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Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Ambient Air Quality Standards

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Final rule.


EPA is approving a State Implementation Plan (SIP) revision submitted by the State of West Virginia. This revision establishes and requires ambient air quality standards for sulfur oxides, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead equivalent to the national primary and secondary ambient air quality standards. This action is being taken under the Clean Air Act (CAA).


Effective Date: This final rule is effective on March 12, 2009.


EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2008-0694. All documents in the docket are listed in the website. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (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 through or in hard copy 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. 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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Gobeail McKinley, (215) 814-2033, or by e-mail at

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I. Background

On October 28, 2008 (73 FR 63915), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. The NPR proposed approval of West Virginia's ambient air quality standards for sulfur oxides, particulate matter (PM), carbon monoxide, ozone, nitrogen dioxide, and lead equivalent to the national primary and secondary ambient air quality standards.

II. Summary of SIP Revision

On April 25, 2008, the State of West Virginia submitted as a SIP revision Rule 45CSR8—Ambient Air Quality Standards, which updates and incorporates all six criteria pollutants to be equivalent to the national ambient air quality standards. The revision repeals rules 45CSR9—Ambient Air Quality Standards for Carbon Monoxide and Ozone and 45CSR12—Ambient Air Quality Standard for Nitrogen Dioxide, and moves these ambient air quality standards into Rule 45CSR8. The revision includes a correction of the sulfur dioxide annual primary standard from 0.003 to 0.030 parts per million (ppm), removes the annual PM10 standard, and incorporates the annual PM2.5 standard, the 24-hour PM2.5 standard of 35 μg/m3, the primary and secondary standards for lead, and the primary and secondary 1-hour and 8-hour ozone standards. The SIP revision includes the revocation of the 1-hour ozone standard except for Berkeley and Jefferson Counties and it identifies the 1-hour ozone maintenance areas. The SIP revision also adds new reference conditions for PM2.5 and measurement methods for PM2.5 and lead. Other specific requirements of West Virginia's ambient air quality standards and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

III. Final Action

EPA is approving Rule Section 45CSR8—Ambient Air Quality Standards as a revision to the West Virginia SIP. Start Printed Page 6553

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action.

  • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
  • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
  • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
  • 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);
  • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
  • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 130 Section 45 (62 FR 19885, April 23, 1997);
  • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
  • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
  • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action 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 April 13, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 which establishes ambient air quality standards in West Virginia 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: December 15, 2008.

William T. Wisniewski,

Acting 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 the entries for [45 CSR] Series 8, Sections 45-8-1 through 45-8-5; adding entries for [45 CSR] Series 8, Sections 45-8-6 and 45-8-7; and removing the entries for [45 CSR] Series 9 and [45 CSR] Series 12. The amendments read as follows:

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Identification of plan.
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(c) * * *

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
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[45 CSR] Series 8 Ambient Air Quality Standards
Section 45-8-1General6/1/0802/10/09 [Insert page number where the document begins]Added language to repeal provisions contained in Sections 45CSR9 and 45CSR12.
Section 45-8-2Anti-Degradation Policy6/1/0802/10/09 [Insert page number where the document begins]Added definitions for: Administrator, ambient air, clean air act, equivalent method, ozone, person, PM2.5, and reference methods.
Section 45-8-3Definitions6/1/0802/10/09 [Insert page number where the document begins]
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Section 45-8-4Ambient Air Quality Standards6/1/0802/10/09 [Insert page number where the document begins]Added ambient air quality standards for PM2.5, carbon monoxide, nitrogen dioxide, ozone and lead.
Section 45-8-5Methods of Measurement6/1/0802/10/09 [Insert page number where the document begins]Added reference methods for PM2.5, carbon monoxide, nitrogen dioxide, ozone and lead.
Section 45-8-6Reference Conditions6/1/0802/10/09 [Insert page number where the document begins]New Section.
Section 45-8-7Inconsistency Between Rules6/1/0802/10/09 [Insert page number where the document begins]
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[FR Doc. E9-2359 Filed 2-9-09; 8:45 am]