[Federal Register Volume 61, Number 205 (Tuesday, October 22, 1996)]
[Rules and Regulations]
[Pages 54734-54735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27004]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WV017-6003a; WV040-6005a; FRL-5619-8]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Prevention of Significant Deterioration: NO2 and
PM-10 Increments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving two State Implementation Plan (SIP) revisions
submitted by the State of West Virginia. The first revision amends West
Virginia's Prevention of Significant Deterioration (PSD) regulation by
amending definitions, establishing the maximum increase in ambient
nitrogen dioxide concentrations allowed in an area above the baseline
concentration (the increment) and updating the references to federal
air quality modeling procedures. The second revision removes increment
provisions for total suspended particulates (TSP) and replaces them
with increment provisions for particulate matter with an aerodynamic
diameter of less than or equal to a nominal 10 micrometers (PM-10). The
second revision also updates the references to federal air quality
modeling procedures and adds provisions for pollution control projects
at electric utilities. The intended effect of this action is to approve
revisions to West Virginia's PSD regulation as it meets federal
requirements. This action is being taken under section 110 of the Clean
Air Act.
DATES: This action is effective December 23, 1996 unless notice is
received on or before November 21, 1996 that adverse or critical
comments will be submitted. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permit
Programs Section, Mailcode 3AT23, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air, Radiation,
and Toxics Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and West Virginia
Department of Environmental Protection, Office of Air Quality, 1558
Washington Street, East, Charleston, West Virginia 25311.
FOR FURTHER INFORMATION CONTACT: Lisa M. Donahue, (215) 566-2062,
donahue.lisa@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: On August 10, 1993, the State of West
Virginia submitted formal revisions to its State Implementation Plan
(SIP). Only the revisions to Title 45 Code of State Rules Series 14,
Permits for Construction and major Modificatiion of Major Stationary
sources of Air Pollution for the Prevention of Significant
Deterioration (45 CFR 14) are the subject of this rulemaking notice.
The other portions of the August 10, 1993 submittal, including
amendments to 45 CSR 5, 19, 21, and 29, are the subjects of separate
rulemaking notices. West Virginia submitted another formal revision to
45 CSR 14 on May 20.
The August 10, 1993 SIP revision consists of changes to 45 CSR 14
which amend definitions, establish the maximum increase in ambient
nitrogen dioxide concentrations allowed in an area above the baseline
concentration (the increment) and update the references to federal air
quality modeling procedures. The May 20, 1996 revision consists of
additional changes to 45 CSR 14 which add provisions for a PM-10
increment, further update the federal modeling guideline reference, and
add provisions to facilitate pollution control projects at electric
utilities.
EPA evaluated West Virginia's SIP revisions and concluded that the
revised regulations strengthen the SIP by providing for the protection
of the PSD increments for nitrogen dioxide and PM-10, and meet the
federal PSD requirements of 40 CFR 51.166.
The revised regulations are enforceable by EPA, with the exception
of the definition of ``potential to emit''. In the definition of
``Potential to Emit'' (Sec. 45-14-2.6), the language is written to
allow use of limitations on potential to emit (PTE) that would be
enforceable by the West Virginia Chief of Air Quality, but not EPA. Two
recent court decisions (National Mining Association v. EPA, 59 F.3d
1351 (D.C. Cir. 1995) and Chemical Manufacturers Ass'n v. EPA, No. 89-
1514 (D.C. Cir. Sept. 15, 1995)) spoke to the limitations in the
capacity of a source to emit a pollutant and whether those limitations
must be federally enforceable. Since the Chemical Manufacturers Ass'n
v. EPA ruling vacated the federally enforceable portion of the
definition of PTE, EPA cannot require it in West Virginia's PSD
program.
A more detailed evaluation of the submitted revisions, including a
discussion of the court rulings, is provided in two Technical Support
Documents, which are available upon request from the Regional EPA
office listed in the ADDRESSES section of this document.
EPA is approving these SIP revisions without prior proposal because
the Agency views these as noncontroversial amendments and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revisions
should adverse or critical comments be filed. This action will be
effective December 23, 1996 unless, by November 21, 1996, adverse or
critical comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective on December 23, 1996.
Final Action
EPA is approving the State of West Virginia's revisions to 45CSR14
``Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution for the Prevention of Significant
Deterioration'' submitted on August 10, 1993 and May 20, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future
[[Page 54735]]
request for revision to any state implementation plan. Each request for
revision to the state implementation plan shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed/promulgated
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action to approve revisions to West Virginia's
Prevention of Significant Deterioration program (45 CSR 14) must be
filed in the United States Court of Appeals for the appropriate circuit
by December 23, 1996. 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 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, Intergovernmental relations, Nitrogen dioxide, Particulate
matter.
Dated: September 20, 1996.
Stanely L. Laskowski,
Acting Regional Administrator, Region III.
40 CFR part 52, subpart XX of chapter I, title 40 is amended as
follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart XX--West Virginia
2. Section 52.2520 is amended by adding paragraphs (c)(39) and
(c)(40) to read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
(39) Revisions to the West Virginia Regulations 45 CSR 14 submitted
on August 10, 1993 by the West Virginia Department of Commerce, Labor &
Environmental Resources:
(i) Incorporation by reference.
(A) Letter of August 10, 1993 from the West Virginia Department of
Commerce, Labor & Environmental Resources transmitting revisions to 45
CSR 14 ``Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution for the Prevention of Significant
Deterioration''.
(B) Revisions to 45 CSR 14, effective July 7, 1993, including
revisions to definitions and the addition of NO2 increment
provisions. Not included in this incorporation by reference are 45 CSR
14 paragraphs 1.1, 1.2, 2.1, 2.4, 2.9, 2.11, 2.13, 2.13, 2.22, 2.26,
2.27, 2.32, 2.33 to 2.38, 3.2, 4.1 to 4.3, 5.1, 7.1 to 7.4, 8.1, 10.1,
10.4, 10.7, and 11.1.
(40) Revisions to the West Virginia Regulations 45 CSR 14 submitted
on May 20, 1996 by the West Virginia Division of Environmental
Protection:
(i) Incorporation by reference.
(A) Letter of May 20, 1996 from the West Virginia Division of
Environmental Protection transmitting revisions to 45 CSR 14 ``Permits
for Construction and Major Modification of Major Stationary Sources of
Air Pollution for the Prevention of Significant Deterioration''.
(B) Revisions to 45 CSR 14, effective May 1, 1995, including the
addition of PM-10 increment provisions, revisions to definitions, and
preconstruction review requirements for electric steam generating
units. Not included in this incorporation by reference are 45 CSR 14
paragraphs 4.1 to 4.3, 7.3, 8.1, 10.1, 10.2, 10.4, and 11.1.
[FR Doc. 96-27004 Filed 10-21-96; 8:45 am]
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