[Federal Register Volume 71, Number 7 (Wednesday, January 11, 2006)]
[Rules and Regulations]
[Pages 1696-1697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-196]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-WV-0002; FRL-8020-4]


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: Final rule.

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SUMMARY: EPA is granting conditional approval of a State Implementation 
Plan (SIP) revision submitted by the State of West Virginia. This 
revision establishes and requires NOX emission reductions 
from large, stationary internal combustion engines in the State to meet 
Phase II of the NOX SIP Call. Because the revision was 
adopted by West Virginia under its emergency rules provisions and has a 
sunset date, this approval is conditioned on West Virginia Department 
of Environmental Protection (WVDEP) adopting a permanent rule with an 
effective date prior to the sunset date of the emergency rule, and 
submitting the permanent rule as a SIP revision to EPA by July 1, 2006. 
WVDEP is in the process of adopting its permanent version of the rule 
and has submitted a written commitment to EPA stating it will meet all 
of these conditions. The intended effect of this action is to grant 
conditional approval of West Virginia's rule to meet its remaining 
emission reduction obligations under the NOX SIP Call.

DATES: This final rule is effective on February 10, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2005-WV-0002. All documents in the docket are listed 
in the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 through http://www.regulations.gov or in hard copy 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. 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:

I. Background

    On October 20, 2005 (70 FR 61104), EPA published a notice of 
proposed rulemaking (NPR) for the State of West Virginia. The NPR 
proposed to grant conditional approval of revisions to West Virginia 
emergency rule 45CSR1 titled Control and Reduction of Nitrogen Oxides 
from Non-Electric Generating Units as a Means to Mitigate Transport of 
Ozone Precursors. The formal SIP revision was submitted by WVDEP on 
March 31, 2005 (inadvertently noted in the NPR as being submitted on 
March 30, 2005).

II. Summary of SIP Revision

    West Virginia's March 31, 2005 SIP submittal requires large, 
stationary internal combustion engines in the State to reduce 
NOX emissions by a total of 903 tons for the 2007 ozone 
season and beyond, beginning on May 1, 2007. Sources in West Virginia 
that are subject to the new requirements must submit a compliance plan 
to WVDEP by May 1, 2006.

[[Page 1697]]

    Other specific requirements of the SIP revision and the rationale 
for EPA's action to grant conditional approval are explained in the NPR 
and will not be restated here. No public comments were received on the 
NPR.

III. Final Action

    EPA is granting conditional approval of West Virginia's March 31, 
2005 SIP revision consisting of West Virginia emergency rule 45CSR1. 
For West Virginia's emergency rule 45CSR1 to become fully approvable, 
the State must, in accordance with its August 15, 2005 commitment, 
fulfill the following conditions:
    (1) Adopt a permanent rule that corresponds to emergency rule 
45CSR1, but with an effective date prior to the sunset date of the 
emergency rule, and
    (2) Submit the permanent rule 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 conditional approval granted by EPA will convert to a 
disapproval.

IV. 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 (Pub. L. 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 
requirement, 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 must be filed in the United States Court 
of Appeals for the appropriate circuit by March 13, 2006. 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 granting conditional approval of West 
Virginia's SIP revision to meet Phase II of the NOX SIP Call 
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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

    Dated: December 23, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

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40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart XX--West Virginia

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2. Section 52.2522 is amended by adding paragraph (i) to read as 
follows:


Sec.  52.2522  Approval status.

* * * * *
    (i) EPA is granting conditional approval of West Virginia's March 
31, 2005 SIP revision consisting of West Virginia emergency rule 
45CSR1. For West Virginia's emergency rule 45CSR1 to become fully 
approvable, the State must, in accordance with its August 15, 2005 
commitment, fulfill the following conditions:
    (1) Adopt a permanent rule that corresponds to emergency rule 
45CSR1, but with an effective date prior to the sunset date of the 
emergency rule, and
    (2) Submit the permanent rule as a SIP revision to EPA by July 1, 
2006.

[FR Doc. 06-196 Filed 1-10-06; 8:45 am]
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