Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56125 

• 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. 

In May 2011, EPA issued its policy on 

consultation and coordination with 

Indian tribes. EPA explained that its 

policy is to consult on a government to 

government basis with Federally 

recognized tribal governments when 

EPA actions and decisions may affect 

tribal interests. Accordingly, EPA sent 

an invitation to consult with potentially 

interested tribes, and subsequently 

engaged in consultation with 

representatives of the Forest County 

Potawatomi Community (FCPC) 

regarding the Michigan proposed SIP 

revisions. 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 13, 2012. 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 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, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: August 29, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

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. 

■ 2. In § 52.1170, the table in paragraph 

(c) entitled ‘‘EPA—Approved Michigan 

Regulations’’ is amended by adding a 

new entry in numerical order for Part 18 

to read as follows: 

§ 52.1170 Identification of plan. 

* * * * * 

(c) * * * 

EPA—APPROVED MICHIGAN REGULATIONS

Michigan citation Title State effective 

date EPA approval date Comments 

*******

Part 18. Prevention of Significant Deterioration of Air Quality 

*******

R 336.2816 ....... Sources impacting federal class I areas; 

additional requirements.

June 30, 2011 .. September 12, 2012, [Insert page number 

where the document begins].

* * * * * * * 

* * * * * 

[FR Doc. 2012–22328 Filed 9–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0958; FRL–9725–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Amendments to West 

Virginia’s Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving the State 

Implementation Plan (SIP) revision 

submitted by the State of West Virginia 

(West Virginia) on July 8, 2011. This 

revision pertains to amendments of 

West Virginia’s Legislative Rule 

regarding ambient air quality standards 

(45 CSR 8—Ambient Air Quality 

Standards). These amendments 

incorporate by reference the National 

Ambient Air Quality Standards 

(NAAQS) in effect on June 1, 2010 for 

sulfur dioxide (SO2), particulate matter 

(PM), carbon monoxide (CO), ozone, 

nitrogen dioxide (NO2), and lead. This 

action is being taken under the Clean 

Air Act (CAA). 

DATES: This final rule is effective on 

October 12, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2011–0958. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

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 

www.regulations.gov 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, West 

Virginia 25304. 

FOR FURTHER INFORMATION CONTACT: 

Asrah Khadr, (215) 814–2071, or by 

email at khadr.asrah@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 22, 2012, EPA published 

a notice of proposed rulemaking (NPR) 

for West Virginia. 77 FR 10423. The 


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56126 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

NPR proposed approval of the revised 

regulation, 45 CSR 8—Ambient Air 

Quality Standards, submitted by West 

Virginia for inclusion in the West 

Virginia SIP, which also included the 

removal of sections 45–8–2 (AntiDegradation Policy), 45–8–4 (Ambient 

Air Quality Standards), 45–8–5 

(Methods of Measurement), and 45–8–6 

(Reference Conditions). The revised 

regulation, 45 CSR 8, incorporates by 

reference the NAAQS for SO2, PM, CO, 

ozone, NO2, and lead. Additional 

background information is discussed in 

detail in the NPR. Three adverse 

comments were submitted in response 

to EPA’s NPR. Summaries of the 

comments and EPA’s responses are 

provided in section II of this document. 

II. Summary of Public Comments and 

EPA Response 

Comment: EPA received comments on 

the proposed rulemaking from Mr. 

Robert Ukeile for Sierra Club (hereafter 

referred to as ‘‘commenter’’). The 

commenter expressed concern for the 

approval of the West Virginia SIP 

revision. The commenter perceives West 

Virginia’s incorporation by reference of 

40 CFR parts 50 and 53 effective June 

1, 2010 to be out of date upon EPA 

approval of the SIP revision. The 

commenter suggested that EPA 

conditionally approve the SIP revision 

contingent upon West Virginia 

submitting the legislative rule with the 

current versions of 40 CFR parts 50 and 

53. 

Response: EPA disagrees with the 

commenter’s statement that a 

conditional approval is warranted here. 

EPA is approving into the West Virginia 

SIP a revised version of 45 CSR 8 which 

adopts as state air quality standards the 

NAAQS for SO2, PM, CO, ozone, NO2, 

and lead by incorporating by reference 

40 CFR parts 50 and 53, effective June 

1, 2010, into 45 CSR 8. This proposed 

SIP revision was submitted to EPA on 

July 8, 2011. 

It is important to note that 45 CSR 8 

adopts those national ambient standards 

promulgated by EPA as ambient air 

quality standards for the State of West 

Virginia. See section 45–8–1. Neither 

the rule, nor its approval into the SIP, 

has any effect on the NAAQS 

promulgated by EPA, or on SIP 

requirements to attain and maintain the 

NAAQS in West Virginia. In particular, 

the West Virginia Prevention of 

Significant Deterioration (PSD) program, 

which is contained in a separate 

regulation, continues to require 

compliance with the NAAQS as 

promulgated by EPA. See section 45– 

14–9. 

The State of West Virginia’s 

legislative rulemaking is a lengthy 

annual process. The legislature meets 

from January to March, at which time an 

agency approved rule is reviewed by the 

appropriate legislative committees. An 

agency approved rule is approved in a 

legislative bill and is then sent to the 

governor for signature in April and most 

often becomes effective a month later in 

May. This makes West Virginia’s 

rulemaking process an ongoing task that 

is most often a year behind. Because of 

this yearly process, any rules published 

by EPA after April cannot be 

accommodated in the rulemaking 

process of that respective year. 

Therefore, the revisions to 45 CSR 8 

which are relevant here were approved 

in the West Virginia legislative process 

in the spring of 2011, but reflect the 

June 1, 2010 versions of 40 CFR parts 50 

and 53 because that is the latest annual 

edition of the federal regulations which 

were available at the time of the West 

Virginia legislative approval process in 

the spring of 2011. EPA notes, however, 

that West Virginia has a practice of 

regularly revising its regulations to 

adopt any changes in applicable 

NAAQS. EPA is approving these 

regulation changes into the West 

Virginia SIP as a SIP strengthening 

measure. 

Comment: The commenter expressed 

concern about EPA’s approval of the 

removal of the Anti-Degradation Policy 

in section 2 of 45 CSR 8. The 

commenter perceived the removal of the 

Anti-Degradation Policy to relieve West 

Virginia from obtaining and maintaining 

the best possible air quality. The 

commenter stated that removal of this 

policy would no longer require the 

Secretary of the West Virginia 

Department of Environmental Protection 

(WVDEP) to produce plans to protect 

the air quality in attainment areas. The 

commenter expressed concern that the 

removal of this policy would allow air 

quality to degrade in attainment areas. 

Specifically, the commenter was 

concerned that the removal of this 

provision would cause West Virginia’s 

minor source program to no longer 

comply with 42 U.S.C. 7410(a)(2)(A) 

and (C). The commenter perceived the 

removal of the Anti-Degradation Policy 

to be a relaxing of regulations in the 

West Virginia SIP and that EPA did not 

perform the appropriate anti-backsliding 

analysis required under 42 U.S.C. 

7410(l). The commenter suggested that 

EPA disapprove the removal of the AntiDegradation Policy from the West 

Virginia SIP. 

Response: EPA disagrees that removal 

of the Anti-Degradation Policy will 

allow air quality to degrade in 

attainment areas in West Virginia. EPA 

notes that, as stated in the 

Environmental Protection Advisory 

Council meeting minutes included in 

the SIP submission, the AntiDegradation Policy was added to 45 CSR 

8 in the early 1970s as ‘‘a placeholder 

in anticipation of the future PSD 

program and its provisions for best 

available control technology.’’ Minutes 

of Environmental Protection Advisory 

Council Meeting (June 3, 2010) at 2. 

Subsequently, statutory requirements 

for a PSD program were added to the 

CAA, EPA promulgated regulations, the 

State of West Virginia adopted a PSD 

program under 45 CSR 14, and the 

program became part of the West 

Virginia SIP. See 51 FR 12517 (April 11, 

1986) (effective May 12, 1986). 

Similarly, West Virginia’s minor source 

permitting program at 45 CSR 13 was 

approved into the West Virginia SIP on 

February 8, 2007. West Virginia’s SIPapproved permitting programs provide 

the means by which West Virginia 

ensures maintenance of air quality and 

the requirement for best available 

control technology (BACT), consistent 

with the Anti-Degradation Policy. The 

Anti-Degradation Policy does not 

impose any additional requirements on 

sources, nor does its removal from the 

SIP excuse sources from having to 

comply with West Virginia’s PSD, nonattainment NSR, or minor source 

programs. Accordingly, EPA has 

concluded that removal of the AntiDegradation Policy will not interfere 

with attainment and maintenance of the 

NAAQS, or with any other applicable 

requirement of the CAA, and the SIP 

revision satisfies CAA section 110(l). 

Comment: The commenter expressed 

concern that WVDEP did not provide 

‘‘reasonable notice’’ required under 

CAA Section 110(a)(1) because WVDEP 

did not mention that changes to 45 CSR 

8 included the removal of the AntiDegradation Policy during the public 

hearing. 

Response: EPA disagrees with the 

commenter and believes West Virginia 

provided adequate public notice and an 

adequate opportunity for a public 

hearing. The requirements for public 

hearings for SIP revisions are in 40 CFR 

51.102 which requires states to provide 

notice of the hearing, the opportunity to 

submit written comments, and the 

opportunity for the public to request a 

public hearing. The notice required by 

40 CFR 51.102 is notice of the date, 

place and time of the public hearing. In 

addition, 40 CFR 51.102 also requires, 

inter alia, notice in a prominent 

advertisement and availability of the 

proposed SIP revision for public 

inspection in at least one location. The 


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Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 56127 

1According to the transcript, neither this 

commenter, nor any other commenter, submitted 

comments to West Virginia at the public hearing. 

commenter does not challenge the 

content of the notice, and indeed West 

Virginia’s public notice for this SIP 

revision provided the location, Web site 

and contact phone number to obtain 

copies of the proposed rules at the time. 

All interested parties and persons had 

the ability to obtain more details about 

the proposed revision in at least one 

location. All notices for the public 

hearing were made at least 30 days prior 

to the date of the public hearing. West 

Virginia included in its submittal the 

affidavit of publication of the hearing 

notice in the Charleston newspapers 

and a copy of the West Virginia Register 

which contains a notice for the public 

hearing, as well as a transcript of the 

public hearing with a certification from 

the court reporter. Therefore, West 

Virginia has met the requirements for 

public hearings in 40 CFR 51.102. 

Furthermore, EPA notes that in opening 

of the public hearing, the representative 

of WVDEP clearly and accurately stated 

that the purpose of the public hearing 

was to accept comment on revisions to 

45 CSR 8. Any person wishing to make 

comments on any aspect of the revisions 

was free to do so.1

III. Final Action 

EPA is approving the updated version 

of 45 CSR 8 into the West Virginia SIP. 

This revision is being approved as a SIP 

strengthening measure for the West 

Virginia SIP. 

IV. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA 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 CAA. 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 CAA; 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 CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 13, 2012. 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 pertaining to the ambient 

air quality standards 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, Nitrogen 

dioxide, Ozone, Particulate matter, 

Sulfur oxides. 

Dated: August 23, 2012. 

W.C. Early, 

Acting, 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. 

Subpart XX—West Virginia 

■ 2. In § 52.2520, the table in paragraph 

(c) is amended by: 

■ a. Revising the title for 45 CSR Series 

8. 

■ b. Revising the entries for Sections 

45–8–1 through 45–8–4. 

■ c. Removing the entries for Sections 

45–8–5, 45–8–6, and 45–8–7. 

The amendments read as follows: 

§ 52.2520 Identification of plan. 

* * * * * 

(c) * * * 


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56128 Federal Register / Vol. 77, No. 177 / Wednesday, September 12, 2012 / Rules and Regulations 

EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP 

State citation 

[Chapter 16–20 or 45 CSR] Title/subject 

State 

effective 

date 

EPA approval date Additional explanation/ 

citation at 40 CFR 52.2565 

*******

[45 CSR] Series 8 Ambient Air Quality Standards 

Section 45–8–1 ........................ General ................................... 6/16/11 9/12/12 ....................................

[Insert page number where 

the document begins].

Incorporation by reference of 

the National Ambient Air 

Quality Standards. 

Section 45–8–2 ........................ Definitions ............................... 6/16/11 9/12/12 ....................................

[Insert page number where 

the document begins].

Revised section moved from 

45–8–3 to 45–8–2. 

Section 45–8–3 ........................ Adoption of Standards ............ 6/16/11 9/12/12 ....................................

[Insert page number where 

the document begins].

Section was revised to read 

new title and content. 

Section 45–8–4 ........................ Inconsistency Between Rules 6/16/11 9/12/12 ....................................

[Insert page number where 

the document begins].

Revised section moved from 

45–8–7 to 45–8–4. 

* * * * * * * 

* * * * * 

[FR Doc. 2012–22338 Filed 9–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2011–1028; FRL–9360–6] 

RIN 2070 

Polyoxin D Zinc Salt; Amendment to an 

Exemption From the Requirement of a 

Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation amends the 

existing exemption from the 

requirement of a tolerance for residues 

of polyoxin D zinc salt when used as a 

fungicide on almonds, cucurbit 

vegetables, fruiting vegetables, ginseng, 

grapes, pistachios, pome fruits, potatoes, 

and strawberries by expanding the 

current exemption to include all food 

commodities. This regulation 

establishes an exemption from the 

requirement of a tolerance for residues 

of polyoxin D zinc salt in or on all food 

commodities when applied as a 

fungicide and used in accordance with 

good agricultural practices. On behalf of 

Kaken Pharmaceutical Co., Ltd., Conn & 

Smith, Inc. submitted a petition to EPA 

under the Federal Food, Drug, and 

Cosmetic Act (FFDCA), requesting that 

EPA amend the existing exemption from 

the requirement of a tolerance for 

polyoxin D zinc salt. This regulation 

eliminates the need to establish a 

maximum permissible level for residues 

of polyoxin D zinc salt under the 

FFDCA. 

DATES: This regulation is effective 

September 12, 2012. Objections and 

requests for hearings must be received 

on or before November 13, 2012, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2011–1028, is 

available at http://www.regulations.gov 

or at the Office of Pesticide Programs 

Regulatory Public Docket (OPP Docket) 

in the Environmental Protection Agency 

Docket Center (EPA/DC), EPA West 

Bldg., Rm. 3334, 1301 Constitution Ave. 

NW., Washington, DC 20460–0001. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the OPP 

Docket is (703) 305–5805. Please review 

the visitor instructions and additional 

information about the docket available 

at http://www.epa.gov/dockets . 

FOR FURTHER INFORMATION CONTACT: 

Colin G. Walsh, Biopesticides and 

Pollution Prevention Division (7511P), 

Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460–0001; telephone number: 

(703) 308–0298; email address: 

walsh.colin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. The following 

list of North American Industrial 

Classification System (NAICS) codes is 

not intended to be exhaustive, but rather 

provides a guide to help readers 

determine whether this document 

applies to them. Potentially affected 

entities may include: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of 40 CFR part 180 

through the Government Printing 

Office’s e-CFR site at http:// 

ecfr.gpoaccess.gov/cgi/t/text/textidx?&c=ecfr&tpl=/ecfrbrowse/Title40/ 

40tab_02.tpl. 

To access the OCSPP test guidelines 

referenced in this document 

electronically, please go to http:// 

www.epa.gov/ocspp and select ‘‘Test 

Methods and Guidelines. ’’ 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a, any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 


srobinson on DSK4SPTVN1PROD with RULES