ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ EPA - R03 - OAR - 2009 - 0706 ; FRL - ] Approval and Promulgation of Air Quality Implementation Plans;

West Virginia ; R emoval of NOx SIP Call Rules AGENCY : Environmental Protection Agency (EPA). ACT ION : Direct final rule. SUMMARY : EPA is taking direct final action to approve a revision to the West Virginia State Implementation Plan (SI P). The revision removes West Virginia’s nitrogen oxides (NOx ) SI P Call rules. EPA is approving th is revision to remove West Virginia ’s NOx SI P Call rules in accordance with the requirements of the Clean Air Act (CAA) . DATES : This rule is effective on [ In sert date 60 day s after publication in the Federal Register] without further notice, unless EP A receives adverse written comment by [ In sert date 30 day s after publication in the Federal Register] . I f 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 I D Number EPA - R03 - OAR 2009 - 0706 by

one of the following methods: A. 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 3AP 30 , U.S. Environmental Protection Agency , Region I II, 16502

Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery : At the previously - listed EPA Region I II 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 www.regulations.gov , including any personal information provided, unless the comment include s information claimed to be Confidential Business In formation (CBI ) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBIor otherwise protected through www.regulations.gov or e - mail. The www .regulations.gov website is an A anony mous access @ sy stem, which means EPA will not know y our identity or contact information unless you provide it in the body of your comment. I f you send an e - mail comment directly to EPA without going through www.regulat ions.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 I nternet. I f you submit an electronic comment, EPA recommends that you include your name and oth er contact information in the body

of your comment and with any disk or CD - ROM y ou submit. I f 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 fi les should avoid the use of special characters, any

form of encry

ption, and be free of any

defects or viruses.3

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is n ot publicly available, i.e., CBI

or other information whose disclosure is restricted by statute. Certain other material, such as copy righted 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 or in hard copy

during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency , Region I II, 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, W est V irginia 25304. FOR FURTHER INFORMATION CONTACT : Marily n Powers , (215) 814 - 230 8 , or by e mail at powers.marily

n @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 SI P . The SI P re vision re moves West Virginia’s NOx SI P Call rules. West Virginia’s NOx SI P Call rules , approved into the West Virginia SI P on May 10, 2002 (67 FR 31733) and September 28, 2006 (71 FR 56881), established West Virginia ’s NOx Budget Trading Program and set f orth requirements for its non - trading sources, respectively . The former enabled West Virginia to4

participate in the EPA - administered regional NOx budget trading program under the NOx SI P Call . However, EPA discontinued the NOx SI P Call trading program af ter the 2008 ozone season, and s tarting in 2009, began administration of the trading programs under the Clean Air In terstate Rule (CAI R ) . CAI R established three separate emissions trading programs. One of these, the CAI R ozone season NOx trading program, applies to the electric generating units (EGUs) that are subject to the NOx SI P Call but does not apply to the non - EGUs that were also trading sources under the NOx SI P Call. To help States address these sources, CAI R provided States with the flexibility to include the non - EGUs as part of their CAI R ozone season NOx trading program. West Virginia chose to bring these non - EGUs into its CAI R ozone season NOx trading program by

including them in regulation 45CSR40 - Control of Ozone Season Nitrogen Oxide Em issions to Mitigate Interstate Transport of Ozone and Nitrogen Oxides CAI R . In addition, West Virginia chose to recodify the provisions for its non - trading non - EGUs (internal combustion engines and cement kilns) that were included in 45CSR1 into 45CSR40 . O n August 4, 2009 (74 FR 38536) , EPA approved West Virginia’s CAI R trading programs into the West Virginia SI P. West Virginia’s NOx SI P Call requirements have therefore been subsumed by the State’s CAI R ozone season NOx tradin g program.
II. S ummary of S IP Revision West Virginia met its NOx SI P Call requirements through two regulations : 45CSR1

– Control and Reduction of Nitrogen Oxides from Non - Electric Generating Units As a Means to Mitigate Transport of Oz one Precursors; and 45CSR26

– NO x Budget Trading Program as a Means of Control and Reduction of Nitrogen Oxides from Electric Generating Units. This SI P revision5

re moves these two regulations . West Virginia is meeting its NOx SI P Call emission reduction requirements by its approved CAI R ozone season N Ox trading program, codified in 45CSR40.

III. Final Action EPA i s approving the SI P revision submitted by West Virginia to re move its NOx SI P Call rules 45CSR1 and 45CSR26 . West Virginia continues to meet its NOx SI P Call requirements through its SI P - app roved CAI R 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 SI P revision if adverse comments are filed. This rule will be effective on [ In sert date 60 day s from date of publication in the Federal Register ] without furth er notice unless EPA receives adverse comment by [ In sert date 30 day s from date of publication in the Federal Register ]. I f 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. P lease note that i f 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.6

I V. Statutory and Executive Order Reviews A. General Requirements Under the Clean Air Act, the Administrator is required to approve a SI P 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, i n reviewing SI P 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 ad ditional 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 (Public L aw 104 - 4) ;
 d oes not have Federalism implications as specified in Executi ve 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);7

 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 A ir 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).

Inaddition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SI P is not approved to apply in Indian country located in the state, and EPA notes that it will not impose s ubstantial 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, ge nerally 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 day s after it is8

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 [ Insert date 60 day s from date of publication of this document in the Federal Register ]. Filing a petition for reconsideration by

the Administrator of this final rule does not affe ct 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 direc t 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.9

This action to approve the West Virginia SI P revision that re moves the State’s NOx SI P Call rules may n ot be challenged later in procee dings to enforce its requirements. (See section 307(b)(2). ) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, In corporation by reference, Nitrogen dioxide, Ozone, Particul ate matter . W. C. Early , Acting Regional Administrator

_ January 22, 2010 ____ __________________________ Dated: Shawn M. Garvin , Regional Administrator, Region I II.10

40 CFR Part 52 is amended as follows: PART 52 - [AMENDED] 1. The autho rity

citation for part 52 continues to read as follows: Authority : 42 U.S.C. 7401 et seq . Subpart XX B West Virginia 2. In § 52.2520, the table in paragraph (c) is amended by removing the entries for 45CSR Series 1 and 45CSR Series 26 in their entirety .