Approval and Promulgation of Air Quality Implementation Plans; West VirginiaEmission Statement Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WVA10-1-5918a; FRL-5265-7]

Approval and Promulgation of Air Quality Implementation Plans;

West Virginia--Emission Statement Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the State of West Virginia. This revision consists of an

emission statement program for stationary sources which emit volatile

organic compounds (VOCs) and/or nitrogen oxides (NOX) at or above

specified actual emission threshold levels. This program applies to

certain stationary sources within the West Virginia counties of Putnam,

Kanawha, Cabell, Wayne, Wood, and Greenbrier. The intended effect of

this action is to approve a regulation for annual reporting of actual

emissions by sources that emit VOC and/or NOX, within the counties

listed above, in accordance with the 1990 Clean Air Act (CAA). This

action is being taken under section 110 of the CAA.

DATES: This action will become effective September 18, 1995 unless

notice is received on or before September 5, 1995 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 must be mailed to Marcia L. Spink, Associate

Director (3AT00), Air Programs, 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 following

location: Environmental Protection Agency, Region III, Air, Radiation,

and Toxics Division, 841 Chestnut Building, Philadelphia, PA 19107; and

the West Virginia Office of Air Quality, 1558 Washington Street, East,

Charleston, West Virginia, 25311.

FOR FURTHER INFORMATION CONTACT: Marcia L. Spink, U.S. Environmental

Protection Agency, Region III, 841 Chestnut Building, Philadelphia,

Pennsylvania 19107, (215) 597-4713.

SUPPLEMENTARY INFORMATION: On August 10, 1993, the West Virginia Office

of Air Quality (WVOAQ) submitted a SIP revision to EPA. This revision

would add West Virginia Regulation Title 45, Series 29, ``Rule

Requiring the Submission of Emission Statements for Volatile Organic

Compounds and Oxides of Nitrogen Emissions,'' consisting of

Subsections: 1. General; 2. Definitions; 3. Applicability; 4.

Compliance Schedule; 5. Emission Statement Requirements; 6.

Enforceability; and 7. Severability, effective July 7, 1993 in the

State of West Virginia to the West Virginia SIP.

I. Background

The air quality planning and SIP requirements for ozone

nonattainment and transport areas are set out in subparts I and II of

Part D of Title I of the Clean Air Act, as amended by the Clean Air Act

Amendments of 1990. EPA published a ``General Preamble'' describing

EPA's preliminary views on how it intends to review SIP's and SIP

revisions submitted under Title I of the CAA, including those State

submittals for ozone transport areas within the States (see 57 FR 13498

(April 16, 1992) (''SIP: General Preamble for the Implementation of

Title I of the Clean Air Act Amendments of 1990''), 57 FR 18070 (April

28, 1992) (''Appendices to the General Preamble''), and 57 FR 55620

(November 25, 1992) (''SIP: NOX Supplement to the General

Preamble'')).

EPA also issued a draft guidance document describing the

requirements for the emission statement programs discussed in this

action, entitled ``Guidance on the Implementation of an Emission

Statement Program'' (July, 1992). The Agency is also conducting a

rulemaking process to modify title 40, part 51 of the CFR to reflect

the requirements of the emission statement program.

Section 182 of the Act sets out a graduated control program for

ozone nonattainment areas. Section 182(a) sets out requirements

applicable in marginal ozone nonattainment areas, which are also made

applicable by section 182 (b), (c), (d), and (e) to all other ozone

nonattainment areas. Among the requirements in section 182(a) is a

program for stationary sources to prepare and submit to the State each

year emission statements certifying their actual emissions of VOCs and

NOX. This section of the Act provides that the States are to

submit a revision to their SIPs by November 15, 1992 establishing this

emission statement program.

If a source emits either VOC or NOX at or above the designated

minimum reporting level, the other pollutant should be included in the

emission statement, even if it is emitted at levels below the specified

cutoffs.

States may waive, with EPA approval, the requirement for an

emission statement for classes or categories of sources with less than

25 tons per year of actual plant-wide NOX or VOC emissions in

nonattainment areas if the class or category is included in the base

year and periodic inventories and emissions are calculated using

emissions factors established by EPA (such as those found in EPA

publication AP-42) or other methods acceptable to EPA.

At minimum, the emission statement data should include:

--Certification of data accuracy;

--Source identification information;

--Operating schedule;

[[Page 39856]]

--Emissions information (to include annual and typical ozone season day

emissions);

--Control equipment information; and

--Process data.

EPA developed emission statements data elements to be consistent

with other source and State reporting requirements. This consistency is

essential to assist States with quality assurance for emission

estimates and to facilitate consolidation of all EPA reporting

requirements.

II. EPA's Evaluation of West Virginia's Submittal

A. Procedural Background

In accordance with the requirements of 40 CFR Sec. 51.102, a public

hearing concerning West Virginia's SIP revision was held on June 23,

1993, in Charleston, West Virginia to solicit public comment on the

implementation plan for the State. Following the public hearing, the

plan was adopted by the State and signed by the Governor's designee on

July 7, 1993 and submitted to EPA on August 10, 1993 as a revision to

the SIP.

B. Components of West Virginia's Emission Statement Program

There are several key and specific components of an acceptable

emission statement program. Specifically, West Virginia must submit a

revision to its SIP which consists of an emission statement program

which meets the minimum requirements for reporting by the sources and

the State. For the emission statement program to be approvable, West

Virginia's SIP revision must include, at a minimum, definitions and

provisions for applicability, compliance, and specific source reporting

requirements and reporting forms.

Subsection 45-29-2. Definitions, includes, among others,

definitions for the following terms: Actual emissions; Annual fuel

process rate; Control efficiency; Control equipment identification

code; Emission factor; Emission statement; Estimated emission method

code; Estimated emission units; Facility; Measured emission methods

code; Measured emission units; Owner or operator; Oxides of nitrogen;

Ozone season; Percentage seasonal throughput; Person; Point; Potential

to emit; Typical ozone season day; and Volatile organic compounds.

Subsections 45-29-1. General; 45-29-3. Applicability; 45-29-6.

Enforceability; and 45-29-7. Severability require that a person who

owns or operates any installation, source, or premises to report the

levels of emissions from all stationary sources of VOCs and NOX.

The state may, with EPA's approval, waive the Emission Statements

requirements for classes or categories for stationary sources with

facility-wide actual emissions of less than 25 tpy of VOC or NOX,

if the class or category is included in the Base Year ozone and

Periodic ozone inventories are calculated using EPA approved emission

factors or other methods acceptable to EPA. Subsection 45-29-5.

Emission Statement Requirements, requires that a certifying official

for each facility provide West Virginia with a statement reporting

emissions by May 13, in 1993, and by April 15 of every year thereafter

for the emissions discharged during the previous calendar year. This

subsection of the regulation also delineates specific requirements for

the content of these annual emission statements.

C. Enforceability

The State of West Virginia has provisions in its SIP which ensure

that the emission statement requirements of West Virginia Regulation

Title 45, Series 29, ``Rule Requiring the Submission of Emission

Statements for Volatile Organic Compounds and Oxides of Nitrogen

Emissions,'' are adequately enforced.

EPA has determined that the submittal made by the State of West

Virginia satisfies the relevant requirements of the CAA and EPA's

guidance document, ``Guidance on the Implementation of an Emission

Statement Program'' (July 1992).

III. Final Action

EPA is approving a revision to the West Virginia SIP to include

Regulation Title 45, Series 29, ``Rule Requiring the Submission of

Emission Statements for Volatile Organic Compounds and Oxides of

Nitrogen Emissions.'' This revision was submitted to EPA by the State

of West Virginia on August 10, 1993.

EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will become

effective September 18, 1995 unless, within 30 days of publication,

adverse or critical comments are received. If EPA receives such

comments, this action will be withdrawn before the effective date by

publishing a subsequent notice 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 September 18, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision of any SIP. Each request for revision to the SIP 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. Redesignation of an area to attainment under section

107(d)(3)(E) of the Act does not impose any new requirements on small

entities. Redesignation is an action that affects the status of a

geographical area and does not impose any regulatory requirements on

sources. The Administrator certifies that the approval of the

redesignation request will not affect a substantial number of small

entities. 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 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 SIP's 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 sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules

[[Page 39857]]

that include a Federal mandate that may result in estimated costs of

$100 million or more to the private sector, or to State, local, or

tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under section 175A of the

Clean Air Act. These rules may bind State, local and tribal governments

to perform certain actions and also require the private sector to

perform certain duties. The rules being approved by this action will

impose no new requirements; such sources are already subject to these

regulations under State law. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action. EPA has also determined that this final action does not

include a mandate that may result in estimated costs of $100 million or

more to State, local, or tribal governments in the aggregate or to the

private sector.

The 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 must be filed in the United States Court

of Appeals for the appropriate circuit by October 3, 1995. 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 West Virginia's Emission

Statement Program 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, Hydrocarbons,

Incorporation by Reference, Intergovernmental relations, Volatile

organic compounds, Oxides of nitrogen, Ozone, Reporting and

recordkeeping requirements.

Dated: July 14, 1995.

Stanley L. Laskowski,

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. 7401-7671q.

Subpart XX--West Virginia

2. Section 52.2520 is amended by adding paragraphs (c)(34) to read

as follows:

Sec. 52.2520 Identification of plan.

* * * * *

(c) * * *

(34) Revisions to the West Virginia State Implementation Plan

submitted by the Secretary, West Virginia Department of Commerce,

Labor, and Environmental Resources, Office of Air Quality, on August

10, 1993.

(i) Incorporation by reference.

(A) Letter dated August 10, 1993 from the Secretary, West Virginia

Department of Commerce, Labor, and Environmental Resources, Office of

Air Quality submitting 45 Code of State Regulations (CSR) Series 29

``Rule Requiring the Submission of Emission Statements for Volatile

Organic Compounds and Oxides of Nitrogen Emissions'' as a revision to

the West Virginia State Implementation Plan. The effective date of this

rule, 45CSR29 is July 7, 1993.

(B) West Virginia Regulation Title 45, Series 29, ``Rule Requiring

the Submission of Emission Statements for Volatile Organic Compounds

and Oxides of Nitrogen Emissions,'' consisting of Subsections: 1.

General; 2. Definitions; 3. Applicability; 4. Compliance Schedule; 5.

Emission Statement Requirements; 6. Enforceability; and 7.

Severability, effective July 7, 1993.

(ii) Additional Material.

(A) Remainder of August 10, 1993 State submittal pertaining to 45

CSR Series 29, ``Rule Requiring the Submission of Emission Statements

for Volatile Organic Compounds and Oxides of Nitrogen Emissions.''

(B) [Reserved]

[FR Doc. 95-19272 Filed 8-3-95; 8:45 am]

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