Approval and Promulgation of Air Quality Implementation Plans; Approval Under Section 112(l) of the Clean Air Act; West Virginia; Revisions to Minor New Source Review and Addition of Minor Operating Permit Programs

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV026-6004; FRL-5957-7]

Approval and Promulgation of Air Quality Implementation Plans;

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

Revisions to Minor New Source Review and Addition of Minor Operating

Permit Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve in part and disapprove 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. This action proposes to

disapprove a new exemption from minor new source review for sources

which have been issued permits pursuant to the State's operating

permits program developed pursuant to Title V of the Clean Air Act

(``the Act''). This action also proposes to disapprove the provisions

governing the issuance of temporary construction and modification

permits. This action proposes to approve all other provisions of West

Virginia's minor new source review and existing stationary source

operating permit program. The intended effect of this action is to

propose approval of those State provisions which meet the requirements

of the Clean Air Act, and disapprove those State provisions which do

not. This action is being taken under section 110 of the Clean Air Act.

EPA is also proposing approval of West Virginia's minor new source

review and existing stationary source operating permit program pursuant

to Section 110 of the Act for the purpose of creating federally

enforceable permit conditions for sources of criteria air pollutants.

EPA is also proposing approval of West Virginia's minor new source

review and existing stationary source operating permit program under

section 112(l) of the Clean Air Act in order to extend the Federal

enforceability of State permits to include hazardous air pollutants

(HAPs).

DATES: Comments must be received on or before March 5, 1998.

ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permit

Programs Section, Mailcode 3AP11, 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 and the West

Virginia Department of Environmental Protection, Office of Air Quality,

1558 Washington Street, East, Charleston, West Virginia, 25311.

FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson,(215) 566-2066,

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

SUPPLEMENTARY INFORMATION:

I. Background

A. Minor New Source Review

Section 110(a)(2)(C) of the CAA requires every SIP to ``include a

program for the * * * regulation of the modification and construction

of any stationary source within the areas covered by the plan as

necessary to assure that national ambient air quality standards are

achieved.'' EPA's regulations now codified at Sec. Sec. 51.160 through

51.164 have since the early 1970s required a new source review (NSR)

program, and one is included in every state implementation plan (SIP).

This requirement predates and is separate from the requirement also set

forth in section 110(a)(2)(C) that States have ``major'' NSR permitting

programs under part C for the prevention of significant deterioration

of air quality (PSD) and part D for nonattainment area permitting

(nonattainment NSR) of title I.

B. Federally Enforceable State Operating Permit Programs

Many stationary source requirements of the CAA apply only to

``major sources''. Major sources are those sources whose emissions of

air pollutants exceed threshold emissions levels specified in the Act.

To determine whether a source is major, the Act focuses not only on a

source's actual emissions, but also on its potential emissions. Thus, a

source that has maintained actual emissions at levels below the major

source threshold could still be subject to major source requirements if

it has the potential to emit major amounts of air pollutants. However,

in situations where unrestricted operation of a source would result in

a potential to emit above major-source levels, such sources may legally

avoid program requirements by taking federally-enforceable permit

conditions which limit emissions to levels below the applicable major

source threshold, becoming what is termed a ``synthetic minor'' source.

1Federally-enforceable permit conditions, if violated, are

subject to enforcement by the Environmental Protection Agency (EPA) or

by citizens in addition to the state or local agency. On June 28, 1989,

EPA published guidance on the basic requirements for EPA approval of

(non-title V) federally enforceable state operating permit programs

(FESOPPs). See 54 FR 27274. Permits issued pursuant to such programs

may be used to establish federally enforceable limits on a source's

potential emissions to create ``synthetic minor'' sources.

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\1\ Several other mechanisms for major sources to become

``synthetic minors'' and legally avoid major source program

requirements exist. For more information, refer to the memorandums

entitled ``Extension of January 25, 1995 Potential to Emit

Transition Policy'' (August 28, 1996), ``Release of Interim Policy

on Federal Enforceability of Limitations on Potential to Emit''

(January 22, 1996), ``Options for Limiting the Potential to Emit

(PTE) of a Stationary Source under Section 112 and Title V of the

Clean Air Act (Act)'' (January 25, 1995), and ``Approaches to

creating Federally-Enforceable Emissions Limits'' (November 3,

1993).

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C. Federally Enforceable Permit Conditions for Hazardous Air Pollutants

Section 112(l) of the Act provides EPA with the authority to

approve state programs which regulate sources of HAPs, analogous to the

section 110 authority provided to EPA for sources of criteria air

pollutants. EPA believes it

[[Page 5485]]

has the authority under section 112(l) to approve state programs for

the purpose of making permit conditions involving HAPs federally

enforceable. EPA believes it is consistent with the intent of section

112 of the CAA for states to provide mechanisms through which sources

may avoid classification as major sources by obtaining federally

enforceable limits on potential to emit. Other available mechanisms for

sources of hazardous air pollutants to avoid classification as major

sources are available (See footnote 1).

II. Summary and Analysis

On August 26, 1994, the West Virginia Department of Environmental

Protection (WVDEP) submitted for EPA approval a revision to the West

Virginia State Implementation Plan (SIP) regarding the issuance of

minor new source review and federally enforceable state operating

permits. This SIP revision, entitled 45CSR13- ''Permits for

Construction, Modification, Relocation and Operation of Stationary

Sources of Air Pollutants, Notification Requirements, Temporary

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

replaces 45CSR13 ``Permits for Construction, Modification, or

Relocation of Stationary Sources of Air Pollutants, and Procedures for

Registration and Evaluation'', effective June 1, 1974, which was

approved into the SIP November 10, 1975. On September 5, 1996, the West

Virginia Department of Environmental Protection (WVDEP) submitted a

letter clarifying that West Virginia also requests EPA approval under

CAA section 112(l) of the 45CSR13 program submitted on August 26, 1994.

In order to evaluate the approvability of West Virginia's submittal

as a SIP revision, the changes from the SIP approved version of 45CSR13

must meet all applicable requirements (procedural and substantive) of

40 CFR part 51 and the CAA. EPA has reviewed this SIP revision package

in accordance with the completeness criteria described in section

110(k)(1) and 40 CFR part 51, appendix V and has found it to be

administratively and technically complete. The technical support

document (TSD) prepared in support of this proposed action contains a

detailed analysis of West Virginia's SIP submittal. The formal SIP

submittal, completeness determination and TSD are available for review

as part of the public docket at the times and locations listed in the

ADDRESSES section of this document.

EPA's requirements for SIP approval applicable to minor new source

review permitting programs are established in part 51, subpart I--

Review of New Sources and Modifications, Sec. Sec. 51.160. through

51.164. Other sections of subpart I, applicable only to new sources and

modifications which are major, do not apply and are thus not addressed

in this analysis. 2West Virginia's SIP submittal must also

satisfy the criteria discussed in the June 28, 1989 Federal Register

(54 FR 27274) in order for EPA to consider operating permits issued

pursuant to 45CSR13 to be federally enforceable on a permanent basis.

3These same criteria, in conjunction with the statutory

requirements of section 112(l)(5) of the Act, are used to evaluate the

approvability of the 45CSR13 program for the purpose of creating

federally enforceable permit conditions for sources hazardous air

pollutants (HAPs).

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\2\ West Virginia has developed separate rules to meet the

requirements of subpart I applicable to major sources, namely,

45CSR14 - ``Permits for Construction and Major Modification of Major

Stationary Sources of Air Pollution for the Prevention of

Significant Deterioration'' and 45CSR19 - ``Requirements for Pre-

Construction Review, Determination of Emissions Offsets for Proposed

New or Modified Sources of Air Pollutants and Emission Trading for

Intrasource Pollutants''.

\3\ In the memorandums entitled ``Release of Interim Policy on

Federal Enforceability of Limitations on Potential to Emit''

(January 22, 1996) and ``Options for Limiting the Potential to Emit

(PTE) of a Stationary Source under Section 112 and Title V of the

Clean Air Act (Act)'' (January 25, 1995), EPA announces a temporary

recognition of practically enforceable state limits on potential

emissions as being federally enforceable.

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A. Minor New Source Review

The SIP revision represents comprehensive changes from the SIP

approved version of West Virginia's minor new source review program.

For purposes of efficiency, the discussion and analysis of these

changes are grouped according to the following categories:

applicability, permit issuance procedures (including public

participation), and program features and nomenclature.

1. Applicability

West Virginia's submittal exempts constructions, modifications, and

relocations which are subject to the major preconstruction permit

requirements of West Virginia's 45CSR14 (PSD) or 45CSR19 (non-

attainment NSR) programs from minor new source review permitting

requirements. The purpose of this exemption is to avoid duplicative

permitting obligations for the construction and relocation of new major

sources, and for sources which undergo major modifications since such

activities are subject to the State's major new source review

permitting programs. The submittal also exempts a category of sources

referred to as ``Indirect Affected sources'' from West Virginia's minor

new source review program. Indirect sources are facilities such as

parking lots, highway projects, and airport constructions or expansions

which attract or potentially attract mobile sources of pollution. The

Federal requirement for state SIPs to include ``indirect source review

programs'' has been removed (see CAA section 110(a)(5)). West

Virginia's submittal also attempts to exempt sources which have been

issued operating permits pursuant to Title V of the Clean Air (herein

after referred to as ``Title V sources'') from minor new source review.

If approved into the SIP, such an exemption will apply to virtually all

major sources in West Virginia. Although constructions and

modifications at Title V sources are subject to the permit revision

procedures of West Virginia's Title V permitting program, such

procedures do not replace the Federal requirements for new source

review (major or minor) applicable to such activities. The effect of

this exemption is to allow constructions of new non-major sources and

non-major modifications at Title V sources to proceed without

considering the impact of such activities on the State's control

strategy (including applicable PSD increments) or ability to attain or

maintain national ambient air quality standards (NAAQS). Accordingly,

West Virginia is unable to prevent activities at Title V sources which

result in violations of the State's control strategy, or interfere with

attainment or maintenance of the NAAQS, a fundamental requirement of

new source review programs.

In addition to the categorical exemptions discussed above, West

Virginia's submittal changes applicability to minor new source review

in other ways. The program uses the terms ``stationary source'' and

``modification'' to define the scope of activities which are subject to

review. Both these terms are defined with emissions levels determining

what qualifies as either a ``stationary source'' or a ``modification''.

Unless subject to an emissions control rule promulgated by the

Commission, sources with emissions or potential emissions below the

specified ``stationary source'' emissions levels are not considered to

be ``stationary sources''. West Virginia employs a (six) 6 lb/hr

threshold for sources of VOC or any of the pollutants for which the

State has promulgated an ambient air quality standard (SO2, PM10, NO2,

CO, O3 and non-methane

[[Page 5486]]

hydrocarbons). The 6 lb/hr size threshold for stationary sources, a

component of West Virginia's SIP since the 1970's, now also applies to

sources of VOCs, a category of pollutants which are regulated as ozone

precursors. For sources of hazardous or toxic air pollutants (HAPS/

TAPS), West Virginia employs a new threshold equal to or above levels

employed in the State's toxic emissions control rule(45CSR27). These

levels range from (eight-tenths) 0.8 lbs/yr (Beryllium) to (ten

thousand)10,000 lbs/yr (Allyl Chloride, Trichloroethylene). Lead and

lead compounds are defined as HAPS/TAPS with a (twelve thousand) 12,000

lbs/year threshold.

Accordingly, West Virginia's minor new source review program

captures all non-major sources which are subject to State emission

control rules, and other non-major sources with potential or actual

emissions above established thresholds. Similarly, physical or

operational changes at stationary sources which result in emissions

increases below the ``modification'' emission levels are not considered

to be ``modifications''. Where the SIP-approved version of 45CSR13

contained no such emission levels to define modifications, West

Virginia's submittal employs a modification threshold of (two) 2 lbs/hr

or (five) 5 tons/year or more of any pollutant which is not a toxic or

hazardous air pollutant. For sources with potential emissions of

hazardous or toxic air pollutants equal to or greater than the levels

specified in West Virginia's toxic emissions control rule (45CSR27),

any change which results in an emissions increase is considered to be a

modification and subject to minor new source review. Changes at sources

with potential emissions below the 45CSR27 levels are also considered

to be modifications if the emissions increase would result in total

emissions at the source above the 45CSR27. Regardless of the pollutants

involved, the program requires changes which result in emission

increases below the modification emissions thresholds to be reported to

the State. On a case-by-case basis, the State may determine that such

activities must also be permitted. This notification requirement for

modifications provides an additional layer of protection which will

enable the State to determine whether small changes at sources will

interfere with the attainment and maintenance of the NAAQS, or violate

the control strategy (including PSD increments).

Similar to the Federal definition of the term ``major

modification'' in 40 CFR part 51, the definition of ``modification'' in

45CSR13 exempts certain types of actions. As a new exemption, section

2.18.d.A. precludes from being considered a modification the

installation or replacement of air pollution control equipment if the

new equipment is at least as effective as the equipment replaced and no

new air pollutant is discharged from its installation. EPA believes

that this exemption employs adequate safeguards for purposes of West

Virginia's minor new source review program. West Virginia's program

uses the terms ``major stationary source'' and ``major modification''

to establish the upper limits of the scope of the 45CSR13 program.

Identical terms are used to determine applicability in West Virginia's

major pre-construction permitting programs, 45CSR14 (PSD) and 45CSR19

(non-attainment NSR). 4Since 45CSR13 exempts construction

and modification-related activities which are subject to either 45CSR14

or 45CSR19, it is critical that these programs define ``major

stationary source'' and ``major modification'' consistently to avoid

confusion when determining which pre-construction permitting program

applies in a given instance. 5The 45CSR13 definition of the

term ``Major modification'' references the definitions continued in

45CSR14 and 45CSR19 and thus inherently satisfies EPA's concern about

definition parity. While the 45CSR13 definition of ``Major stationary

source'' is consistent with the definitions found in 45CSR14 and

45CSR19 in terms of emissions thresholds, the 45CSR13 definition does

not delineate when fugitive emissions need to be included as is done in

the major permit program rules. Without such a distinction, the 45CSR13

definition could be interpreted to require fugitive emissions to be

included in all cases so that certain sources of fugitive emissions are

``major sources'' under 45CSR13 but not under 45CSR14 and 45CSR19. This

presents a consistency problem since such sources would be exempt from

all new source review requirements. To address this issue, West

Virginia submitted a written clarification indicating that, with

respect to the inclusion of fugitive emissions in major stationary

source determinations, the definition of ``Major stationary source'' in

45CSR13 will be interpreted consistently with 45CSR14 and 45CSR19.

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\4\ The definition of the terms ``major stationary'' source and

``major modification'' in West Virginia's 45CSR14 (PSD) and 45CSR19

(non-attainment NSR), must be consistent with the federal

definitions found in section 40 CFR 51.165 (non-attainment New

Source Review(NSR)) and Sec. 51.166 (Prevention of Significant

Deterioration (PSD)).

\5\ The issue of consistency of terms is addressed in the

proposed revisions to title 40 of the Code of Federal Regulations

(40 CFR) parts 51, 70 and 71 published in the Federal Register on

August 31, 1995 (see 60 FR 45564). In this document, EPA proposes

rulemaking to clarify that all of the terms used in Sec. Sec. 51.160

through 51.164 have the same meaning as provided elsewhere in

subpart I of part 51, or in the Act.

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2. Permit Issuance Procedures

The procedures for permit issuance applicable to the issuance of

construction, modification, relocation, and existing stationary source

operating permits have been enhanced to satisfy the requirements of

Sec. 51.161 for new source review programs and the criteria set forth

by EPA on June 28, 1989 (57 FR 27274) for federally enforceable state

operating permit programs (FESOPPs). Other changes affecting permit

issuance include the addition of new provisions for conducting

completeness evaluations of permit applications, revised deadlines for

permit issuance, and the removal of outdated source registration

provisions. Provisions allowing sources to construct or modify by

default have also been removed.

The revised procedures also allow the Chief to issue temporary

permits which authorize experimental product or process changes for up

to six (6) months (which may be extended in writing up to twelve (12)

additional months). In acting to issue or deny an application for a

temporary permit, the Chief is required to provide a fifteen (15) day

public comment period on the temporary permit application.

EPA recognizes that, in some cases, a full-scale six (6) month

minor new source review permit issuance process for proposed

experimental product or process changes may be impracticable and/or

unnecessarily burdensome. EPA also recognizes that states should have

the ability to limit the public participation for certain minor new

source permitting actions. Since states can exempt certain activities

from minor NSR based on de minimis or administrative necessity grounds

in accordance with the criteria set forth in Alabama Power Co. V.

Costle, 636 F.2d 323(D.C. Cir. 1979), it follows that states should

also be able to provide partial or full exemption from the full public

process requirements of Sec. 51.160(e). Any such limitation on the full

public participation requirements of Sec. 51.160(e), however, should be

applied consistent with the environmental significance of the activity.

6Although

[[Page 5487]]

temporary permits are issued only in specific instances and for limited

periods of time, such conditions do not characterize situations of an

inherently less environmentally significant nature. The effect of the

temporary permitting procedure is that environmentally significant

constructions or modifications may be authorized on a temporary basis

without adequate opportunity for public participation. 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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\6\ On August 31, 1995, EPA proposed a new paragraph (c) in

Sec. 51.161 to clarify that, except for certain specified

activities; state programs may vary procedures for, and timing of,

public review in light of the environmental significance of the

activity (see 60 FR 45564).

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3. Program Features and Nomenclature

The revisions to 45CSR13 include new administrative provisions for

issuing general permits authorizing construction or relocation of a

category of sources by the same operator, or involving the same or

similar precesses or pollutants, in accordance with the terms and

conditions specified in the general permit. The revised 45CSR13 also

establishes new provisions allowing for permit transfers after the

Chief determines that the proposed permittee has all necessary permit

responsibility. The new permittee must certify that a complete copy of

the permit application and permit has been reviewed, and that all terms

and conditions in the permit and operating parameters contained in the

application will be adhered to. The Chief must also be provided a

written agreement between the existing and new permittee with regard to

the specific transfer date and the extent of permit responsibility

between them. The revised 45CSR13 also includes a new provision for

permit cancellation requiring permit holders to submit requests for

cancellation in writing. The cancellation provision specifies that no

permit cancellation shall become effective until the permittee and EPA

have been given at least 30 days written notice. The cancellation

provision further specifies that permit cancellation will not excuse

any violation of permit terms or conditions prior to the effective date

of the permit cancellation.

The revisions to 45CSR13 include the addition of several new terms

and the modification of existing terms which are defined in a manner

consistent with the program's proper implementation and with the

corresponding definitions of Sec. Sec. 51.165 and 51.166 applicable to

major new source review permitting programs. The revisions also delete

several outdated terms such as ``indirect affected source''. These

changes update the programs definitions consistent with the current

terminology employed by the Act and with EPA's regulations.

B. Federally Enforceable State Operating Permit Programs

On June 28, 1989 EPA amended the definition of ``federally

enforceable'' to clarify that terms and conditions contained in state-

issued operating permits are federally enforceable provided that the

state's operating permits program is approved into the SIP under

section 110 of the CAA as meeting certain criteria, and provided that

the permit conforms to the requirements of the approved program (54 FR

27282). The five criteria set forth by EPA require state programs to:

(a) Be approved into the SIP; (b) impose legal obligations to conform

to the permit limitations; (c) provide for limits that are enforceable

as a practical matter; (d) issue permits through a process that

provides for review and an opportunity for comment by the public and by

EPA; and (e) ensure that there will be no relaxation of otherwise

applicable Federal requirements. West Virginia's revised 45CSR13

includes a new ``opt-in'' provision where sources not otherwise

required to be permitted for purposes of new source review may

voluntarily apply for an existing stationary source operating permit.

This provision was added so that 45CSR13 could serve dually as West

Virginia's minor new source review program and as its FESOPP. The

procedures for issuing existing stationary source operating permits

under 45CSR13 are identical to those followed for issuing minor new

source review permits. West Virginia's revised 45CSR13 program meets

the June 28, 1989 criteria by ensuring that permit terms are permanent,

quantifiable, and practically enforceable and by providing adequate

notice and comment to both EPA and the public. However, since such

requirements must be satisfied on a permit by permit basis, EPA may

deem individual permits which contain terms and conditions that are not

quantifiable or practically enforceable not ``federally enforceable''.

Regarding ``permanence'', section 11.3 of West Virginia's rule provides

that the issuance of a Title V operating permit will operate to revoke

an existing stationary source operating permit. EPA expects that many

of the existing stationary source operating permits issued are to

sources which are seeking to avoid Title V permitting obligations. For

these sources, the ``automatic revocation'' provision will not be

triggered. However, some sources may rely on limitations on potential

emissions established in existing stationary source operating permits

to avoid other ``major source'' program requirements such as major NSR,

PSD, or Title III MACT standards and will trigger the ``automatic

revocation'' provisions. For these sources, the superseding Title V

permit will need to address such limitations as applicable requirements

(similar to how minor NSR permit conditions are addressed in the Title

V permit), or else place the source at risk for violating applicable

``major source'' program requirements. EPA is assured that sources that

obtain limitations on potential emissions in existing stationary source

operating permits will keep such limitations in effect, so as to never

be in violation of ``major source'' permitting or other program

requirements. EPA interprets section 11.3 to authorize supersession of

existing stationary source operating permits only, and not

construction, modification or relocation permits. The TSD provides a

thorough analysis of the West Virginia's 45CSR13 program against EPA's

June 28, 1989 criteria.

C. Federally Enforceable Permit Conditions for Hazardous Air Pollutants

West Virginia's revised 45CSR13 defines the term ``regulated air

pollutant'' to include nineteen (19) hazardous/toxic pollutants which

are regulated by the State's air toxic rule (45CSR27), and ``..any

other pollutants subject to an emissions standard promulgated by the

Commission including mineral acids in 45CSR7.'' West Virginia has

adopted specific regulations which incorporate Federal National

Emissions Standards for Hazardous Air Pollutants (NESHAPS) promulgated

at 40 CFR parts 61 and 63 by reference. West Virginia updates these

authorities in State regulations on an annual basis. EPA interprets the

45CSR13 definition of ``regulated air pollutant'' to provide the

necessary authority for 45CSR13 permits to contain conditions on HAPs

which are regulated by 40 CFR parts 61 and 63 NESHAPS and which have

been adopted into West Virginia's regulations. On September 5, 1996,

the West Virginia Department of Environmental Protection (WVDEP)

submitted a letter clarifying that West Virginia also requests EPA

approval under section 112(l) of the 45CSR13 program submitted on

August 26, 1994.

EPA approval of 45CSR13 program under section 112(l) of the Act is

necessary to extend West Virginia's authority under section 110 of the

Act to include the authority to create federally enforceable limits on

the potential to emit HAPs. EPA has determined that the five approval

criteria for approving FESOPPs into the

[[Page 5488]]

SIP, as specified in the June 28, 1989 Federal Register notice, are

also appropriate for evaluating and approving programs under section

112(l). Although the June 28, 1989 notice did not address HAPs, this is

because it was written prior to the 1990 amendments to section 112 of

the CAA. EPA believes that the use of the same criteria for evaluating

programs for both criteria and hazardous pollutants is appropriate

since the approval criteria are not based or dependent on pollutant,

but on general program elements which must be present for the program

to be deemed minimally approvable by EPA. Hence, the five criteria

discussed above are applicable to FESOPP approvals under section 112(l)

as well as under section 110.

In addition to meeting the criteria discussed above, state programs

must meet the statutory criteria for approval under section 112(l)(5)

of the CAA. This section allows EPA to approve a program only if it:

(1) Contains adequate authority to assure compliance with any Section

112 standard or requirement; (2) provides for adequate resources; (3)

provides for an expeditious schedule for assuring compliance with

Section 112 requirements; and (4) is otherwise likely to satisfy the

objectives of the CAA. EPA plans to codify the approval criteria for

programs limiting the potential to emit of HAPs through amendments to

Subpart E of 40 CFR part 63, the regulations promulgated to implement

section 112(l) of the Act. (See 58 FR 62262). EPA currently anticipates

that these criteria, as they apply to FESOPP programs, will mirror

those set forth in the June 28, 1989 notice, with the addition that the

State's authority must extend to HAPs instead of or in addition to

VOC's and PM10. The EPA currently anticipates that FESOPP programs that

are approved pursuant to Section 112(l) prior to the planned Subpart E

revisions will have had to meet these criteria, and hence will not be

subject to any further approval action.

EPA believes it has the authority under section 112(l) to approve

programs to limit potential to emit of HAPs directly under section

112(l) prior to this revision to Subpart E. Section 112(l)(5) requires

EPA to disapprove programs that are inconsistent with guidance required

to be issued under section 112(l)(2). This might be read to suggest

that the ``guidance'' referred to in section 112(l)(2) was intended to

be a binding rule. Even under this interpretation, EPA does not believe

that section 112(l) requires this rulemaking to be comprehensive. That

is, it need not address every possible instance of approval under

section 112(l). EPA has already issued regulations under section 112(l)

that would satisfy any section 112(l)(2) requirement for rulemaking.

Given the timing problems posed by impending deadlines set forth in

``maximum achievable control technology'' (MACT) emission standards

under section 112 and for submittal of Title V permit applications, the

EPA believes it is reasonable to read section 112(l) to allow for

approval of programs to limit potential to emit prior to promulgation

of a rule specifically addressing this issue.

West Virginia's satisfaction of the criteria published in the

Federal Register of June 28, 1989, has been discussed above. In

addition, West Virginia's 45CSR13 program meets the statutory criteria

for approval under 112(l)(5). EPA believes West Virginia's 45CSR13

program contains adequate authority to assure compliance with section

112 requirements since it does not provide for waiving any section 112

requirement(s). Sources would still be required to meet section 112

requirements applicable to non-major sources. Regarding adequate

resources, West Virginia subjects sources required to be permitted

under 45CSR13 to the State's fee regulation, 45CSR22 ``Air Quality Fee

Program''. Furthermore, EPA believes that West Virginia's 45CSR13

program provides for an expeditious schedule for assuring compliance

because it allows a source to establish a voluntary limit on potential

to emit and avoid being subject to a Federal Clean Air Act requirement

applicable on a particular date. Nothing in West Virginia's 45CSR13

program would allow a source to avoid or delay compliance with a

Federal requirement if it fails to obtain the appropriate federally

enforceable limit by the relevant deadline. Finally, West Virginia's

45CSR13 program is consistent with the objectives of the Section 112

program because its purpose is to enable sources to obtain federally

enforceable limits on potential to emit to avoid major source

classification under section 112. EPA believes that this purpose is

consistent with the overall intent of section 112. The Technical

Support Document contains a more thorough analysis of West Virginia's

45CSR13 program against the statutory criteria for approval under

112(l)(5).

EPA is soliciting public comments on the issues discussed in this

document or on other relevant matters. These comments will be

considered before taking final action. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the EPA Regional office listed in the Addresses section of

this document.

III. Proposed Action

EPA is proposing to disapprove the exemption from minor new source

review for sources issued Title V permits as such an exemption does not

comport with the Federal requirements of 40 CFR 51.160. EPA is also

proposing to disapprove the new provisions governing the issuance of

temporary construction or modifications permits as such provisions do

not satisfy the Federal requirements for public participation of 40 CFR

51.161. EPA is proposing to approve all other portions of 45CSR13 as a

revision to the West Virginia SIP. Such an action will enable EPA to

approve and make federally enforceable the many updates and

improvements from the SIP approved version of the program, and at the

same time prevent serious relaxations of the SIP related to the

program's scope and public participation requirements.

EPA is proposing to approve 45CSR13 under section 110 of the Act

because the program meets the June 28, 1989 approval criteria for

federally enforceable state operating permit programs. For this reason

and because the program meets the statutory requirements of section

112(l)(5) of the Act, EPA is also proposing approval of West Virginia's

45CSR13 program pursuant to section 112(l) of the Act for the purpose

of limiting the potential to emit of HAPs. Such an action will confer

Federal enforceability status to existing stationary source operating

permits which are issued to sources of criteria pollutants or HAPs in

accordance with 45CSR13 and the five June 28, 1989 criteria, including

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

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future 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 authority.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare

[[Page 5489]]

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 sections 110 and subchapter I, part D of the

CAA 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).

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 requirements. Therefore, EPA certifies 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 requirements.

C. 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

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 proposed 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

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

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

The Administrator's decision to approve or disapprove this revision

to the West Virginia SIP for minor sources will be based on whether it

meets the requirements of section 110(a)(2)(A)-K) and of the Clean Air

Act, as amended, and EPA regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control.

Authority: 42 U.S.C. 7401 et seq.

Dated: January 22, 1998.

W. Michael McCabe,

Regional Administrator, Region III.

[FR Doc. 98-2615 Filed 2-2-98; 8:45 am]

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