[Federal Register Volume 71, Number 153 (Wednesday, August 9, 2006)]
[Proposed Rules]
[Pages 45485-45487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12970]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0527; FRL-8206-9]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Amendments to Prevention of Significant Deterioration 
(PSD) 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 prevention of significant deterioration (PSD) 
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 nonattainment new 
source review (NSR) 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-2006-0527 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-2006-0527, 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-
2006-0527. 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 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, 
West Virginia 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 addressed 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, 413 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 14--Permits for Construction and 
Major Modification of Major Stationary Sources of Air Pollution for the 
Prevention of Significant Deterioration 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 51.166. 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 14, as set forth in the attached table, that 
pertain to ``Clean Units'' and

[[Page 45486]]

``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 to 45 CSR 14 in order 
to meet the minimum requirements of 40 CFR 51.166 and the Clean Air 
Act. It should be noted that West Virginia also submitted amendments to 
its nonattainment new source review (NSR) 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 
14--Permits for Construction and Major Modification of Major Stationary 
Sources of Air Pollution for the Prevention of Significant 
Deterioration (PSD)'' 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 14 that pertain to the Clean Unit and 
Pollution Control Project (PCP) provisions of 40 CFR 51.166. 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 14.19.8 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 (51.166(r)(6)) were 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 14 necessary to incorporate and implement Federal 
program revisions once EPA takes further action on the remand of 40 CFR 
51.166(r)(6).

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 51.166. As such, West Virginia has translated 
the Federal NSR requirements into the regulatory text of 45 CSR 14 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 14 to the Federal requirements of 40 CFR 51.166 can be found in the 
technical support document (TSD) prepared for this rulemaking.
Notable Differences in 45 CSR 14--Permits for Construction and Major 
Modification of Major Stationary Sources of Air Pollution for the 
Prevention of Significant Deterioration (PSD)
    1. West Virginia's definition for ``Actual Emissions'' at 45 CSR 
14-2.1 does not identify all of the defined NSR pollutants. However, 
West Virginia did incorporate a definition for ``Regulated NSR 
Pollutants,'' which, when read together with the definition for 
``Actual Emissions'', makes the regulation consistent with 40 CFR 
51.166(b)(21). Therefore, EPA finds the definition acceptable.
    2. The provisions for the general requirements for establishing 
PALs at 45 CSR 14-25.4(a)(2) indicates that all PAL permits shall meet 
the general public review procedures established at 45 CSR 14-17. 
Section 25 also identifies public participation procedures expressly 
for PALs at 45 CSR 25.5. While the identification of two public 
participation procedures for PALs may be confusing, the two procedures 
are not in conflict and satisfaction of either of the procedures meets 
the minimum requirements of 40 CFR 51.166(w)(5).
    3. In a change unrelated to the Federal NSR Reform efforts and to 
be consistent with 40 CFR 51.166(s)(2)(v), West Virginia added language 
to 45 CSR 14-14.d.3 that requires all modifications seeking to rely 
upon innovative technology as best available control technology to meet 
minimum public participation requirements. This change was necessary 
because public participation is a condition for using innovative 
technology, therefore, EPA finds the provision acceptable.

III. Proposed Action

    Based on the above analysis, EPA has determined that the amendments 
to West Virginia's prevention of significant deterioration (PSD) permit 
program at 45 CSR 14, 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

[[Page 45487]]

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 amendment to West Virginia's Prevention 
of Significant Deterioration (PSD) Construction 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, 
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. E6-12970 Filed 8-8-06; 8:45 am]
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