Approval and Promulgation of Air Quality Implementation Plans; Approval Under Section 112(l) of the Clean Air Act; West Virginia; Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV026-6012; FRL-6505-1]

Approval and Promulgation of Air Quality Implementation Plans;

Approval Under Section 112(l) of the Clean Air Act; West Virginia;

Permits for Construction, Modification, Relocation and Operation of

Stationary Sources of Air Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving in part, and disapproving in part, a State

Implementation Plan (SIP) revision submitted by the State of West

Virginia. This SIP revision changes portions of West Virginia's minor

new source review permit program and establishes new provisions for

permitting existing stationary sources. Specifically, this action

approves in part, and disapproves in part, changes to West Virginia's

minor new source review permit program; and approves West Virginia's

minor new source review and existing stationary source operating permit

program as meeting federal criteria for permit programs that can limit

a source's potential to emit criteria pollutants and hazardous air

pollutants (HAPs).

EFFECTIVE DATE: This final rule is effective on February 14, 2000.

ADDRESSES: Copies of the documents relevant to this action are

available 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; 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, 2531.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson, (215) 814-2066

or by e-mail at Abramson.J[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On February 3, 1998 (63 FR 5484), EPA published a notice of

proposed rulemaking (NPR) regarding West Virginia's minor new source

review and existing stationary source operating permit program. The NPR

proposed approval in part, and disapproval in part, of changes to West

Virginia's minor new source review permit program. Specifically, the

NPR proposed to disapprove a new exemption from minor new source review

for sources that have been issued permits under the State's federally

approved major source operating permit program (developed pursuant to

Title V of the Clean Air Act) as such exemption does not comport with

the federal requirements for scope of 40 CFR 51.160. The NPR also

proposed to disapprove new provisions governing the issuance of

temporary construction or modification permits with only a fifteen day

public comment period as such provisions do not satisfy the federal

requirements for public participation of 40 CFR 51.161(b). The NPR

proposed to approve all other provisions of West Virginia's minor new

source review program under section 110 of the Clean Air Act (the Act)

as a revision to the West Virginia SIP. The formal SIP revision,

submitted by West Virginia on August 26, 1994 applies statewide.

The NPR also proposed to approve West Virginia's minor new source

review and existing stationary source operating permit program under

section 110 of the Act as meeting the criteria set forth in a June 28,

1989 Federal Register document (54 FR 27274) for state permit programs

that can limit a source's potential to emit criteria pollutants. The

NPR also proposed to approve West Virginia's minor new source review

and stationary existing source operating permit program under section

112(l) of the Act as meeting the statutory criteria

[[Page 2043]]

for state permit programs that can limit a source's potential to

emissions HAPs.

Other specific requirements of West Virginia's SIP submittal and

the rationale for EPA's proposed action are explained in the NPR and

will not be restated here.

II. Public Comments Received and EPA's Responses

EPA received comments on the NPR from the West Virginia Office of

Air Quality (WVOAQ) and from the National Environmental Development

Association's Clean Air Regulatory Project (NEDA/CARP), an industry

coalition. These comments and EPA's responses are discussed below. All

comments are contained in the docket at the ADDRESSES section above.

Comment: West Virginia's minor new source review provisions

authorize discretionary issuance by the WVOAQ Chief of temporary

permits for experimental production test runs under an expedited review

and public participation process (a fifteen (15) day public comment

period). WVOAQ believes that such a fast-track process may be

appropriate where a company's vital business interests warrant such an

approval process and where only small emissions increases or very small

emissions of new substances for limited periods of time are involved.

WVOAQ recognizes, however, that some clear, restrictive boundaries and

safeguards need to be adhered to in establishing eligibility and

conditions for such permits and intends to set forth such boundaries

and safeguards via written policy or interpretive rule at some point in

the near future.

EPA Response: EPA agrees that a 30-day public comment period for

some minor new source review permitting actions may be impracticable

and/or unnecessarily burdensome.1 However, as discussed in

the NPR, limitations on the full public participation requirements of

40 CFR 51.161 should be applied consistent with the environmental

significance of the activity. WVOAQ's plan to define restrictive

boundaries and safeguards so that only less environmentally significant

changes are eligible for fast-track processing is one way to link

permit process levels with environmental significance. However, such

criteria must be submitted and approved as a revision to the West

Virginia SIP before the fast-track procedure can be recognized as an

enforceable part of West Virginia's SIP approved minor new source

review program. The WVOAQ has not submitted any such criteria to EPA

for consideration to date. Without a correlation to the environmental

significance of the activity, EPA cannot consider the minimum public

process afforded, fifteen (15) days, to be adequate in all instances.

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\1\ In the past, EPA has explained that section 51.160(e) allows

state programs to vary procedures for, and timing of, public review

in light of the environmental significance of the activity. See 60

FR 45564 (August 31, 1995).

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Comment: NEDA/CARP commented that it is inappropriate and legally

objectionable for EPA to take action on any SIP revision or Clean Air

Act section 112(l) submission on the basis that limits on a source's

potential to emit (PTE) must be federally enforceable. NEDA/CARP

commented that the United States Court of Appeals for the District of

Columbia Circuit vacated the requirement of federal enforceability as

part of the PTE definition for both the new source review rules and the

federal operating permit rules, 40 CFR parts 51, 52, and 70. See

Chemical Manufacturers Association v. EPA, No. 89-1514 (Sept 15, 1995)

(``CMA'') and Clean Air Implementation Project, et. al v. Browner, Civ.

No. 92-1303 (June 28, 1996) (``CAIP''). While the definition was not

vacated as it pertains to sources of hazardous air pollutants (40 CFR

63.2), it nonetheless was remanded to the Environmental Protection

Agency for further rulemaking consistent with the court's directives.

See National Mining Association, et al. v. EPA, 59 F.3d 1351 (D.C. Cir.

1995). As of this date, EPA has not proposed further rulemaking on the

PTE definition for any Clean Air Act programs. NEDA/CARP also believes

that reliance on EPA's June 28, 1989 guidance (54 FR 27274) is

inappropriate after the D.C. Circuit decisions cited above. NEDA/CARP

also commented that it is not clear whether EPA's proposed approval of

West Virginia's submission under section 112(l) of the Act is part of

the SIP action. NEDA/CARP commented that such an action would be

inappropriate.

EPA response: EPA need not interpret the definition of ``potential

to emit'' as requiring federal enforceability in order to approve West

Virginia's minor new source review and existing stationary source

operating permit program under sections 110 and 112(l) of the Act. EPA

recognizes that there may be instances where PTE limits need not be

federally enforceable under federal new source review and federal

operating permit rules in light of the court decisions cited above.

Moreover, although the NMA decision did not vacate the federal

enforceability requirement of the PTE definition under part 63, even

prior to NMA, EPA had indicated in guidance that certain state-

enforceable PTE limits on HAPs may be recognized.2

Nevertheless, EPA policy encourages States to use federally enforceable

mechanisms, such as SIP-approved minor NSR programs, federally

enforceable state operating permit programs (FESOPs) meeting the

requirements of the June 28, 1989 guidance (54 FR 27274), and programs

approved under section 112(l) for the purpose of establishing PTE

limits.3 Accordingly, West Virginia requested EPA approval

of its minor new source review and existing stationary source operating

permit program under sections 110 and 112 of the Act in order to be

able to establish federally enforceable limits on a source's potential

to emit criteria pollutants and HAPs.4 For the reasons

discussed in the NPR, EPA has found that West Virginia's program meets

federal requirements and is now making such approvals.

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\2\ See Memorandum from John Seitz re Options for Limiting the

Potential to Emit (PTE) of a Stationary Source under section 112 and

Title V of the Clean Air Act (January 25, 1995); Memorandum from

John Seitz re Release of Interim Policy on Federal Enforceability of

Limitations on Potential to Emit (January 22, 1996); Memorandum from

John Seitz re Second Extension of January 25, 1995 Potential to Emit

Transition Policy and Clarification of Interim Policy (July 10,

1998).

\3\ See Memorandum from John Seitz re Release of Interim Policy

on Federal Enforceability of Limitations on Potential to Emit

(January 22, 1996).

\4\ West Virginia already had a minor new source review

permitting program approved into its SIP. While permits issued

pursuant to such program are federally enforceable, they are not

specifically recognized as being federally enforceable for purposes

of limiting a source's potential to emit.

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Until EPA promulgates rules establishing otherwise, states may be

able to establish permit programs or other mechanisms that limit

potential to emit and thereby avoid applicability of certain

requirements even if such limits are not federally enforceable, if

those limits are shown to be effective. See NMA, 59 F.3d at 1363. Given

the uncertainty of the final outcome of the requirement for federal

enforceability, however, EPA does not recommend that states postpone

submitting state permit programs for section 110 or 112(l) approval, or

withdraw programs previously approved under such authorities. Sources

with federally enforceable limits on potential emissions will be less

likely to have to apply for revised permits or be subject to major

source requirements should the requirement for federal enforceability

be reinstated or the section 112 transition policy be revoked.

Moreover, it is important to recognize that West Virginia's

regulated

[[Page 2044]]

community may benefit from being able to take limits on potential to

emit that are federally enforceable. Currently, West Virginia's SIP-

approved major non-attainment new source review program requires that

limitations on potential to emit be federally enforceable. Approval of

West Virginia's minor new source review and existing stationary source

operating permit program into the SIP under 110 will allow sources to

continue to rely on minor new source review permits to ``net out'' of

major nonattainment new source review requirements.

With respect to NEDA/CARP's comment that it would be inappropriate

for EPA to approve West Virginia's 112(l) program into the SIP, EPA

wishes to make clear that its approval of West Virginia's submission

under section 112(l) of the Act is separate from EPA's concurrent

approval of the submission under section 110 of the Act as a SIP

revision. The Agency is not approving the 112(l) program into the SIP.

III. Final Action

EPA is approving in part, and disapproving in part, changes to West

Virginia's minor new source review program as a revision to the West

Virginia SIP under section 110 of the Act. EPA is disapproving West

Virginia's exemption of sources with Title V permits from minor new

source review. EPA is also disapproving West Virginia's temporary

permitting procedure. Such provisions do not comport with federal

requirements for state minor new source review programs. At the same

time, EPA is approving all other portions of West Virginia's minor new

source review program as a revision to the West Virginia SIP. This

action approves and makes federally enforceable many of the updates and

improvements from the SIP approved version of West Virginia's minor new

source review program, and at the same time prevents serious

relaxations related to the program's scope and public participation

requirements.

EPA is also approving West Virginia's minor new source review and

existing stationary source operating permit program under sections 110

and 112(l) as meeting federal requirements for limiting a source's

potential to emit criteria pollutants and HAPs. Approval under sections

110 and 112(l) of the Clean Air Act will recognize West Virginia's

minor new source review and existing stationary source operating permit

program as capable of establishing federally enforceable limitations on

criteria pollutants and hazardous air pollutants, respectively. Such

approval will confer federal enforceability status to PTE limitations

in permits issued pursuant to West Virginia's minor new source review

and existing stationary source operating permit program which meet

applicable June 28, 1989 and section 112(l) criteria, including permits

which have been issued prior to EPA's final action.

Accordingly, EPA is revising 40 CFR 52.2520 (Identification of

plan) to reflect EPA's approval action. At the same time, EPA is

revising 40 CFR 52.2522 (Approval status) to announce EPA's disapproval

of the provisions which exempt sources with Title V permits from minor

new source review and which govern the issuance of temporary

construction and modification permits as revisions to the West Virginia

SIP.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive Order 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental Partnership). Executive Order 13132 requires EPA to

develop an accountable process to ensure ``meaningful and timely input

by State and local officials in the development of regulatory policies

that have federalism implications.'' ``Policies that have federalism

implications'' is defined in the Executive Order to include regulations

that 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.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism implications and that preempts State law unless the

Agency consults with State and local officials early in the process of

developing the proposed regulation.

This final rule will 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), because it merely approves a state rule

implementing a federal standard, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.'' Thus, the requirements of section 6 of the Executive Order

do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that the EPA determines: (1) Is

``economically significant,'' as defined under Executive Order 12866,

and (2) the environmental health or safety risk addressed by the rule

has a disproportionate effect on children. If the regulatory action

meets both criteria, the Agency must evaluate the environmental health

or safety effects of the planned rule on children and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

This final rule is not subject to Executive Order 13045 because it

is not an economically significant regulatory action as defined by

Executive Order 12866, and it does not address an environmental health

or safety risk that would have a disproportionate effect on children.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or uniquely affects

the communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to

[[Page 2045]]

develop an effective process permitting elected and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.'' Today's rule

does not significantly or uniquely affect the communities of Indian

tribal governments. This action does not involve or impose any

requirements that affect Indian Tribes. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, 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).

This final rule will not have a significant impact on a substantial

number of small entities because EPA's disapproval of the State request

under section 110 and subchapter I, part D of the CAA does not affect

any existing requirements applicable to small entities. Any pre-

existing federal requirements remain in place after this disapproval.

Federal disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, I certify that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

F. Unfunded Mandates

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

annual costs to State, local, or tribal governments in the aggregate;

or to 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 promulgated does not

include a Federal mandate that may result in estimated annual 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

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

This Federal disapproval action maintains pre-existing Federal

requirements that have been in effect since November 10, 1975.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector result from this action.

G. 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).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical. EPA believes that VCS are inapplicable to this action.

Today's action does not require the public to perform activities

conducive to the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action on West Virginia's minor new source

review and existing stationary source operating permit program must be

filed in the United States Court of Appeals for the appropriate circuit

by March 13, 2000. 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 approving in part and disapproving in part revisions to

West Virginia's changes to West Virginia's minor new source review

program under section 110, and approving West Virginia's minor new

source review and existing stationary source operating permit program

under sections 110 and 112(l) of the Clean Air Act for purposes of

limiting potential to emit 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.

Dated: November 30, 1999.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

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. Section 52.2520 is amended by adding paragraph (c)(43) to read

as follows:

Sec. 52.2520 Identification of plan.

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[[Page 2046]]

(c) * * *

(43) Revisions to West Virginia Regulation 45 CSR 13 submitted on

August 26, 1994 by the West Virginia Department of Environmental

Protection.

(I) Incorporation by reference.

(A) Letter of August 26, 1994 from the West Virginia Department of

Environmental Protection transmitting 45 CSR 13 ``Permits for

Construction, Modification, Relocation and Operation of Stationary

Sources of Air Pollutants, Notification Requirements, Temporary

Permits, General Permits, and Procedures for Evaluation''.

(B) Revised version of 45 CSR 13 ``Permits for Construction,

Modification, Relocation and Operation of Stationary Sources of Air

Pollutants, Notification Requirements, Temporary Permits, General

Permits, and Procedures for Evaluation'', sections: 1 except for the

reference in subsection 1.1 to major stationary sources which have not

been issued a permit pursuant to 45 CSR 30, 2-8, 10, 11 except for

subsection 11.2, and Tables 45-13A and 45-13B, effective April 27,

1994.

(ii) Additional Material.

(A) Remainder of August 26, 1994 State submittal pertaining to 45

CSR 13, ``Permits for Construction, Modification, Relocation and

Operation of Stationary Sources of Air Pollutants, Notification

Requirements, Temporary Permits, General Permits, and Procedures for

Evaluation''.

(B) Letter of September 5, 1996 from the West Virginia Office of

Air Quality requesting EPA approval of 45 CSR 13 under 112(l) of the

Clean Air Act, and clarifying that the definition of ``major stationary

source'' in 45 CSR 13 will be interpreted consistently with the 45 CSR

14 and 45 CSR 19 programs as to the types of source categories which

need to include fugitive emissions.

3. Section 52.2522 is amended by adding paragraph (h) to read as

follows:

Sec. 52.2522 Approval status.

* * * * *

(h) EPA disapproves the portion of 45 CSR 13 subsection 1

referencing major stationary sources which have not been issued a

permit pursuant to 45 CSR 30 and section 11.2, submitted by the West

Virginia Department of Environmental Protection on August 26, 1994, as

revisions to the West Virginia SIP. These provisions do not meet the

requirements of 40 CFR 51.160 for scope. EPA also disapproves 45 CSR 13

section 9, submitted by the West Virginia Department of Environmental

Protection on August 26, 1994, as a revision to the West Virginia SIP.

These provisions do not meet the requirements of 40 CFR 51.161 for

public participation.

[FR Doc. 00-490 Filed 1-12-00; 8:45 am]

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