[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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