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[Federal Register: February 9, 2010 (Volume 75, Number 26)]
[Rules and Regulations]               
[Page 6305-6307]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe10-3]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0706; FRL-9111-5]

 
Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Removal of NOX SIP Call Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve a revision to the 
West Virginia State Implementation Plan (SIP). The revision removes 
West Virginia's nitrogen oxides (NOX) SIP Call rules. EPA is 
approving this revision to remove West Virginia's NOX SIP 
Call rules in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This rule is effective on April 12, 2010 without further notice, 
unless EPA receives adverse written comment by March 11, 2010. 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: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0706 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2009-0706, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, 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-
2009-0706. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov 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 http://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 
http://www.regulations.gov 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 http://www.regulations.gov 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, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at powers.marilyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA.
    On July 20, 2009, the State of West Virginia submitted a formal 
revision to its SIP. The SIP revision removes West Virginia's 
NOX SIP Call rules. West Virginia's NOX SIP Call 
rules, approved into the West Virginia SIP on May 10, 2002 (67 FR 
31733) and September 28, 2006 (71 FR 56881), established West 
Virginia's NOX Budget Trading Program and set forth 
requirements for its non-trading sources, respectively. The former 
enabled West Virginia to participate in the EPA-administered regional 
NOX budget trading program under the NOX SIP 
Call. However, EPA discontinued the NOX SIP Call trading 
program after the 2008 ozone season, and starting in 2009, began 
administration of the trading programs under the Clean Air Interstate 
Rule (CAIR). CAIR established three separate emissions trading 
programs. One of these, the CAIR ozone season NOX trading 
program, applies to the electric generating units (EGUs) that are 
subject to the NOX SIP Call but does not apply to the non-
EGUs that were also trading sources under the NOX SIP Call. 
To help States address these sources, CAIR provided States with the 
flexibility to include the non-EGUs as part of their CAIR ozone season 
NOX trading program. West Virginia chose to bring these non-
EGUs into its CAIR ozone season NOX trading program by 
including them in regulation 45CSR40--Control of Ozone Season Nitrogen 
Oxide Emissions to Mitigate Interstate Transport of Ozone and Nitrogen 
Oxides CAIR. In addition, West Virginia chose to recodify the 
provisions for its non-trading non-EGUs (internal combustion engines 
and cement kilns) that were

[[Page 6306]]

included in 45CSR1 into 45CSR40. On August 4, 2009 (74 FR 38536), EPA 
approved West Virginia's CAIR trading programs into the West Virginia 
SIP. West Virginia's NOX SIP Call requirements have 
therefore been subsumed by the State's CAIR ozone season NOX 
trading program.

II. Summary of SIP Revision

    West Virginia met its NOX SIP Call requirements through 
two regulations: 45CSR1--Control and Reduction of Nitrogen Oxides from 
Non-Electric Generating Units As a Means to Mitigate Transport of Ozone 
Precursors; and 45CSR26--NOX Budget Trading Program as a 
Means of Control and Reduction of Nitrogen Oxides from Electric 
Generating Units. This SIP revision removes these two regulations. West 
Virginia is meeting its NOX SIP Call emission reduction 
requirements by its approved CAIR ozone season NOX trading 
program, codified in 45CSR40.

III. Final Action

    EPA is approving the SIP revision submitted by West Virginia to 
remove its NOX SIP Call rules 45CSR1 and 45CSR26. West 
Virginia continues to meet its NOX SIP Call requirements 
through its SIP-approved CAIR ozone season NOX trading 
program.
    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 April 12, 2010 without further 
notice unless EPA receives adverse comment by March 11, 2010. 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 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 13045 (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 12, 2010. 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking.
    This action to approve the West Virginia SIP revision that removes 
the State's NOx SIP Call rules 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter.

    Dated: January 22, 2010.
W.C. Early,
Acting Regional Administrator, Region III.

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40 CFR Part 52 is amended as follows:

[[Page 6307]]

PART 52--[AMENDED]

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1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart XX--West Virginia


Sec.  52.2520  [Amended]

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2. In Sec.  52.2520, the table in paragraph (c) is amended by removing 
the entries for 45CSR Series 1 and 45CSR Series 26 in their entirety.

[FR Doc. 2010-2675 Filed 2-8-10; 8:45 am]
BILLING CODE 6560-50-P
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