaining 
NOX emission reduction obligations. In order to meet the 
April 2005 SIP revision submission due date specified under Phase II, 
the West Virginia Department of the Environment (WVDEP) adopted this 
rule using West Virginia's emergency rule procedures. In West Virginia, 
such emergency rules have a sunset date. In order for West Virginia to 
have a fully approvable SIP revision to satisfy Phase II, the WVDEP 
must adopt a permanent rule with an effective date prior to the sunset 
date of the emergency rule, and must submit the permanent rule as a SIP 
revision to EPA by July 1, 2006. The WVDEP is currently in the process 
of adopting its permanent version of the rule to satisfy the Phase II 
requirements. The WVDEP has submitted a written commitment to EPA 
stating it will adopt the permanent rule with an effective date prior 
to the sunset date of the emergency rule, and will submit the permanent 
rule as a SIP revision to EPA by July 1, 2006. EPA is proposing to 
grant conditional approval of this SIP revision based upon West 
Virginia's commitments. This action is being taken under the Clean Air 
Act (CAA).

DATES: Written comments must be received on or before November 21, 
2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-WV-0002 by one of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    E-mail: [email protected].
    Mail: R03-OAR-2005-WV-0002, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operations, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to RME ID No. R03-OAR-2005-WV-
0002. EPA's policy is that all comments received will be included in 
the public docket without change, and may be made available online at 
http://www.docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send e-mail comment directly to EPA without going 
through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://www.docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., 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 in RME 
or in hard copy 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, 7012 MacCorkle Avenue, SE., 
Charleston, West Virginia 25304-2943.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: West Virginia's Phase I NOX SIP 
Call trading program was approved as part of the West Virginia SIP on 
May 10, 2002 (67 FR 31733). On April 21, 2004 (69 FR 21604), EPA 
promulgated Phase II of the NOX SIP Call which, among other 
changes, adjusted state budgets downward to reflect emission reductions 
based upon the application of cost effective controls on stationary 
internal combustion (IC) engines that emitted more than one ton of 
NOX per average ozone season day in 1995. On March 30, 2005, 
the State submitted a revision to its SIP to satisfy the additional 
emission reductions required under Phase II. The March 30, 2005 
submittal is comprised of an emergency rule that sunsets after 15 
months, on June 2, 2006. However, in its March 30, 2005 SIP submittal, 
the WVDEP indicated that it is in the process of adopting an identical 
permanent rule. On August 15, 2005, the WVDEP submitted a letter 
committing to adopt a permanent rule having an effective date prior to 
the sunset date of its emergency rule, and committing to submit the 
permanent rule as a SIP revision to EPA by July 1, 2006.

I. Background

    EPA issued the NOX SIP Call (63 FR 57356, October 27, 
1998) to require 22 Eastern states and the District of Columbia to 
reduce specified amounts of one of the main precursors of ground-level 
ozone, NOX, in order to reduce interstate ozone transport. 
EPA found that the sources in these states emit NOX in 
amounts that contribute significantly to nonattainment of the 1-hour 
ozone national ambient air quality standard (NAAQS) in downwind states. 
In the NOX SIP Call, the amount of reductions required by 
states were calculated based on application of available, highly cost-
effective controls on source categories of NOX.

[[Page 61105]]

    The NOX SIP Call, including the Technical Amendments 
which addressed the 2007 electric generating units (EGU) budgets (64 FR 
26298, May 14, 1999 and 65 FR 11222, March 2, 2000), was challenged by 
a number of state, industry, and labor groups. A summary of the 
NOX SIP Call requirements, including details of the court 
decisions that were made in response to challenges to the rule and 
impacts of the court decisions on certain aspects of the rule may be 
found in EPA's rulemaking dated April 21, 2004 (69 FR 21604) entitled, 
``Interstate Ozone Transport: Response to Court Decisions on the 
NOX SIP Call, NOX SIP Call Technical Amendments, 
and Section 126 Rules.'' The relevant portions of the April 21, 2004 
rulemaking that affect West Virginia's obligations under the 
NOX SIP Call, and that pertain to the State's requirements 
for Phase II, are discussed in this document to provide background on 
the March 30, 2005 SIP revision submitted by the WVDEP.
    On March 3, 2000, the United States Court of Appeals for the 
District of Columbia Circuit (DC Circuit) issued its decision on the 
NOX SIP Call, Michigan v. EPA, 213 F.3rd 663 (DC Dir. 2000). 
While the DC Circuit ruled largely in favor of EPA in support of its 
requirements under the 1-hour ozone NAAQS, it also ruled, in part, 
against EPA on certain issues. The rulings against EPA included two 
areas of the NOX SIP Call that were remanded and vacated and 
two areas in which EPA was found to have failed to provide adequate 
notice of changes in the rule.
    In the latter case, the rulings included a failure to provide 
adequate notice of the change in the definition of EGU as applied to 
cogeneration (cogen) units that supply electricity to a utility power 
distribution system for sale in certain specified amounts, and a 
failure to provide adequate notice of the change in the control level 
EPA assumed for large stationary internal combustion (IC) engines. The 
portions of the NOX SIP Call that were upheld by the Court 
were termed ``Phase I'' of the rule. With the exception of the remand 
of the EGU growth factors used in the NOX SIP Call and the 
requirements for the 8-hour ozone NAAQS (which EPA stayed due to 
uncertainty created by the court rulings), those portions of the 
NOX SIP Call that had been remanded back to EPA were 
finalized in the April 21, 2004 rulemaking (69 FR 21604) and termed 
``Phase II'' of the rule.
    The April 21, 2004 rule finalized specific changes to the 
definition of EGUs as applied to cogen units, finalized the control 
levels assumed for large stationary IC engines in the NOX 
SIP Call, adjusted states' total budgets (as necessary) to reflect 
these changes, established a SIP submittal date of April 1, 2005 for 
states to address the Phase II portion of the budget, and set a 
compliance date of May 1, 2007 for all affected sources to meet Phase 
II. As a result of these changes, states that were not already meeting 
their total NOX SIP Call emission reduction obligations were 
required to submit a SIP revision by April 1, 2005 to reduce ozone 
season NOX emissions by an incremental amount equivalent to 
the reductions achieved by controlling IC engines to prescribed levels. 
The IC engines that comprise the subject states' Phase II inventory 
were compiled by EPA and termed the EPA's NOX SIP Call 
Engine Inventory (65 FR 1222, March 2, 2000). As finalized in the April 
21, 2005 rulemaking, the amount of the incremental reductions required 
was based upon the level of reductions that would occur if large 
natural gas-fired stationary IC engines were controlled to a level of 
82 percent, and large diesel and dual fuel stationary IC engines were 
controlled to a level of 90 percent.
    The change to the definition of cogen units did not have an impact 
on the Phase I budget previously established for West Virginia. 
Therefore, in order to meet its NOX SIP Call obligations, 
the State was required only to achieve the incremental reductions that 
EPA calculated based on controlling stationary IC engines to prescribed 
levels. As in Phase I of the NOX SIP Call, states have 
flexibility in how they achieve the incremental reductions required 
under Phase II. West Virginia chose to require the reductions from 
large IC engines, allowing creditable reductions on a facility-wide 
basis, and developed a rule largely based on EPA's model language for 
Phase II requirements.

II. Summary of SIP Revision

    On March 30, 2005, the State of West Virginia submitted a revision 
to its SIP pertaining to emission reductions to satisfy Phase II of the 
NOX SIP Call. The SIP revision consists of Emergency Rule 
45CSR1 entitled, ``Control and Reduction of Nitrogen Oxides from Non-
electric Generating Units as a Means to Mitigate Transport of Ozone 
Precursors,'' which amends West Virginia's existing rule 45CSR1 to 
include the Phase II requirements. The revision applies to owners or 
operators of large stationary IC engines in the State of West Virginia. 
A large IC engine is defined as an engine that emitted more than one 
ton of NOX per average ozone season day in 1995.
    In its March 30, 2005 submittal, West Virginia included an 
incremental budget demonstration that listed seven large natural gas-
fired IC engines that are subject to Phase II, consistent with EPA's 
NOX SIP Call Engine Inventory. Application of 82 percent 
control to these units for the projected 2007 base case resulted in an 
incremental reduction of 903 tons of NOX emissions. EPA has 
determined that an additional reduction of 903 tons of NOX 
satisfies all of West Virginia's remaining requirements under the 
NOX SIP Call, and that this amount appropriately adjusts the 
incremental reduction specified in the April 21, 2004 rulemaking.
    Emergency Rule 45 CSR1 contains revisions to West Virginia's 
existing NOX Budget Trading Program that enables the State 
to implement the additional requirements under Phase II of the 
NOX SIP Call. Sources in West Virginia that are subject to 
the new requirements must submit a compliance plan to WVDEP by May 1, 
2006, and reduce ozone season NOX emissions in the state by 
an additional 903 tons beginning May 1, 2007. The revised rule also 
includes the pertinent definitions associated with stationary IC 
engines, and also adds a new Section 90 which sets forth general 
provisions, applicability provisions, the required ozone season 
NOX emission reductions, requirements for compliance plans, 
and the monitoring, recordkeeping, and reporting requirements necessary 
to determine compliance with the required emission reductions from 
stationary IC engines. The rule also incorporates the monitoring and 
reporting revisions set forth in 40 CFR Part 97 to align it with 
modifications that had been made to 45 CFR Part 75.

III. Proposed Action

    EPA is proposing to grant conditional approval of West Virginia's 
March 30, 2005 SIP revision which consists of West Virginia's Emergency 
Rule 45CSR1 to meet Phase II of the NOX SIP Call. For West 
Virginia's Rule 45CSR1 to become fully approvable, the State of West 
Virginia must, in accordance with its August 15, 2005 commitment, 
fulfill the following conditions:
    (1) Adopt a permanent Rule 45CSR1 with an effective date prior to 
the sunset date of the emergency rule, and
    (2) Submit permanent rule 45CSR1 as a SIP revision to EPA by July 
1, 2006. Once West Virginia fulfills these conditions, EPA will conduct 
rulemaking to convert its conditional approval to a full approval. If 
the conditions are not fulfilled within the specified time frame, any 
final

[[Page 61106]]

conditional approval granted by EPA will convert to a disapproval. EPA 
is soliciting public comments on proposed action and issues discussed 
in this document. These comments will be considered before taking final 
action.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 Fed. Reg. 28355 (May 22, 
2001)). This action merely proposes to approve state law as meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this proposed 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 proposes to approve 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 (Pub. L. 104-4). This proposed 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 proposes to approve a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 (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. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed 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. 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 proposed rule to grant conditional approval of West Virginia 
Emergency Rule 45CSR1 to meet Phase II of the NOX SIP Call 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

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

    Dated: October 13, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-20986 Filed 10-19-05; 8:45 am]
BILLING CODE 6560--50--M