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Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Emission Reductions To Meet Phase II of the Nitrogen Oxides (NOX

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Environmental Protection Agency (EPA).


Direct final rule.


EPA is taking direct final action to convert a conditional approval in the West Virginia State Implementation Plan (SIP) to a full approval. The SIP revision pertains to nitrogen oxides (NOX) emission reductions required in West Virginia to meet Phase II of the NOX SIP Call. In order to meet the Phase II submission due date, the West Virginia Department of Environmental Protection (WVDEP) adopted its Phase II regulation under its emergency rule procedures. EPA granted conditional approval of the emergency rule contingent upon the WVDEP adopting a permanent rule with an effective date no later than the June 2, 2006 sunset date of its emergency rule and submitting the permanent rule as a formal SIP revision to EPA by July 1, 2006. West Virginia has met all the terms of the conditional approval by adopting its permanent rule with an effective date of May 1, 2006, and submitting the permanent rule to EPA before July 1, 2006. EPA is approving this revision to West Virginia's SIP in accordance with the requirements of the Clean Air Act.


This rule is effective on November 27, 2006 without further notice, unless EPA receives adverse written comment by October 30, 2006. 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.


Submit your comments, identified by Docket ID Number EPA-Start Printed Page 56882R03-OAR-2006-0728 by one of the following methods:

A. Follow the online instructions for submitting comments.

B. E-mail:

C. Mail: EPA-R03-OAR-2006-0728, Makeba Morris, Chief, Air Quality Planning Branch Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2006-0728. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through or e-mail. The Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street SE., Charleston, WV 25304.

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Marilyn Powers, (215) 814-2308, or by e-mail at

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I. Background

On October 20, 2005 (70 FR 61104), EPA published a Notice of Proposed Rulemaking (NPR) proposing to grant conditional approval of West Virginia's emergency regulation 45CSR1 to control NOX emissions from large stationary internal combustion engines in the State. No comments were received by EPA and on January 11, 2006 (71 FR 1696), EPA finalized the conditional approval. EPA's rationale for conditionally approving West Virginia's emergency rule as well as a summary of the requirements of Phase II of the NOX SIP Call were provided in the October 20, 2005 NPR, and will not be restated here. In the January 11, 2006 rulemaking, EPA conditioned full approval contingent upon the WVDEP adopting a permanent rule that corresponds to emergency rule 45CSR1, with an effective date prior to the sunset date of the emergency rule, and submitting the permanent rule as a SIP revision to EPA by July 1, 2006. On May 22, 2006, as amended on June 16, 2006, WVDEP submitted to EPA a revision to its SIP to satisfy the conditional requirements.

II. Summary of SIP Revision

On May 22, 2006, the WVDEQ submitted a formal revision to its SIP, and on June 16, 2006 amended the revision to include documents that were inadvertently omitted. The SIP revision consists of the State's fully-adopted permanent rule 45CSR1 which became effective on May 1, 2006, and which immediately superseded and replaced its emergency rule.

III. Final Action

West Virginia has corrected the deficiencies identified by EPA in its conditional approval, and has satisfied all the terms of the conditional approval. EPA is, therefore, converting its conditional approval of the West Virginia emergency rule 45CSR1 to a full approval of its permanent rule 45CSR1.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. 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 November 27, 2006 without further notice unless EPA receives adverse comment by October 30, 2006. 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.

IV. 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 (Pub. L. 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 Start Printed Page 56883relationship 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 requirement, 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 must be filed in the United States Court of Appeals for the appropriate circuit by November 27, 2006. 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 to convert West Virginia's NOX SIP Call Phase II rule from a conditional approval to a full approval may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 52

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Dated: September 20, 2006.

Donald S. Welsh,

Regional Administrator, Region III.

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is amended as follows:

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1. The authority citation for

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

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Subpart XX—West Virginia

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2. In § 52.2520, the table in paragraph (c) is amended by revising entries for [45CSR] Series 1, Sections 1-5, 22, 70-72, 74, and 100, and by adding entries for Sections 89 and 90 to read as follows:

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Identification of plan.
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(c) EPA-Approved Regulations

EPA-Approved Regulations in the West Virginia SIP

State citation [Chapter 16-20 or 45 CSR]Title/subjectState effective dateEPA approval dateAdditional explanation/citation at 40 CFR 52.2565
[45 CSR] Series 1—Control and Reduction of Nitrogen Oxides From Non-Electric Generating Units As a Means to Mitigate Transport of Ozone Precursors
Section 45-1-1General5/1/06
Section 45-1-2Definitions5/1/06
Section 45-1-3Acronyms5/1/06
Section 45-1-4NOX Budget Trading Program Applicability5/1/06
Section 45-1-5Retired Unit Exemption5/1/06
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Section 45-1-22Information Requirements for NOX Budget Permit Applications5/1/06
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Section 45-1-70General Monitoring Requirements5/1/06
Section 45-1-71Initial Certification and Recertification Procedures5/1/06
Section 45-1-72Out of Control Periods5/1/06
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Section 45-1-74Recordkeeping and Reporting5/1/06
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Section 45-1-89Appeal Procedures5/1/06New Section.
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Section 45-1-90Requirements for Stationary Internal Combustion Engines5/1/06New Section.
Section 45-1-100Requirements for Emissions of NOX from Cement Manufacturing Kilns5/1/06
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[Removed and Reserved]
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3. In § 52.2522, paragraph (i) is removed and reserved.

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[FR Doc. E6-15981 Filed 9-27-06; 8:45 am]