[Federal Register Volume 72, Number 242 (Tuesday, December 18, 2007)]
[Rules and Regulations]
[Pages 71576-71579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24367]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 97
[EPA-R03-OAR-2007-0448; FRL-8506-4]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Clean Air Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a revision to the West Virginia State
Implementation Plan (SIP) submitted on June 8, 2007. This revision
incorporates provisions related to the implementation of EPA's Clean
Air Interstate Rule (CAIR), promulgated on May 12, 2005 and
subsequently revised on April 28, 2006 and December 13, 2006, and the
CAIR Federal Implementation Plan (CAIR FIP) concerning sulfur dioxide
(SO2), nitrogen oxides (NOX) annual, and
NOX ozone season emissions for the State of West Virginia,
promulgated on April 28, 2006 and subsequently revised on December 13,
2006. West Virginia is subject to the CAIR FIP that implements the CAIR
requirements by requiring certain EGUs to participate in the EPA-
administered Federal CAIR SO2, NOX annual, and
NOX ozone season cap-and-trade programs. In accordance with
the Clean Air Act, EPA is approving this West Virginia SIP revision as
an abbreviated SIP revision which addresses the methodology to be used
to allocate annual and ozone season NOX allowances under the
CAIR FIPs. In this action, EPA is not making any changes to the CAIR
FIP, but is amending the appropriate appendices in the CAIR FIP trading
rules simply to note that approval.
EFFECTIVE DATE: The final rule is effective on December 18, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2007-0448. All documents in the electronic docket
are listed in the http://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 http://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: Marilyn Powers, (215) 814-2308 or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 1, 2006, West Virginia submitted a full SIP revision to
meet the requirements of CAIR as promulgated on May 12, 2005. The SIP
revision is comprised of three regulations: 45CSR39 (NOX
annual trading program); 45CSR40 (NOX ozone season trading
program); and 45CSR41 (SO2 annual trading program). The
regulations adopted the 40 CFR part 96 model rules as set forth in the
May 12, 2005 rulemaking, however, because revisions to 40 CFR part 96
were finalized after the State had started its rulemaking process, did
not include the changes to the model rules that were made as part of
the April 28, 2006 CAIR FIP. Consistent with the provisions of the
CAIR, West Virginia submitted a letter on June 8, 2007, requesting that
portions of its June 1, 2006 SIP revision be considered as an
abbreviated SIP revision. The June 8, 2007 letter designated the
NOX allocation methodology provisions applicable to EGUs
under the CAIR FIP and originally submitted as part of its June 1, 2006
CAIR SIP revision as replacing the corresponding provisions of the CAIR
FIPs. Consistent with this request, EPA is treating the following
provisions of West Virginia's CAIR rules an abbreviated SIP revision:
Sec. 45-39-40, 45-39-41, and 45-39-42 ; and Sec. Sec. 45-40-40, 45-
40-41, and 45-40-42, except for paragraphs 40.3, 42.2.c, 42.2.d,
42.2.e, 42.3.a.2, and 42.4.b. The NOX allowance allocation
methodology in these provisions of West Virginia's June 1, 2006 SIP
revision is consistent with the methodology in part 96 and the FIP.
On September 13, 2007 (72 FR 52289), EPA published a direct final
rulemaking notice (DFRN) to approve the June 8, 2007 revision to West
Virginia's SIP. The DFRN approved, as an abbreviated SIP, West
Virginia's methodology for allocating NOX allowances for the
NOX annual and NOX ozone season trading programs,
which will be used to allocate NOX allowances to sources in
West Virginia, instead of the federal allocation methodology otherwise
provided in the FIP. A detailed discussion of the CAIR requirements,
West Virginia's CAIR submittals, and EPA's rationale for approval of
the West Virginia's abbreviated SIP may be found in the DFRN and will
not be repeated here. In the DFRN, EPA stated that if adverse comment
was received, it would publish a timely withdrawal in the Federal
Register informing the public that the rule would not take effect. On
October 12, 2007, EPA received an adverse comment from the State of
Connecticut Department of Environmental Protection. EPA therefore
withdrew the DFRN on November 7, 2007 (72 FR 62788).
II. Public Comments and EPA Responses
Comment: On October 12, 2007, the Connecticut Department of
Environmental Protection (CTDEP) submitted adverse comments on EPA's
DFR notice approving West Virginia's abbreviated CAIR SIP. CTDEP
encourages EPA to approve state programs adopted to meet the emission
reduction requirements of CAIR. However, it argues that before
approving state CAIR plans, EPA should evaluate individually and in the
aggregate each state's clean air programs. They argue such evaluation
is necessary to ensure that each state's emissions do not significantly
contribute to downwind nonattainment. CTDEP asserts its belief that the
CAIR program does not ensure that the CAA section 110(a)(2)(D)(i)
requirements to prohibit transported emissions that significantly
contribute to nonattainment in Connecticut and other states will be
met. CTDEP expresses concern that EPA is determining through this and
other similar rulemakings that CAIR programs are sufficient to meet
States' section 110(a)(2)(D)(i) obligations. CTDEP asserts, based on
EPA and State modeling for CAIR, that the levels of transported
pollution remaining after CAIR implementation are large enough that,
even with local controls, it may be difficult for Connecticut to attain
the 8-hour ozone NAAQS by 2010. Finally, CTDEP questions EPA's
determination that highly cost effective controls are adequate to
address States' section 110(a)(2)(D)(i) obligations as compared to
``reasonable cost'' controls that could be achieved to effect more
stringent NOX reductions.
[[Page 71577]]
Response: EPA does not agree that it is appropriate or necessary
for EPA to conduct additional analysis before approving the West
Virginia abbreviated CAIR SIP for NOX allowances and
NOX allowance methodology. West Virginia has chosen an
abbreviated SIP for NOX allowances and NOX
allocation methodology, one of four SIP elements for which states may
request an abbreviated SIP. With an abbreviated SIP, the CAIR FIP
remains in place for West Virginia. EPA's proposed approval of West
Virginia's abbreviated SIP would therefore only have the effect of
replacing, as provided for in the CAIR FIP, the corresponding FIP
provisions with the State's preferred allocations and methodology. EPA
has evaluated this abbreviated SIP revision and determined that it
complies with the requirements of the CAIR FIP provisions regarding
abbreviated SIPs. CTDEP does not challenge this determination. Thus,
CTDEP's comments do not specifically pertain to any aspect of EPA's
proposed action to approve the West Virginia CAIR SIP revision. Rather,
the comments appear to be directed broadly at EPA's decisions with
regard to states' section 110(a)(2)(D)(i) obligations. These decisions
were made by EPA in the context of the CAIR rulemaking, which was
promulgated on May 12, 2005 (70 FR 25162), not in the proposed action
to approve West Virginia's abbreviated CAIR SIP revision. Therefore,
CTDEP's comments are not relevant to the proposed action. CTDEP had
ample opportunity to submit comments both during the comment period for
the proposed CAIR rulemaking of January 30, 2004 (69 FR 4566) and
during the comment period for the proposed CAIR FIP of August 24, 2005
(70 FR 49708). EPA's proposal to approve West Virginia's abbreviated
CAIR SIP did not reopen either the CAIR or CAIR FIP rulemakings.
Consequently, CTDEP's comments are not relevant to this rulemaking, or
timely with respect to the CAIR and CAIR FIP rulemakings. Thus, EPA
does not believe it is necessary to conduct additional analysis on
whether West Virginia or any other state satisfies the requirements of
110(a)(2)(D)(i) before approving the West Virginia's abbreviated CAIR
SIP submission.
III. Final Action
EPA is approving West Virginia's abbreviated CAIR SIP revision
submitted on June 8, 2007, as discussed above. West Virginia is subject
to the CAIR FIPs, which require participation in the EPA-administered
SO2, NOX annual, and NOX ozone season
cap-and-trade programs. Under this abbreviated SIP revision and,
consistent with the flexibility given to States in the FIPs, West
Virginia has adopted provisions for allocating allowances under the
CAIR FIP NOX annual and ozone season trading programs. As
provided for in the CAIR FIPs, these provisions in the abbreviated SIP
revision will replace or supplement the corresponding provisions of the
CAIR FIPs in West Virginia. The abbreviated SIP revision meets the
applicable requirements in 40 CFR 51.123(p) and (ee), with regard to
NOX annual and NOX ozone season emissions. In
this final action, EPA is not making any changes to the CAIR FIP, but
is amending the appropriate appendices in the CAIR FIP trading rules
simply to note approval of West Virginia's abbreviated CAIR SIP.
EPA is today taking action only on this request for an abbreviated
SIP revision and not the full CAIR SIP revision originally submitted,
which will be the subject of a separate rulemaking action. In the June
8, 2007 letter, West Virginia states that it will revise and promulgate
its CAIR rules 45CSR39, 45CSR40, and 45CSR41 to incorporate the
revisions to part 96 and indicates that it plans to submit an amended
CAIR SIP revision to EPA in 2008.
IV. Effective Date
EPA finds that there is good cause for this approval to become
effective on the date of publication because a delayed effective date
is unnecessary due to the nature of the approval, which allows the
Commonwealth to make allocations under its CAIR rules. 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 allowance allocation provisions in the CAIR FIPs
that otherwise would apply to it, allowing States to make their own
allowance allocations 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).
V. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this 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 approves 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 rule also does not
have tribal implications because it will 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).
This action also does not have Federalism implications because it does
not 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).
This action merely approves 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 rule
also is not subject to Executive Order 13045 (Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it approves a state rule implementing a Federal
standard. 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
[[Page 71578]]
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. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule 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. This rule 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 February 19, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 abbreviated CAIR
SIP revision may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects
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 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen oxides,
Ozone, Reporting and recordkeeping requirements.
Dated: December 6, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
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40 CFR parts 52 and 97 are amended as follows:
PART 52--[AMENDED]
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1. The authority citation for 40 CFR part 52 continues to read as
follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
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2. Section 52.2520 is amended as follows:
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a. The table in paragraph (c) by adding entries for 45 CSR 39 and 45
CSR 40 at the end of the table.
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b. The table in paragraph (e) by adding the entry for Article 3,
Chapter 64 of the Code of West Virginia at the end of the table.
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the West Virginia Sip
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State Additional explanation/
State citation [Chapter 16-20 Title/subject effective EPA approval date citation at 40 CFR
or 45 CSR] date Sec. 52.2565
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* * * * * * *
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[45 CSR] Series 39 Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine
Particulate Matter and Nitrogen Ozides
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Section 45-39-40............... CAIR NOX Annual Trading 5/1/06 12/18/07 [Insert Only Phase I (2009-
Budget. page number 2014).
where the
document begins].
Section 45-39-41............... Timing Requirements for 5/1/06 12/18/07 [Insert Only Phase I (2009-
CAIR NOX Annual page number 2014).
Allowance Allocations. where the
document begins].
Section 45-39-42............... CAIR NOX Annual 5/1/06 12/18/07 [Insert Only for Phase I (2009-
Allowance Allocations. page number 2014).
where the
document begins].
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[45 CSR] Series 40 Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport of Ozone
and Nitrogen Oxides
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Section 45-40-40............... CAIR NOX Ozone Season 5/1/06 12/18/07 [Insert 1. Except for
Trading Budget. page number subsection 40.3, and
where the non-EGUs in
document begins]. subsection 40.1 table
2. Only Phase I (2009-
2014).
Section 45-40-41............... Timing Requirements for 5/1/06 12/18/07 [Insert Only Phase I (2009-
CAIR NOX Ozone Season page number 2014).
Allowance Allocations. where the
document begins].
[[Page 71579]]
Section 45-40-42............... CAIR NOX Ozone Season 5/1/06 12/18/07 [Insert 1. Except for
Allowance Allocations. page number subsections 42.2.d,
where the 42.2.e, 42.3.a.2, and
document begins]. 42.4.b.
2. Only Phase I (2009-
2014).
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* * * * *
(e) * * *
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State
Name of non-regulatory SIP Applicable submittal EPA approval date Additional explanation
revision geographic area date
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* * * * * * *
Article 3, Chapter 64 of the Statewide.......... 5/1/06 12/18/07 [Insert Effective date of March
Code of West Virginia, 1931. page number where 11, 2006.
the document
begins].
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PART 97--[AMENDED]
0
3. The authority citation for 40 CFR part 97 continues to read as
follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et
seq.
0
4. Appendix A to Subpart EE is amended by adding the entry for ``West
Virginia'' in alphabetical order under paragraph 1. to read as follows:
Appendix A to Subpart EE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations
1. * * *
West Virginia (for control periods 2009-2014)
* * * * *
0
5. Appendix A to Subpart EEEE is amended by adding the entry for West
Virginia in alphabetical order to read as follows:
Appendix A to Subpart EEEE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations
* * * * *
West Virginia (for control periods 2009-2014)
* * * * *
[FR Doc. E7-24367 Filed 12-17-07; 8:45 am]
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