[Federal Register: February 28, 2003 (Volume 68, Number 40)]
[Rules and Regulations]
[Page 9559-9561]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe03-27]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WV055-6025a; FRL-7449-4]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Permits for Construction, Modification, Relocation and
Operation of Stationary Sources of Air Pollutants, Notification
Requirements, Administrative Updates, Temporary Permits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
West Virginia State Implementation Plan (SIP). The revisions change
portions of West Virginia's minor new source review and existing
stationary source operating permit program. Specifically, today's
action converts the partial approval and partial disapproval of West
Virginia's minor new source review permit program, published on January
13, 2000 to a full approval. EPA's full approval of the revision to the
West Virginia SIP is based on the findings that the deficiencies that
formed the basis for the partial approval/disapproval of West
Virginia's minor new source review permit program have been corrected
in this SIP revision. The rule, as submitted, is in accordance with the
requirements of the Clean Air Act.
DATES: This rule is effective on April 29, 2003 without further notice,
unless EPA receives adverse written comment by March 31, 2003. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Written comments should be mailed to Makeba A. Morris,
Chief, Permits and Technical Assessment Branch, Mail Code 3AP11, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. 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, 1301 Constitution Avenue, NW, Room B108, Washington,
DC 20460; and West Virginia Department of Environmental Protection,
Division of Air Quality, 7012 MacCorkle Avenue, SE., Charleston, WV
25304-2943.
FOR FURTHER INFORMATION CONTACT: Michael I. Ioff, P.E., (215) 814-2166,
or by e-mail at ioff.mike@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On January 13, 2000 (65 FR 2042), EPA published a final rule notice
(FRN) regarding West Virginia's minor new source review and existing
stationary source operating permit program. The FRN approved in part,
and disapproved in part, changes to West Virginia's minor new source
review permit program as a revision to the West Virginia SIP. With the
exception of the two separate provisions included in West Virginia's
submission, the FRN approved 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 FRN
also approved West Virginia's minor new source review and existing
stationary source operating permit program under section 112(l) of the
Act as meeting the statutory criteria for state permit programs that
can limit a source's potential to emit hazardous air pollutants (HAPs).
Concurrently, the FRN disapproved two separate provisions included
in West Virginia's minor new source review and existing stationary
source operating permit program. Specifically, the FRN disapproved an
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 did not comport with the federal
requirements of 40 CFR 51.160 regarding the scope of the program. In
addition, the FRN disapproved provisions governing the issuance of
temporary construction or modification permits with only a 15-day
public comment period as such provisions did not satisfy the Federal
requirements for a 30-day comment period required by 40 CFR 51.161(b).
Summary of SIP Revision
To address the deficiencies of West Virginia Regulation CSR13
described in the January 13, 2000 rulemaking action, the State of West
Virginia submitted on September 21, 2000, a formal revision to its SIP.
The submitted SIP, which consists of changes to West Virginia
Regulation CSR13, applies statewide and corrects the deficiencies that
formed the basis for the partial disapproval of West Virginia's minor
new source review and existing stationary source operating permit
program. In order to correct the deficiencies, the exemption from minor
new source review for sources that have been issued permits under the
State's Federally-approved major source operating permit program was
removed. In addition, the provision governing the issuance of temporary
construction or modification permits with a 15-day public comment
period was revised to provide for a 30-day public comment period in
order to be consistent with the federal requirements for public
participation found at 40 CFR 51.161(b).
As part of its September 21, 2000 SIP revision, West Virginia also
submitted a number of additional revisions intended to, among other
things, streamline the permitting process. Those revisions include
changes to the construction and modification thresholds; creation of a
``de-minimis'' source list; changes in the definitions of volatile
organic compounds (VOCs) and HAPs; and, clarification of the definition
of when ``construction'' commences. Also, West Virginia Regulation
CSR13 was revised to incorporate an administrative process
[[Page 9560]]
for making relatively minor permit revisions. The revised Regulation
CSR13 contains modified public notice procedures, such as: eliminating
the two-step notice from the previous regulation; establishing a 30-day
notice for certain actions and a 45-day notice for the remainder; and,
additional notice methods which may be required by the State. The
revised regulation also provides further clarification regarding HAPs
and toxic air pollutants and revised procedures for temporary permits.
EPA has reviewed these revisions to West Virginia Regulation CSR13 and
find that they are at least as stringent as the corresponding
requirements of the Clean Air Act.
II. Final Action
EPA is approving this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment from either the public or the regulated community.
However, in the ``Proposed Rules'' section of today's Federal Register,
EPA is publishing a separate document that will serve as the proposal
to approve the SIP revision if adverse comments are filed. This rule
will be effective on April 29, 2003 without further notice unless EPA
receives adverse comment by March 31, 2003. If EPA receives adverse
comment, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
III. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, to approve the West Virginia 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 April 29, 2003. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: January 31, 2003.
Donald S. Welsh,
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.
[[Page 9561]]
Subpart XX--West Virginia
2. Section 52.2520 is amended by adding paragraph (c)(52) to read
as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
(52) Revisions to the West Virginia Regulations 45CSR13--Permits
for Construction, Modification, Relocation and Operation of Stationary
Sources of Air Pollutants, Notification Requirements, Administrative
Updates, Temporary Permits, General Permits, and Procedures for
Evaluation, submitted on September 21, 2000 by the West Virginia
Department of Environmental Protection:
(i) Incorporation by reference.
(A) Letter of September 21, 2000, from the West Virginia Department
of Environmental Protection transmitting revision to West Virginia
Regulation 45CSR13.
(B) West Virginia Regulations 45CSR13--Permits for Construction,
Modification, Relocation and Operation of Stationary Sources of Air
Pollutants, Notification Requirements, Administrative Updates,
Temporary Permits, General Permits and Procedures for Evaluation,
effective June 1, 2000.
(ii) Additional Material--Remainder of the State submittal
pertaining to the revisions listed in paragraph (c)(52)(i) of this
section.
[FR Doc. 03-4629 Filed 2-27-03; 8:45 am]
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