E7-2126. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Amendments to the Minor New Source Review Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the West Virginia State Implementation Plan (SIP). The revisions set forth the procedures for stationary source reporting and the criteria for obtaining a permit to construct and operate a new stationary source which is not a major stationary source. The rule establishes the requirements for obtaining an administrative update to an existing permit, temporary permit or a general permit, and for filling notifications and maintaining records of changes not otherwise subject to the permit requirements of this rule. The rule establishes public participation requirements as well as procedures for the transfer, suspension and revocation of permits. EPA is approving these revisions to West Virginia's SIP in accordance with the requirements of the Clean Air Act.

DATES:

This rule is effective on April 9, 2007 without further notice, unless EPA receives adverse written comment by March 12, 2007. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0915 by one of the following methods:

A. www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: [e-mail].

C. Mail: EPA-R03-OAR-2006-0915, 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-2006-0915. 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 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, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On September 10, 2003, the West Virginia Department of the Environmental Protection (WVDEP) submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of amendments to West Virginia Legislative Rule 45 CSR 13 issued by the State of West Virginia on March 6, 2003, and effective June 1, 2003. The State amended the regulations in order to (1) set forth the procedures for stationary source reporting and the criteria for obtaining a permit to construct and operate a new stationary source which is not a major stationary source and to modify a non-major stationary source; (2) establishes the requirements for obtaining an administrative update to an existing permit, temporary permit or a general permit, and for filling notification and maintaining records of changes not otherwise subject to the permit requirements of this rule; and (3) establishes public participation requirements as well as procedures for the transfer, suspension and revocation of permits. West Virginia is seeking approval of these amendments to this rule pursuant to Sections 110(a)(2)(C) and 112(l) of the Clean Air Act, and 40 CFR 51.160 through 51.164.

II. Summary of SIP Revision and Program Review

A. What is being addressed in this document?

West Virginia Legislative Rule 45 CSR 13 is part of the West Virginia SIP approved by the USEPA to assure attainment and maintenance of attainment with the national ambient air quality standards (NAAQS). The proposed revision were initiated by the West Virginia Department of the Environment Protection (WVDEP) as part of an effort to streamline the permitting program by eliminating unnecessary permitting requirements for insignificant sources, broadening the general permit mechanism, reducing agency review timeframes for permit action, modifying applicability thresholds and reducing application fees for general permits.

B. What are the program changes that EPA is approving?

The amendments are summarized as follows:

1. Permitting thresholds for modification and stationary sources have been revised from six (6) pounds per hour (pph) or more or ten (10) tons per year (tpy) or more to six (6) pph and ten (10) tpy or more, or more than 144 pounds per calendar day (ppd) in any regulated air pollutant (Section 2.17.a) and (Section 2.24.b). WVDEP recognizes that both thresholds, the 6 pph and 10 tpy and the 144 ppd have the potential to allow some sources to emit up to 26 tons a year without obtaining a permit, but WVDEP believes the 144 ppd threshold and the Department's authority to prevent “statutory air pollution” will serve as useful backstops in those relatively uncommon situations.

2. The de minimis list in Table 45-13B has been expanded to include additional commercial and residential maintenance and upkeep activities. (Table 45-13B, Nos. 39 and 40).

3. WVDEP review times have been shortened from 180 day to 90 days for Class II general permit registrations; 180 days to 60 days for temporary permits; and, 180 days to 45 days for Class I general permits (Section 5.7). WVDEP will be able to meet the deadlines in this rule.

4. Revisions to general permit language to expand authority by removing “facility-wide” restriction. Also, a provision for simpler general permits (Class I) has been added which does not require public notice for each Class I registration and requires a smaller fee. WVDEP has added general permit requirements to Section 5.12.

5. A revision to provide authority to revise general permit registrations through administrative updates. (Section 4.)

6. A revision to public notice requirements, from a 45-day notice at draft permit stage, to a 30-day notice and restored 30-day notice by applicant at application stage. (Section 8.4.)

7. A reduction of registration application fees for general permits from $1,000 to $250 for Class I and $500 for Class II general permits, with an exception for “small businesses” applying for Class I general permits. Also, an exemption for Class I general permits from the additional fees for NSPS, NESHAPs, etc. (Section 12.1.)

8. Revised language which clarifies that commercial display ad and sign requirements occur contemporaneously with the WVDEP's legal ad (at draft permit stage), unless the applicant wishes to place the ad/sign earlier. (Section 8.4.a and 8.5.a.)

9. Various technical revisions to the rule, i.e., changed Director to Secretary.

III. Final Action

EPA is approving these amendments to West Virginia 45 CSR 13—Permits for Construction, Modification, Relocation and Operation of Stationary sources of Air Pollutants, Notification Requirements, Administrative Updates, Temporary Permits, General Permits and Procedures for Evaluation as a revision to the state's minor new source review program. The amendments are consistent with 40 CFR 51.160 through 51.164 and sections 110 and 112(l) of the Clean Air Act. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on April 9, 2007 without further notice unless EPA receives adverse comment by March 12, 2007. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. 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 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 April 9, 2007. 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).) EPA is approving these amendments to West Virginia 45 CSR 13—Permits for Construction, Modification, Relocation and Operation of Stationary sources of Air Pollutants, Notification Requirements, Administrative Updates, Temporary Permits, General Permits and Procedures for Evaluation as a revision to the state's minor new source review program.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: January 31, 2007.

James W. Newsom,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

2. In § 52.2520, the table in paragraph (c) is amended by revising the entry 45 CSR 13 to read as follows:

§ 52.2520

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the West Virginia SIP

State citation [Chapter 16-20 or 45 CSR]	Title/subject	State effective date	EPA approval date	Additional explanation/citation at 40 CFR 52.2565
45 CSR 13 Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements, Administrative Updates, Temporary Permits, General Permits, and Procedures for Evaluation
*         *         *         *         *         *         *
Section 45-13-1	General	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-2	Definitions	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-3	Reporting Requirements for Stationary Sources	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-4	Administrative Updates to Existing Permits and General Permit Registrations	6/01/03	2/08/07 [Insert page number where the document begins]	Section Title Changed.
Section 45-13-5	Permit Application and Reporting Requirements for Construction of and Modifications to Stationary Sources	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-6	Determination of Compliance of Stationary Sources	6/01/03	2/08/07 Insert page number where the document begins]
Section 45-13-7	Modeling	6/01/03	2/08/07 Insert page number where the document begins]
Section 45-13-8	Public Review Procedures	6/01/03	2/08/07 Insert page number where the document begins]
Section 45-13-9	Public Meetings	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-10	Permit Transfer, Suspension, Revocation and Responsibility	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-11	Temporary Construction or Modification Permits	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-12	Permit Application Fees	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-13	Inconsistency Between Rules	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-14	Statutory Air Pollution	6/01/03	2/08/07 [Insert page number where the document begins]
Section 45-13-15	Hazardous Air Pollutants	6/01/03	2/08/07 [Insert page number where the document begins]
Table 45-13A	Potential Emission Rate	6/01/00	2/28/03, 68 FR 9559	(c)(52).
Table 45-13B	De Minimis Sources	6/01/03	2/08/07 [Insert page number where the document begins]	Table Title Change.
*         *         *         *         *         *         *

* * * * *