[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Notices]
[Pages 28433-28434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11826]


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ENVIRONMENTAL PROTECTION AGENCY

[D-WVA-2011-0001; FRL-9305-7]


Delegation of Authority to the State of West Virginia To 
Implement and Enforce Additional or Revised National Emission Standards 
for Hazardous Air Pollutants and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of delegation of authority.

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SUMMARY: On January 5, 2011, EPA sent West Virginia a letter 
acknowledging that West Virginia's delegation of authority to implement 
and enforce NESHAP and NSPS had been updated, as provided for under 
previously approved delegation mechanisms. To inform regulated 
facilities and the public of West Virginia's updated delegation of 
authority to implement and enforce NESHAP and NSPS, EPA is making 
available a copy of EPA's letter to West Virginia through this notice.

DATES: On January 5, 2011, EPA sent West Virginia a letter 
acknowledging that West Virginia's delegation of authority to implement 
and enforce NESHAP and NSPS had been updated.

ADDRESSES: Copies of documents pertaining 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 19103-2029. Copies of West 
Virginia's submittal are also available at the West Virginia Department 
of Environmental Protection, Division of Air Quality, 601 57th Street 
SE., Charleston, West Virginia 25304. Copies of West Virginia's notice 
to EPA that West Virginia has updated its incorporation by reference of 
federal NESHAP and NSPS, and of EPA's response, may also be found 
posted on EPA Region III's Web site at: http://www.epa.gov/reg3artd/airregulations/delegate/wvdelegation.htm.

FOR FURTHER INFORMATION CONTACT: Ray Chalmers, (215) 814-2061, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: West Virginia notified EPA that West 
Virginia has updated its incorporation by reference of federal NESHAP 
and NSPS to include many such standards, to the extent referenced in 40 
CFR Parts 60, 61 and 63, effective June 1, 2009. EPA responded by 
sending West Virginia a letter acknowledging that West Virginia now has 
the authority to implement and enforce the NESHAP and NSPS as specified 
by West Virginia in its notice to EPA, as provided for under the 
previously approved automatic delegation mechanisms. To inform 
regulated facilities and the public of West Virginia's updated 
delegation of authority to implement and enforce NESHAP and NSPS, EPA 
is making available a copy of EPA's letter to West Virginia through 
this notice. All notifications, applications, reports and other 
correspondence required pursuant to the newly delegated standards must 
be submitted to both the U.S. EPA Region III and to the West Virginia 
Department of Environmental Protection. A copy of EPA's letter to West 
Virginia follows:

John Benedict, Director, Division of Air Quality, West Virginia 
Department of Environmental Protection, 601 57th Street, Charleston, 
WV 25304.

    Dear Mr. Benedict: The Environmental Protection Agency (EPA) has 
previously delegated to the State of West Virginia (West Virginia) 
the authority to implement and enforce various federal National 
Emissions Standards for Hazardous Air Pollutants (NESHAP) and New 
Source Performance Standards (NSPS), which are found at 40 CFR

[[Page 28434]]

Parts 60, 61 and 63.\1\ In those actions EPA also delegated to West 
Virginia the authority to implement and enforce any future EPA 
NESHAP or NSPS on the condition that West Virginia legally adopt the 
future standards, make only allowed wording changes, and provide 
specified notice to EPA.
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    \1\ EPA has posted copies of these actions at: http://www.epa.gov/reg3artd/airregulations/delegate/wvdelegation.htm.
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    In a letter dated April 6, 2010, West Virginia informed the EPA 
that West Virginia had updated its incorporation by reference of 
federal NESHAP and NSPS to include many such standards, to the 
extent referenced in 40 CFR Parts 60, 61, and 63, effective June 1, 
2009. West Virginia noted that it understood that it was 
automatically delegated the authority to implement these standards. 
West Virginia committed to enforcing the standards in conformance 
with the terms of EPA's previous delegations of authority. West 
Virginia made only allowed wording changes.
    West Virginia provided copies of the revised West Virginia 
Legislative Rules which specify the NESHAP and NSPS which West 
Virginia has adopted by reference. These revised Legislative Rules 
are entitled 45 CSR 34--``Emission Standards for Hazardous Air 
Pollutants,'' and 45 CSR 16--``Standards of Performance for New 
Stationary Sources.'' These revised Rules have an effective date of 
June 1, 2010.
    Accordingly, EPA acknowledges that West Virginia now has the 
authority, as provided for under the terms of EPA's previous 
delegation actions, to implement and enforce the NESHAP and NSPS 
standards which West Virginia has adopted by reference in West 
Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, both 
effective on June 1, 2010.
    Please note that on December 19, 2008, in Sierra Club v. EPA,\2\ 
the United States Court of Appeals for the District of Columbia 
Circuit vacated certain provisions of the General Provisions of 40 
CFR Part 63 relating to exemptions for startup, shutdown, and 
malfunction (SSM). On October 16, 2009, the Court issued the mandate 
vacating these SSM exemption provisions, which are found at 40 CFR 
63.6(f)(1) and (h)(1).
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    \2\ Sierra Club v. EPA, 551 F.3rd 1019 (DC Cir. 2008).
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    Accordingly, EPA no longer allows sources the SSM exemption as 
provided for in the vacated provisions at 40 CFR 63.6(f)(1) and 
(h)(1), even though EPA has not yet formally removed the SSM 
exemption provisions from the General Provisions of 40 CFR Part 63. 
Because West Virginia incorporated 40 CFR Part 63 by reference, West 
Virginia should also no longer allow sources to use the former SSM 
exemption from the General Provisions of 40 CFR Part 63 due to the 
Court's ruling in Sierra Club vs. EPA.
    EPA appreciates West Virginia's continuing NESHAP and NSPS 
enforcement efforts, and also West Virginia's decision to take 
automatic delegation of additional and more recent NESHAP and NSPS 
by adopting them by reference.
    Sincerely,
Diana Esher,
Director, Air Protection Division.

    This notice acknowledges the update of West Virginia's delegation 
of authority to implement and enforce NESHAP and NSPS.

    Dated: April 26, 2011.
Diana Esher,
Director, Air Protection Division, Region III.
[FR Doc. 2011-11826 Filed 5-16-11; 8:45 am]
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