[Federal Register Volume 71, Number 153 (Wednesday, August 9, 2006)]
[Proposed Rules]
[Pages 45482-45485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12969]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0528; FRL-8206-8]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Amendments to Nonattainment New Source Review (NSR) Air 
Quality Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the West Virginia 
State Implementation Plan (SIP). The revision consists of amendments to 
West Virginia's existing Nonattainment New Source Review (NSR) 
preconstruction air quality permit program. This action is being taken 
under the Clean Air Act (CAA or the Act). In a separate action, EPA 
will address changes made by West Virginia to its prevention of 
significant deterioration (PSD) air quality permit program, also 
submitted on December 1, 2005.

DATES: Written comments must be received on or before September 8, 
2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0528 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2006-0528, David Campbell, Chief, Permits and 
Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0528. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, 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 www.regulations.gov

[[Page 45483]]

or e-mail. The www.regulations.gov Web site is 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 an e-mail comment directly to EPA without going through 
www.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 
www.regulations.gov index. 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 www.regulations.gov 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, 601 57th Street, SE., Charleston, 
WV 25304.

FOR FURTHER INFORMATION CONTACT: Rosemarie Nino, (215) 814-3377, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The supplementary information is arranged as 
follows:

I. Background
II. Program Review
    A. What is being address in this document?
    B. What are the program changes that EPA is approving?
III. Proposed Action
IV. Statutory and Executive Order Reviews.

I. Background

    On December 31, 2002, the U.S. Environmental Protection Agency 
(EPA) published revisions to the Federal prevention of significant 
deterioration (PSD) and nonattainment new source review (NSR) 
regulations (67 FR 80186). These revisions are commonly referred to as 
EPA's ``NSR Reform'' regulations and became effective on March 3, 2003. 
These regulatory revisions included provisions for baseline emissions 
determinations, actual-to-future actual methodology, Plantwide 
Applicability Limits (PALs), Clean Units, and Pollution Control 
Projects (PCPs). The December 2002 rulemaking action required State and 
local permitting authorities to include the NSR Reform measures as 
minimum program elements in their State implementation plans (SIP) and 
to submit these revisions to EPA by January 2, 2006.
    The United States Court of Appeals for the District of Columbia 
Circuit ruled in New York v. EPA, 45 F.3d 3 (D.C. Cir. June 24, 2005) 
that EPA lacked the authority to promulgate the Clean Unit provisions, 
and the Court requested that EPA vacate that portion of the 2002 
Federal regulation, codified at 40 CFR 52.21(x), as contrary to the 
statute. Also, the Court determined EPA lacked the authority to create 
PCP exceptions from NSR and vacated those parts of the 1991 and 2002 
rules, codified at 40 CFR 52.21(b)(32) and 52.21(z), as contrary to the 
statute.
    On December 1, 2005, EPA Region III received a revision to the West 
Virginia State Implementation Plan (SIP) from the West Virginia 
Department of Environmental Protection (WVDEP). This SIP revision 
consists of Legislative Rule 45 CSR 19--Permits for Construction and 
Major Modification of Major Stationary Sources of Air Pollution Which 
Cause or Contribute to Nonattainment adopted by the State of West 
Virginia on April 8, 2005 and effective June 1, 2005. The State adopted 
the regulation in order to meet the relevant plan requirements of 40 
CFR 51.165. On December 22, 2005, WVDEP provided supplemental materials 
consisting of a letter and an attached one-page table requesting that 
EPA exclude from its December 1, 2005 request for SIP approval the 
provisions of 45 CSR 19, as set forth in the attached table, that 
pertain to ``Clean Units'' and ``Pollution Control Project'' in order 
to ensure that their federally-approved regulations are consistent with 
the United States Court of Appeals for the District of Columbia 
Circuit's June 24, 2005 ruling.
    The WVDEP is seeking approval of amendments in 45 CSR 19 in order 
to meet the minimum requirements of 40 CFR 51.165 and the Clean Air 
Act. It should be noted that West Virginia also submitted amendments to 
its prevention of significant deterioration (PSD) regulations on 
December 1, 2005. The EPA will address those amendments in a separate 
rulemaking action.

II. Program Review

A. What is being addressed in this document?

    1. As stated in the December 31, 2002 ``NSR Reform'' rulemaking, 
State and local permitting agencies were required to adopt and submit 
revisions to their part 51 permitting programs, implementing the 
minimum program elements of that rulemaking no later then January 2, 
2006 (67 FR 80240). With this submittal, West Virginia requests 
approval of program revisions to satisfy this requirement.
    2. On December 1, 2005, WVDEP submitted regulatory revisions to EPA 
for approval. The submitted West Virginia Rule was entitled, ``45 CSR 
19--Permits for Construction and Major Modification of Major Stationary 
Sources of Air Pollution Which Cause or Contribute to Nonattainment'' 
and was adopted April 8, 2005 and effective June 1, 2005.
    3. By letter dated December 22, 2005, WVDEP requested that EPA 
exclude from its December 1, 2005 request for approval into the SIP 
those provisions of 45 CSR 19 that pertain to the Clean Unit and 
Pollution Control Project (PCP) provisions of 40 CFR 51.165. The 
specific provisions to be excluded were set forth in a table attached 
to the letter. The WVDEP made this request in order for its SIP to be 
consistent with the United States Court of Appeals for the District of 
Columbia Circuit June 24, 2005 ruling which vacated those provisions of 
the Federal rules. West Virginia also asked that EPA not act upon the 
provisions of 45 CSR 19.17.4 pertaining to the recordkeeping and 
reporting requirements for sources that elect to use the actual-to-
projected actual emission test and where there is a ``reasonable 
possibility'' that a project may result in a significant net emissions 
increase. The ``reasonable possibility'' clause of the corresponding 
provisions of the Federal rules (51.165(a)(6)) was remanded to EPA in 
the June 24, 2005 ruling mentioned above. West Virginia has instructed 
EPA to not consider this clause as part of this SIP revision request. 
In its December 22, 2005 letter, WVDEP stated its intent to make any 
revisions to 45 CSR 19 necessary to incorporate and implement Federal 
program revisions once EPA takes further action on the remand of 40 CFR 
51.165(a)(6).

[[Page 45484]]

B. What are the program changes that EPA is approving?

    In its December 2002 regulatory action, EPA dramatically changed 
many aspects of the regulations governing the PSD and nonattainment NSR 
programs (together, as ``NSR''). These changes affected the NSR 
applicability requirements to allow sources more flexibility to pursue 
modifications of their facilities in order to respond to changes in the 
marketplace and to plan for plant improvements. The goals of the 
changes were to provide greater regulatory certainty, administrative 
flexibility, and permit streamlining, while ensuring the current level 
of environmental protection, or more, from the existing program.
    West Virginia has fully embraced EPA's NSR reform regulatory 
revisions and sought to develop a regulatory program that closely 
reflects the Federal NSR regulations and conforms to the minimum 
requirements of 40 CFR 51.165. As such, West Virginia has translated 
the Federal NSR requirements into the regulatory text of 45 CSR 19 in a 
manner that is consistent with State regulatory development procedures. 
Since West Virginia has sought to incorporate the majority of the 
Federal regulatory language into its regulations, the following is an 
examination of only those few areas in which the State altered the 
Federal regulatory text or approach. A more detailed comparison of 45 
CSR 19 to the Federal requirements of 40 CFR 51.165 can be found in the 
technical support document (TSD) prepared for this rulemaking.
Notable Differences in 45 CSR 19--Permits for Construction and Major 
Modification of Major Stationary Sources of Air Pollution Which Cause 
or Contribute to Nonattainment:
    1. In the provisions for setting the PAL level at 45 CSR 19-23.6, 
the reference to the ``baseline actual emissions'' erroneously cites to 
Section 2.52 of the rules for purposes of defining the term ``baseline 
actual emissions.'' The appropriate citation for this term is Section 
2.9. This typographical error will not adversely affect implementation 
of the regulations since the text of 45 CSR 19-23.6 directly identifies 
``baseline actual emissions'' and that term is only defined at Section 
2.9 and the incorrect citation to Section 2.52 does not confuse or 
otherwise alter the meaning of 45 CSR 19-23.6.
    2. In a change unrelated to the Federal NSR Reform efforts, West 
Virginia changed the definition for ``Offset'' at 45 CSR 19-2.41 to 
read ``* * * provided that the amount of reduction in emissions at the 
existing source (or an emission unit with such sources), is greater on 
tons per year basis.'' The previous definition defined offsets in terms 
of pounds per hours and/or tons per year basis. The regulation is now 
consistent with the existing Federal requirement because the 
determination of necessary offsets must be based on tons per year 
reductions. EPA approves this change.
    3. In another change unrelated to the Federal NSR Reform efforts, 
West Virginia changed Table 19A to include ``Subpart I'' ozone 
nonattainment areas along with marginal and moderate nonattainment 
areas for purposes of defining significant net emissions increase 
levels for purposes of NSR applicability. This change is acceptable.

III. Proposed Action

    Based on the above analysis, EPA has determined that the amendments 
to West Virginia's nonattainment new source review (NSR) permit 
programs at 45 CSR 19, as submitted on December 1, 2005 and 
supplemented on December 22, 2005, meet the minimum requirements of 40 
CFR 51.166 and the Clean Air Act. This amendment is approvable as a 
revision to the West Virginia SIP.

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 FR 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, approving amendments to West Virginia's 
Nonattainment New Source Review (NSR) Permit Program, 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, Carbon monoxide,

[[Page 45485]]

Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: July 24, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E6-12969 Filed 8-8-06; 8:45 am]
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