Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration

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. The intended effect of this action is to approve the inclusion of nitrogen oxides (NO_x) as a precursor to ozone in the State of West Virginia for permits for construction and major modification of major stationary sources of air pollution for the prevention of significant deterioration (PSD) areas in West Virginia. This action will also add the Federally equivalent provisions to the rules for the PSD program as they pertain to “reasonable possibility” and delete certain references to pollution control projects (PCPs) and clean units (CUs) to make the West Virginia PSD program consistent with the Federal PSD program. This action is being taken under the Clean Air Act (CAA).

DATES:

Effective Date. This final rule is effective on June 27, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2009-0876. All documents in the docket are listed in the www.regulations.gov website.

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 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, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT:

Sharon McCauley, (215) 814-3376, or by e-mail at mccauley.sharon@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On December 17, 2010 (75 FR 78949), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. The NPR proposed approval of the inclusion of NO_X as a precursor to ozone for permits for construction and major modification of major stationary sources of air pollution for PSD. This action will replace the current SIP-approved version of 45CSR14, entitled, Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration. The formal SIP revision was submitted by West Virginia on July 20, 2009.

II. Summary of SIP Revision

This SIP revision consists of replacing the current version of 45CSR14 approved by EPA on December 4, 2006 (71 FR 64470) with the regulations which were made effective as a legislative rule in West Virginia on June 1, 2009 and submitted to EPA on July 20, 2009. This revision governs the permitting for the construction of new major stationary sources and the significant modification of existing major stationary sources of air pollutants in areas designated attainment or non-classifiable for the National Ambient Air Quality Standards (NAAQS).

This approval of West Virginia's SIP submission addresses changes needed to ensure consistency with the CAA's part C PSD permit program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 2008 Federal Register action entitled, “Completeness Findings for Section 110(a) State implementation Plans for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)” (73 FR 16205). EPA's approval of this SIP submission addresses West Virginia's compliance with the portion of CAA Section 110(a)(2)(C) & (J) relating to the Part C permit program for the 1997 Ozone NAAQS, because this action would approve regulating NO_X as a precursor to ozone in West Virginia's SIP in accordance with the Federal Register action dated November 29, 2005 (70 FR 71612) that finalized NO_X as a precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21.

Additionally, in the course of taking action upon the previously approved NSR Reform SIP revision dated December 4, 2006 (71 FR 64470), West Virginia had requested that EPA not act upon certain provisions of 45CSR14.19.8 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. Based upon revisions to 45CSR14.19.8, EPA is now approving 45CSR14.19.8 in its entirety into the West Virginia SIP with this action as regulatory corrections have been made to the State's regulations.

The references to pollution control projects (PCPs) and clean units (CUs) were deleted in the West Virginia regulations in accordance with the Federal rulemaking action dated June 13, 2007 (72 FR 32526). These State references to PCPs and CUs are not a part of the currently approved SIP and are, therefore, just being corrected in West Virginia's regulations; as a result of correctly deleting their references, West Virginia's regulations will be consistent with the Federally enforceable provisions.

EPA has determined that the current amendments to West Virginia's PSD permit program at 45CSR14, as submitted on July 20, 2009, meet the minimum requirements of 40 CFR 51.166 and the Clean Air Act. This action will approve these revisions to the West Virginia SIP.

III. Final Action

EPA is approving the West Virginia SIP revision submitted on July 20, 2009 which amends 45CSR14 as a revision to the West Virginia SIP. EPA is also making a determination that West Virginia's SIP meets the requirements of CAA Sections 110(a)(2)(C) and (J) relating to the part C permit program for the 1997 Ozone NAAQS. EPA had solicited public comments on these issues discussed in this document in the prior proposed Federal Register action dated December 17, 2010 (75 FR 78949). No adverse comments were received.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, 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 CAA. 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 CAA; 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 July 26, 2011. 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 include NO_X as a precursor to ozone and the provisions for “reasonable possibility” in West Virginia for permits for construction and major modification of major stationary sources of air pollution for the prevention of significant deterioration 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

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 revising the entries for [45 CSR] Series 14 to read as follows: