**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

**\[EPA-R03-OAR-2006-0528; FRL- \]**

**Approval and Promulgation of Air Quality Implementation Plans; West
Virginia; Amendments to Nonattainment New Source Review (NSR) Air
Quality Permit Program**

**AGENCY**: Environmental Protection Agency (EPA).

**ACTION:** Proposed rule.

**SUMMARY:** Number range CHAPTEREPA is proposing to approve a revision
to the West Virginia State Implementation Plan (SIP). The revision
consists of amendments to West Virginia's existing Nonattainment New
Source Review (NSR) preconstruction air quality permit program. This
action is being taken under the Clean Air Act (CAA or the Act). In a
separate action, EPA will address changes made by West Virginia to its
prevention of significant deterioration (PSD) air quality permit
program, also submitted on December 1, 2005.

**DATES:** Written comments must be received on or before \[[insert date
30 days from date of publication]{.underline}\].

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-2006-0528** by one of the following methods:

A.  [www.regulations.gov](http://www.regulations.gov/). Follow the
    on-line instructions for submitting comments.

B. E-mail: campbell.dave@epa.gov

C. Mail: **EPA- R03-OAR-2006- 0528**, David Campbell, Chief, Permits and
Technical Assessment Branch, Mailcode 3AP11, 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-2006-0528**. EPA\'s policy is that all comments received
will be included in the public docket without change, and may be made
available online at [www.regulations.gov]{.underline}, 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
[www.regulations.gov]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous 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
www.regulations.gov, 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
[www.regulations.gov]{.underline} 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
[www.regulations.gov]{.underline} 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.

**FOR FURTHER INFORMATION CONTACT**: Rosemarie Nino, (215) 814‑3377, or
by e-mail at [nino.rose@epa.gov.]{.underline}

**SUPPLEMENTARY INFORMATION:** The supplementary information is arranged
as follows:

I. Background

II\. Program Review

A. What is being address in this document?

B. What are the program changes that EPA is approving?

III\. Proposed Action

IV\. Statutory and Executive Order Reviews.

**I. Background**

Number range CHAPTEROn December 31, 2002, the U.S. Environmental
Protection Agency (EPA) published revisions to the Federal prevention of
significant deterioration (PSD) and nonattainment new source review
(NSR) regulations (67 FR 80186). These revisions are commonly referred
to as EPA's "NSR Reform" regulations and became effective on March 3,
2003. These regulatory revisions included provisions for baseline
emissions determinations, actual-to-future actual methodology, Plantwide
Applicability Limits (PALs), Clean Units, and Pollution Control Projects
(PCPs). The December 2002 rulemaking action required State and local
permitting authorities to include the NSR Reform measures as minimum
program elements in their State implementation plans (SIP) and to submit
these revisions to EPA by January 2, 2006.

The United States Court of Appeals for the District of Columbia Circuit
ruled in [New York v. EPA]{.underline}, 45 F.3d 3 (D.C. Cir. June 24,
2005) that EPA lacked the authority to promulgate the Clean Unit
provisions, and the Court requested that EPA vacate that portion of the
2002 Federal regulation, codified at 40 CFR 52.21(x), as contrary to the
statute. Also, the Court determined EPA lacked the authority to create
PCP exceptions from NSR and vacated those parts of the 1991 and 2002
rules, codified at 40 CFR 52.21(b)(32) and 52.21(z), as contrary to the
statute.

On December 1, 2005, EPA Region III received a revision to the West
Virginia State Implementation Plan (SIP) from the West Virginia
Department of Environmental Protection (WVDEP). This SIP revision
consists of Legislative Rule 45 CSR 19 - Permits for Construction and
Major Modification of Major Stationary Sources of Air Pollution Which
Cause or Contribute to Nonattainment adopted by the State of West
Virginia on April 8, 2005 and effective June 1, 2005. The State adopted
the regulation in order to meet the relevant plan requirements of 40 CFR
51.165. On December 22, 2005, WVDEP provided supplemental materials
consisting of a letter and an attached one-page table requesting that
EPA exclude from its December 1, 2005 request for SIP approval the
provisions of 45 CSR 19, as set forth in the attached table, that
pertain to "Clean Units" and "Pollution Control Project" in order to
ensure that their federally-approved regulations are consistent with the
United States Court of Appeals for the District of Columbia Circuit's
June 24, 2005 ruling.

The WVDEP is seeking approval of amendments in 45 CSR 19 in order to
meet the minimum requirements of 40 CFR 51.165 and the Clean Air Act. It
should be noted that West Virginia also submitted amendments to its
prevention of significant deterioration (PSD) regulations on December 1,
2005. The EPA will address those amendments in a separate rulemaking
action.

**II Program Review**

Number range CHAPTER*A. What is being addressed in this document?*

> 1\. As stated in the December 31, 2002 "NSR Reform" rulemaking, State
> and local permitting agencies were required to adopt and submit
> revisions to their part 51 permitting programs, implementing the
> minimum program elements of that rulemaking no later then January 2,
> 2006 (67 FR 80240). With this submittal, West Virginia requests
> approval of program revisions to satisfy this requirement.

2\. On December 1, 2005, WVDEP submitted regulatory revisions to EPA for
approval. The submitted West Virginia Rule was entitled, "45 CSR 19 -
Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution Which Cause or Contribute to Nonattainment" and
was adopted April 8, 2005 and effective June 1, 2005.

3\. By letter dated December 22, 2005, WVDEP requested that EPA exclude
from its December 1, 2005 request for approval into the SIP those
provisions of 45 CSR 19 that pertain to the Clean Unit and Pollution
Control Project (PCP) provisions of 40 CFR 51.165. The specific
provisions to be excluded were set forth in a table attached to the
letter. The WVDEP made this request in order for its SIP to be
consistent with the United States Court of Appeals for the District of
Columbia Circuit June 24, 2005 ruling which vacated those provisions of
the Federal rules. West Virginia also asked that EPA not act upon the
provisions of 45 CSR 19.17.4 pertaining to the recordkeeping and
reporting requirements for sources that elect to use the
actual-to-projected actual emission test and where there is a
"reasonable possibility" that a project may result in a significant net
emissions increase. The "reasonable possibility" clause of the
corresponding provisions of the Federal rules (51.165(a)(6)) was
remanded to EPA in the June 24, 2005 ruling mentioned above. West
Virginia has instructed EPA to not consider this clause as part of this
SIP revision request. In its December 22, 2005 letter, WVDEP stated its
intent to make any revisions to 45 CSR 19 necessary to incorporate and
implement Federal program revisions once EPA takes further action on the
remand of 40 CFR 51.165(a)(6).

*B. What are the program changes that EPA is approving?*

In its December 2002 regulatory action, EPA dramatically changed many
aspects of the regulations governing the PSD and nonattainment NSR
programs (together, as "NSR"). These changes affected the NSR
applicability requirements to allow sources more flexibility to pursue
modifications of their facilities in order to respond to changes in the
marketplace and to plan for plant improvements. The goals of the changes
were to provide greater regulatory certainty, administrative
flexibility, and permit streamlining, while ensuring the current level
of environmental protection, or more, from the existing program.

West Virginia has fully embraced EPA's NSR reform regulatory revisions
and sought to develop a regulatory program that closely reflects the
Federal NSR regulations and conforms to the minimum requirements of 40
CFR 51.165. As such, West Virginia has translated the Federal NSR
requirements into the regulatory text of 45 CSR 19 in a manner that is
consistent with State regulatory development procedures. Since West
Virginia has sought to incorporate the majority of the Federal
regulatory language into its regulations, the following is an
examination of only those few areas in which the State altered the
Federal regulatory text or approach. A more detailed comparison of 45
CSR 19 to the Federal requirements of 40 CFR 51.165 can be found in the
technical support document (TSD) prepared for this rulemaking.

[Notable Differences in 45 CSR 19 - Permits for Construction and Major
Modification of Major Stationary Sources of Air Pollution Which Cause or
Contribute to Nonattainment:]{.underline}

Number range CHAPTER1. In the provisions for setting the PAL level at 45
CSR 19-23.6, the reference to the "baseline actual emissions"
erroneously cites to Section 2.52 of the rules for purposes of defining
the term "baseline actual emissions." The appropriate citation for this
term is Section 2.9. This typographical error will not adversely affect
implementation of the regulations since the text of 45 CSR 19-23.6
directly identifies "baseline actual emissions" and that term is only
defined at Section 2.9 and the incorrect citation to Section 2.52 does
not confuse or otherwise alter the meaning of 45 CSR 19-23.6.

2\. In a change unrelated to the Federal NSR Reform efforts, West
Virginia changed the definition for "Offset" at 45 CSR 19-2.41 to read
". . . provided that the amount of reduction in emissions at the
existing source (or an emission unit with such sources), is greater on
tons per year basis." The previous definition defined offsets in terms
of pounds per hours and/or tons per year basis. The regulation is now
consistent with the existing Federal requirement because the
determination of necessary offsets must be based on tons per year
reductions. EPA approves this change.

> 3\. In another change unrelated to the Federal NSR Reform efforts,
> West Virginia changed Table 19A to include "Subpart I" ozone
> nonattainment areas along with marginal and moderate nonattainment
> areas for purposes of defining significant net emissions increase
> levels for purposes of NSR applicability. This change is acceptable.

**III. Proposed Action**

Number range CHAPTERBased on the above analysis, EPA has determined that
the amendments to West

Virginia's nonattainment new source review (NSR) permit programs at 45
CSR 19, as submitted on December 1, 2005 and supplemented on December
22, 2005, meet the minimum requirements of 40 CFR 51.166 and the Clean
Air Act. This amendment is approvable as a revision to the West Virginia
SIP.

**IV. Statutory and Executive Order Reviews**

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 Fed. Reg. 28355 (May 22, 2001)). This
action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those imposed
by state law. Accordingly, the Administrator certifies that this
proposed 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]{.underline}.) Because this rule proposes to
approve 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 proposed rule also does 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), nor will it 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), because it merely proposes to approve 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 proposed rule also is not subject
to Executive Order 13045 (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. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a clear
legal standard for affected conduct. EPA has complied with Executive
Order 12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the AAttorney General=s
Supplemental Guidelines for

the Evaluation of Risk and Avoidance of Unanticipated Takings@ issued
under the executive order. This proposed rule, approving amendments to
West Virginia's Nonattainment New Source Review (NSR) Permit Program,
does not impose an information collection burden under the provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 [et
seq]{.underline}.).

**List of Subjects in 40 CFR Part 52**

Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

**Authority:** 42 U.S.C. 7401 [et seq]{.underline}.

\_\_\_\_\_\_[7/24/06]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[\_\_\_/s/\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Dated: Donald S. Welsh,

Regional Administrator,

Region III.