Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Clean Air Interstate Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of West Virginia. This revision establishes budget trading programs for nitrogen oxides (NOX) annual, NOx ozone season, and sulfur dioxides (SO₂) annual emissions to address the requirements of EPA's Clean Air Interstate Rule (CAIR), and recodifies and revises provisions pertaining to internal combustion engines and cement kilns that are subject to the NOX SIP Call. West Virginia will meet its CAIR requirements by participating in the EPA-administered regional cap-and-trade program for NOX annual, NOX ozone season, and SO₂ annual emissions. EPA is determining that the SIP revision fully implements the CAIR requirements for West Virginia. Although the D.C. Circuit found CAIR to be flawed, the rule was remanded without vacatur and thus remains in place. Thus, EPA is continuing to take action on CAIR SIPs as appropriate. CAIR, as promulgated, requires States to reduce emissions of SO₂ and NOX that significantly contribute to, or interfere with maintenance of, the national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any downwind State. CAIR establishes budgets for SO₂ and NO_X for States that contribute significantly to nonattainment in downwind States and requires the significantly contributing States to submit SIP revisions that implement these budgets. States have the flexibility to choose which control measures to adopt to achieve the budgets, including participation in EPA-administered cap-and-trade programs addressing SO₂, NO_X annual, and NO_X ozone season emissions. In the SIP revision that EPA is approving, West Virginia will meet CAIR requirements by participating in these cap-and-trade programs. EPA is approving the SIP revision, as interpreted and clarified herein, as fully implementing the CAIR requirements for West Virginia. Consequently, this action will also cause the CAIR Federal Implementation Plans (CAIR FIPs) concerning SO₂, NO_X annual, and NO_X ozone season emissions by West Virginia sources to be automatically withdrawn.

DATES:

Effective Date: The final rule is effective on August 4, 2009.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2009-0033. 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, 601 57th Street, SE., Charleston, WV 25304.

FOR FURTHER INFORMATION CONTACT:

Marilyn Powers, (215) 814-2308, or by e-mail at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Did EPA Propose?

II. Summary of West Virginia SIP Revision

III. Final Action

IV. What Is the Effective Date?

V. Statutory and Executive Order Reviews

I. What Action Did EPA Propose?

On June 11, 2009 (74 FR 27731), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. The NPR proposed approval of a revision to the West Virginia SIP that addresses EPA's CAIR requirements and recodifies and revises provisions pertaining to internal combustion engines and cement kilns that are subject to the NOX SIP Call. The formal SIP revision was submitted by West Virginia on April 22, 2008.

II. Summary of West Virginia SIP Revision

On April 22, 2008, the West Virginia Department of Environmental Protection (WVDEP) submitted a full CAIR SIP revision to meet the requirements of CAIR, which was promulgated on May 12, 2005 (70 FR 25162), and subsequently revised on April 28, 2006, and December 13, 2006. The SIP revision is comprised of new regulations as follows: 45CSR39—NOX Annual Trading Program; 45CSR40—NOx Ozone Season Trading Program; and 40CSR41—SO₂ Annual Trading Program. The regulations address all the requirements of the part 96 model rules set forth in the May 12, 2005 CAIR rulemaking.

On June 11, 2009 (74 FR 27731), EPA published a notice of proposed rulemaking (NPR) to approve West Virginia's CAIR SIP revision. A detailed discussion of the CAIR requirements, the CAIR history (including the CAIR remand), West Virginia's CAIR submittal, and EPA's rationale for approval of West Virginia's CAIR SIP revision may be found in the NPR and will not be repeated here. The NPR also includes a discussion of the recodification and revisions pertaining to internal combustion engines and cement kilns that are subject to the NOX SIP Call.

On June 11, 2009, EPA received a comment from the West Virginia Department of Environmental Protection noting that the amount of Compliance Supplement Pool allowances in the NPR was incorrect. This comment was addressed by a correction notice published on July 6, 2009 (74 FR 31904).

III. Final Action

EPA is approving West Virginia's CAIR SIP revision submitted on April 22, 2008. Under the SIP revision, West Virginia will participate in the EPA-administered cap-and-trade programs for NOX annual, NOX ozone season, and SO₂ annual emissions. The SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO_X annual and NO_X ozone season emissions, and 40 CFR 51.124(o), with regard to SO₂ emissions. As a consequence of the SIP approval, the CAIR FIPs for West Virginia are automatically withdrawn, in accordance with the automatic withdrawal provisions of EPA's November 2, 2007 rulemaking (72 FR 62338). The automatic withdrawal is reflected in the rule text that accompanies this notice and deletes and reserves the provisions in Part 52 that establish the CAIR FIPs for West Virginia sources. EPA is also approving the recodification and revisions to West Virginia provisions pertaining to internal combustion engines and cement kilns.

IV. What Is the Effective Date?

EPA finds that there is good cause for this approval to become effective upon publication because a delayed effective date is unnecessary due to the nature of the approval, which allows the State, as indicated in the NPR for this rulemaking, to include its non-electric generating units, implement its allowance allocations and remove the opt in provisions of the FIP. The expedited effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rule actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 5 U.S.C. 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.”

CAIR SIP approvals relieve states and CAIR sources within states from being subject to provisions in the CAIR FIPs that otherwise would apply to them, allowing states to implement CAIR based on their SIP-approved State rule. The relief from these obligations is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, West Virginia's relief from these obligations provides good cause to make this rule effective immediately upon publication, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rule relieves obligations rather than imposes obligations, affected parties, such as the State of West Virginia and CAIR sources within the State, do not need time to adjust and prepare before the rule takes effect.

V. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action 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 October 5, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 to approve West Virginia's CAIR rules 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
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart XX—West Virginia

2. In § 52.2520, the table in paragraph (c) is amended by:

a. Adding entries for Sections 45-39-1 through 45-39-8, 45-39-10 through 45-39-15, 45-39-20 through 45-39-24, 45-39-43, 45-39-51 through 45-39-57, 45-39-60 through 45-39-62, and 45-39-70 through 45-39-75, 45-39-90.

b. Revising the entries for 45-39-40, 45-39-41, and 45-39-42.

c. Adding entries for 45-40-1 through 45-40-8, 45-40-10 through 45-40-15, 45-40-20 through 45-40-24, 45-40-43, 45-40-51 through 45-40-57, 45-40-60 through 45-40-62, 45-40-70 through 45-40-75, and 45-40-90 through 45-40-110.

d. Revising the entries for 45-40-40, 45-40-41, and 45-40-42.

e. Adding entries at the end of the table for 45-41-1 through 45-41-8, 45-41-10 through 45-41-15, 45-41-20 through 45-41-24, 45-41-51 through 45-41-57, 45-41-60 through 45-41-62, 45-41-70 through 45-41-75, and 45-41-90.

The amendment reads as follows:

3. Section 52.2540 is removed and reserved.

4. Section 52.2541 is removed and reserved.