61104 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R03–OAR–2005–WV–0002; FR–7986–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Emission Reductions to meet 

Phase II of the Nitrogen Oxides (NOX) 

SIP Call 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to grant 

conditional approval of a State 

Implementation Plan (SIP) revision 

submitted by the State of West Virginia 

pertaining to nitrogen oxides (NOX) 

emission reductions required under the 

NOX SIP Call. The SIP revision, required 

under Phase II of the NOX SIP Call 

(Phase II), consists of West Virginia’s 

rule to meet its remaining NOX emission 

reduction obligations. In order to meet 

the April 2005 SIP revision submission 

due date specified under Phase II, the 

West Virginia Department of the 

Environment (WVDEP) adopted this 

rule using West Virginia’s emergency 

rule procedures. In West Virginia, such 

emergency rules have a sunset date. In 

order for West Virginia to have a fully 

approvable SIP revision to satisfy Phase 

II, the WVDEP must adopt a permanent 

rule with an effective date prior to the 

sunset date of the emergency rule, and 

must submit the permanent rule as a SIP 

revision to EPA by July 1, 2006. The 

WVDEP is currently in the process of 

adopting its permanent version of the 

rule to satisfy the Phase II requirements. 

The WVDEP has submitted a written 

commitment to EPA stating it will adopt 

the permanent rule with an effective 

date prior to the sunset date of the 

emergency rule, and will submit the 

permanent rule as a SIP revision to EPA 

by July 1, 2006. EPA is proposing to 

grant conditional approval of this SIP 

revision based upon West Virginia’s 

commitments. This action is being taken 

under the Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before November 21, 

2005. 

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDocket (RME) ID Number R03–OAR–

2005–WV–0002 by one of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

Agency Web site: http:// 

www.docket.epa.gov/rmepub/ RME, 

EPA’s electronic public docket and 

comment system, is EPA’s preferred 

method for receiving comments. Follow 

the on-line instructions for submitting 

comments. 

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

Mail: R03–OAR–2005–WV–0002, 

Makeba Morris, Chief, Air Quality 

Planning Branch, Mailcode 3AP21, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operations, 

and special arrangements should be 

made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

RME ID No. R03–OAR–2005–WV–0002. 

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.docket.epa.gov/rmepub/, 

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 RME, 

regulations.gov or e-mail. The EPA RME 

and the Federal regulations.gov Web 

sites are 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 email comment directly to EPA without 

going through RME or 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 RME 

index at http://www.docket.epa.gov/ 

rmepub/. 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 RME 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, 7012 

MacCorkle Avenue, SE., Charleston, 

West Virginia 25304–2943. 

FOR FURTHER INFORMATION CONTACT: 

Marilyn Powers, (215) 814–2308, or by 

e-mail at powers.marilyn@epa.gov. 

SUPPLEMENTARY INFORMATION: West 

Virginia’s Phase I NOX SIP Call trading 

program was approved as part of the 

West Virginia SIP on May 10, 2002 (67 

FR 31733). On April 21, 2004 (69 FR 

21604), EPA promulgated Phase II of the 

NOX SIP Call which, among other 

changes, adjusted state budgets 

downward to reflect emission 

reductions based upon the application 

of cost effective controls on stationary 

internal combustion (IC) engines that 

emitted more than one ton of NOX per 

average ozone season day in 1995. On 

March 30, 2005, the State submitted a 

revision to its SIP to satisfy the 

additional emission reductions required 

under Phase II. The March 30, 2005 

submittal is comprised of an emergency 

rule that sunsets after 15 months, on 

June 2, 2006. However, in its March 30, 

2005 SIP submittal, the WVDEP 

indicated that it is in the process of 

adopting an identical permanent rule. 

On August 15, 2005, the WVDEP 

submitted a letter committing to adopt 

a permanent rule having an effective 

date prior to the sunset date of its 

emergency rule, and committing to 

submit the permanent rule as a SIP 

revision to EPA by July 1, 2006. 

I. Background 

EPA issued the NOX SIP Call (63 FR 

57356, October 27, 1998) to require 22 

Eastern states and the District of 

Columbia to reduce specified amounts 

of one of the main precursors of groundlevel ozone, NOX, in order to reduce 

interstate ozone transport. EPA found 

that the sources in these states emit NOX

in amounts that contribute significantly 

to nonattainment of the 1-hour ozone 

national ambient air quality standard 

(NAAQS) in downwind states. In the 

NOX SIP Call, the amount of reductions 

required by states were calculated based 

on application of available, highly costeffective controls on source categories of 

NOX. 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Proposed Rules 61105 

The NOX SIP Call, including the 

Technical Amendments which 

addressed the 2007 electric generating 

units (EGU) budgets (64 FR 26298, May 

14, 1999 and 65 FR 11222, March 2, 

2000), was challenged by a number of 

state, industry, and labor groups. A 

summary of the NOX SIP Call 

requirements, including details of the 

court decisions that were made in 

response to challenges to the rule and 

impacts of the court decisions on certain 

aspects of the rule may be found in 

EPA’s rulemaking dated April 21, 2004 

(69 FR 21604) entitled, ‘‘Interstate 

Ozone Transport: Response to Court 

Decisions on the NOX SIP Call, NOX SIP 

Call Technical Amendments, and 

Section 126 Rules.’’ The relevant 

portions of the April 21, 2004 

rulemaking that affect West Virginia’s 

obligations under the NOX SIP Call, and 

that pertain to the State’s requirements 

for Phase II, are discussed in this 

document to provide background on the 

March 30, 2005 SIP revision submitted 

by the WVDEP. 

On March 3, 2000, the United States 

Court of Appeals for the District of 

Columbia Circuit (DC Circuit) issued its 

decision on the NOX SIP Call, Michigan 

v. EPA, 213 F.3rd 663 (DC Dir. 2000). 

While the DC Circuit ruled largely in 

favor of EPA in support of its 

requirements under the 1-hour ozone 

NAAQS, it also ruled, in part, against 

EPA on certain issues. The rulings 

against EPA included two areas of the 

NOX SIP Call that were remanded and 

vacated and two areas in which EPA 

was found to have failed to provide 

adequate notice of changes in the rule. 

In the latter case, the rulings included 

a failure to provide adequate notice of 

the change in the definition of EGU as 

applied to cogeneration (cogen) units 

that supply electricity to a utility power 

distribution system for sale in certain 

specified amounts, and a failure to 

provide adequate notice of the change in 

the control level EPA assumed for large 

stationary internal combustion (IC) 

engines. The portions of the NOX SIP 

Call that were upheld by the Court were 

termed ‘‘Phase I’’ of the rule. With the 

exception of the remand of the EGU 

growth factors used in the NOX SIP Call 

and the requirements for the 8-hour 

ozone NAAQS (which EPA stayed due 

to uncertainty created by the court 

rulings), those portions of the NOX SIP 

Call that had been remanded back to 

EPA were finalized in the April 21, 2004 

rulemaking (69 FR 21604) and termed 

‘‘Phase II’’ of the rule. 

The April 21, 2004 rule finalized 

specific changes to the definition of 

EGUs as applied to cogen units, 

finalized the control levels assumed for 

large stationary IC engines in the NOX

SIP Call, adjusted states’ total budgets 

(as necessary) to reflect these changes, 

established a SIP submittal date of April 

1, 2005 for states to address the Phase 

II portion of the budget, and set a 

compliance date of May 1, 2007 for all 

affected sources to meet Phase II. As a 

result of these changes, states that were 

not already meeting their total NOX SIP 

Call emission reduction obligations 

were required to submit a SIP revision 

by April 1, 2005 to reduce ozone season 

NOX emissions by an incremental 

amount equivalent to the reductions 

achieved by controlling IC engines to 

prescribed levels. The IC engines that 

comprise the subject states’ Phase II 

inventory were compiled by EPA and 

termed the EPA’s NOX SIP Call Engine 

Inventory (65 FR 1222, March 2, 2000). 

As finalized in the April 21, 2005 

rulemaking, the amount of the 

incremental reductions required was 

based upon the level of reductions that 

would occur if large natural gas-fired 

stationary IC engines were controlled to 

a level of 82 percent, and large diesel 

and dual fuel stationary IC engines were 

controlled to a level of 90 percent. 

The change to the definition of cogen 

units did not have an impact on the 

Phase I budget previously established 

for West Virginia. Therefore, in order to 

meet its NOX SIP Call obligations, the 

State was required only to achieve the 

incremental reductions that EPA 

calculated based on controlling 

stationary IC engines to prescribed 

levels. As in Phase I of the NOX SIP 

Call, states have flexibility in how they 

achieve the incremental reductions 

required under Phase II. West Virginia 

chose to require the reductions from 

large IC engines, allowing creditable 

reductions on a facility-wide basis, and 

developed a rule largely based on EPA’s 

model language for Phase II 

requirements. 

II. Summary of SIP Revision 

On March 30, 2005, the State of West 

Virginia submitted a revision to its SIP 

pertaining to emission reductions to 

satisfy Phase II of the NOX SIP Call. The 

SIP revision consists of Emergency Rule 

45CSR1 entitled, ‘‘Control and 

Reduction of Nitrogen Oxides from Nonelectric Generating Units as a Means to 

Mitigate Transport of Ozone 

Precursors,’’ which amends West 

Virginia’s existing rule 45CSR1 to 

include the Phase II requirements. The 

revision applies to owners or operators 

of large stationary IC engines in the 

State of West Virginia. A large IC engine 

is defined as an engine that emitted 

more than one ton of NOX per average 

ozone season day in 1995. 

In its March 30, 2005 submittal, West 

Virginia included an incremental budget 

demonstration that listed seven large 

natural gas-fired IC engines that are 

subject to Phase II, consistent with 

EPA’s NOX SIP Call Engine Inventory. 

Application of 82 percent control to 

these units for the projected 2007 base 

case resulted in an incremental 

reduction of 903 tons of NOX emissions. 

EPA has determined that an additional 

reduction of 903 tons of NOX satisfies 

all of West Virginia’s remaining 

requirements under the NOX SIP Call, 

and that this amount appropriately 

adjusts the incremental reduction 

specified in the April 21, 2004 

rulemaking. 

Emergency Rule 45 CSR1 contains 

revisions to West Virginia’s existing 

NOX Budget Trading Program that 

enables the State to implement the 

additional requirements under Phase II 

of the NOX SIP Call. Sources in West 

Virginia that are subject to the new 

requirements must submit a compliance 

plan to WVDEP by May 1, 2006, and 

reduce ozone season NOX emissions in 

the state by an additional 903 tons 

beginning May 1, 2007. The revised rule 

also includes the pertinent definitions 

associated with stationary IC engines, 

and also adds a new Section 90 which 

sets forth general provisions, 

applicability provisions, the required 

ozone season NOX emission reductions, 

requirements for compliance plans, and 

the monitoring, recordkeeping, and 

reporting requirements necessary to 

determine compliance with the required 

emission reductions from stationary IC 

engines. The rule also incorporates the 

monitoring and reporting revisions set 

forth in 40 CFR Part 97 to align it with 

modifications that had been made to 45 

CFR Part 75. 

III. Proposed Action 

EPA is proposing to grant conditional 

approval of West Virginia’s March 30, 

2005 SIP revision which consists of 

West Virginia’s Emergency Rule 45CSR1 

to meet Phase II of the NOX SIP Call. For 

West Virginia’s Rule 45CSR1 to become 

fully approvable, the State of West 

Virginia must, in accordance with its 

August 15, 2005 commitment, fulfill the 

following conditions: 

(1) Adopt a permanent Rule 45CSR1 

with an effective date prior to the sunset 

date of the emergency rule, and 

(2) Submit permanent rule 45CSR1 as 

a SIP revision to EPA by July 1, 2006. 

Once West Virginia fulfills these 

conditions, EPA will conduct 

rulemaking to convert its conditional 

approval to a full approval. If the 

conditions are not fulfilled within the 

specified time frame, any final 

61106 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Proposed Rules 

conditional approval granted by EPA 

will convert to a disapproval. EPA is 

soliciting public comments on proposed 

action and issues discussed in this 

document. These comments will be 

considered before taking final action. 

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.). 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 (Pub. L. 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 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’’ issued under the executive 

order. This proposed rule to grant 

conditional approval of West Virginia 

Emergency Rule 45CSR1 to meet Phase 

II of the NOX SIP Call does not impose 

an information collection burden under 

the provisions of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control Nitrogen dioxide, 

Ozone, Reporting and recordkeeping 

requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: October 13, 2005. 

Donald S. Welsh, 

Regional Administrator, Region III. 

[FR Doc. 05–20986 Filed 10–19–05; 8:45 am] 

BILLING CODE 6560—50—M 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[R01–OAR–2005–MA–0003; FRL–7986–5] 

Approval and Promulgation of State 

Plans for Designated Facilities and 

Pollutants: Massachusetts; Negative 

Declaration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve the 

Sections 111(d) and 129 negative 

declaration submitted by the 

Massachusetts Department of 

Environmental Protection (MADEP) on 

August 23, 2005. This negative 

declaration adequately certifies that 

there are no existing commercial and 

industrial solid waste incineration units 

(CISWIs) located within the boundaries 

of the Commonwealth of Massachusetts. 

DATES: EPA must receive comments in 

writing by November 21, 2005. 

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDocket (RME) ID Number R01–OAR–

2005–MA–0003 by one of the following 

methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. Agency Web site: http:// 

docket.epa.gov/rmepub/ Regional 

Material in EDocket (RME), EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Once in the 

system, select ‘‘quick search,’’ then key 

in the appropriate RME Docket 

identification number. Follow the online instructions for submitting 

comments. 

3. E-mail: brown.dan@epa.gov 

4. Fax: (617) 918–0048 

5. Mail: ‘‘RME ID Number R01–OAR–

2005–MA–0003’’, Daniel Brown, Chief, 

Air Permits, Toxics & Indoor Programs 

Unit, Office of Ecosystem Protection, 

U.S. EPA, One Congress Street, Suite 

1100 (CAP), Boston, Massachusetts 

02114–2023. 

6. Hand Delivery or Courier. Deliver 

your comments to: Daniel Brown, Chief, 

Air Permits, Toxics & Indoor Programs 

Unit, Office of Ecosystem Protection, 

U.S. EPA, One Congress Street, Suite 

1100 (CAP), Boston, Massachusetts 

02114–2023. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding federal holidays. 

Please see the direct final rule which is 

located in the Rules Section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

Copies of documents relating to this 

proposed rule are available for public 

inspection during normal business 

hours at the following locations. The 

interested persons wanting to examine 

these documents should make an 

appointment with the appropriate office 

at least 24 hours before the day of the 

visit. 

Environmental Protection Agency, Air 

Permits, Toxics & Indoor Programs Unit,