Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Prevention of Significant Deterioration: NOINF2 and PM-10 Increments

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,

[email protected].

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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