[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Rules and Regulations]
[Pages 39855-39857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19272]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WVA10-1-5918a; FRL-5265-7]


 Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia--Emission Statement Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of West Virginia. This revision consists of an 
emission statement program for stationary sources which emit volatile 
organic compounds (VOCs) and/or nitrogen oxides (NOX) at or above 
specified actual emission threshold levels. This program applies to 
certain stationary sources within the West Virginia counties of Putnam, 
Kanawha, Cabell, Wayne, Wood, and Greenbrier. The intended effect of 
this action is to approve a regulation for annual reporting of actual 
emissions by sources that emit VOC and/or NOX, within the counties 
listed above, in accordance with the 1990 Clean Air Act (CAA). This 
action is being taken under section 110 of the CAA.

DATES: This action will become effective September 18, 1995 unless 
notice is received on or before September 5, 1995 that adverse or 
critical comments will be submitted. If the effective date is delayed, 
timely notice will be published in the Federal Register.

ADDRESSES: Comments must be mailed to Marcia L. Spink, Associate 
Director (3AT00), Air Programs, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania, 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the following 
location: Environmental Protection Agency, Region III, Air, Radiation, 
and Toxics Division, 841 Chestnut Building, Philadelphia, PA 19107; and 
the West Virginia Office of Air Quality, 1558 Washington Street, East, 
Charleston, West Virginia, 25311.

FOR FURTHER INFORMATION CONTACT: Marcia L. Spink, U.S. Environmental 
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, 
Pennsylvania 19107, (215) 597-4713.

SUPPLEMENTARY INFORMATION: On August 10, 1993, the West Virginia Office 
of Air Quality (WVOAQ) submitted a SIP revision to EPA. This revision 
would add West Virginia Regulation Title 45, Series 29, ``Rule 
Requiring the Submission of Emission Statements for Volatile Organic 
Compounds and Oxides of Nitrogen Emissions,'' consisting of 
Subsections: 1. General; 2. Definitions; 3. Applicability; 4. 
Compliance Schedule; 5. Emission Statement Requirements; 6. 
Enforceability; and 7. Severability, effective July 7, 1993 in the 
State of West Virginia to the West Virginia SIP.

I. Background

    The air quality planning and SIP requirements for ozone 
nonattainment and transport areas are set out in subparts I and II of 
Part D of Title I of the Clean Air Act, as amended by the Clean Air Act 
Amendments of 1990. EPA published a ``General Preamble'' describing 
EPA's preliminary views on how it intends to review SIP's and SIP 
revisions submitted under Title I of the CAA, including those State 
submittals for ozone transport areas within the States (see 57 FR 13498 
(April 16, 1992) (''SIP: General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990''), 57 FR 18070 (April 
28, 1992) (''Appendices to the General Preamble''), and 57 FR 55620 
(November 25, 1992) (''SIP: NOX Supplement to the General 
Preamble'')).
    EPA also issued a draft guidance document describing the 
requirements for the emission statement programs discussed in this 
action, entitled ``Guidance on the Implementation of an Emission 
Statement Program'' (July, 1992). The Agency is also conducting a 
rulemaking process to modify title 40, part 51 of the CFR to reflect 
the requirements of the emission statement program.
    Section 182 of the Act sets out a graduated control program for 
ozone nonattainment areas. Section 182(a) sets out requirements 
applicable in marginal ozone nonattainment areas, which are also made 
applicable by section 182 (b), (c), (d), and (e) to all other ozone 
nonattainment areas. Among the requirements in section 182(a) is a 
program for stationary sources to prepare and submit to the State each 
year emission statements certifying their actual emissions of VOCs and 
NOX. This section of the Act provides that the States are to 
submit a revision to their SIPs by November 15, 1992 establishing this 
emission statement program.
    If a source emits either VOC or NOX at or above the designated 
minimum reporting level, the other pollutant should be included in the 
emission statement, even if it is emitted at levels below the specified 
cutoffs.
    States may waive, with EPA approval, the requirement for an 
emission statement for classes or categories of sources with less than 
25 tons per year of actual plant-wide NOX or VOC emissions in 
nonattainment areas if the class or category is included in the base 
year and periodic inventories and emissions are calculated using 
emissions factors established by EPA (such as those found in EPA 
publication AP-42) or other methods acceptable to EPA.
    At minimum, the emission statement data should include:

--Certification of data accuracy;
--Source identification information;
--Operating schedule; 

[[Page 39856]]

--Emissions information (to include annual and typical ozone season day 
emissions);
--Control equipment information; and
--Process data.

    EPA developed emission statements data elements to be consistent 
with other source and State reporting requirements. This consistency is 
essential to assist States with quality assurance for emission 
estimates and to facilitate consolidation of all EPA reporting 
requirements.
II. EPA's Evaluation of West Virginia's Submittal

A. Procedural Background

    In accordance with the requirements of 40 CFR Sec. 51.102, a public 
hearing concerning West Virginia's SIP revision was held on June 23, 
1993, in Charleston, West Virginia to solicit public comment on the 
implementation plan for the State. Following the public hearing, the 
plan was adopted by the State and signed by the Governor's designee on 
July 7, 1993 and submitted to EPA on August 10, 1993 as a revision to 
the SIP.

B. Components of West Virginia's Emission Statement Program

    There are several key and specific components of an acceptable 
emission statement program. Specifically, West Virginia must submit a 
revision to its SIP which consists of an emission statement program 
which meets the minimum requirements for reporting by the sources and 
the State. For the emission statement program to be approvable, West 
Virginia's SIP revision must include, at a minimum, definitions and 
provisions for applicability, compliance, and specific source reporting 
requirements and reporting forms.
    Subsection 45-29-2. Definitions, includes, among others, 
definitions for the following terms: Actual emissions; Annual fuel 
process rate; Control efficiency; Control equipment identification 
code; Emission factor; Emission statement; Estimated emission method 
code; Estimated emission units; Facility; Measured emission methods 
code; Measured emission units; Owner or operator; Oxides of nitrogen; 
Ozone season; Percentage seasonal throughput; Person; Point; Potential 
to emit; Typical ozone season day; and Volatile organic compounds.
    Subsections 45-29-1. General; 45-29-3. Applicability; 45-29-6. 
Enforceability; and 45-29-7. Severability require that a person who 
owns or operates any installation, source, or premises to report the 
levels of emissions from all stationary sources of VOCs and NOX. 
The state may, with EPA's approval, waive the Emission Statements 
requirements for classes or categories for stationary sources with 
facility-wide actual emissions of less than 25 tpy of VOC or NOX, 
if the class or category is included in the Base Year ozone and 
Periodic ozone inventories are calculated using EPA approved emission 
factors or other methods acceptable to EPA. Subsection 45-29-5. 
Emission Statement Requirements, requires that a certifying official 
for each facility provide West Virginia with a statement reporting 
emissions by May 13, in 1993, and by April 15 of every year thereafter 
for the emissions discharged during the previous calendar year. This 
subsection of the regulation also delineates specific requirements for 
the content of these annual emission statements.

C. Enforceability

    The State of West Virginia has provisions in its SIP which ensure 
that the emission statement requirements of West Virginia Regulation 
Title 45, Series 29, ``Rule Requiring the Submission of Emission 
Statements for Volatile Organic Compounds and Oxides of Nitrogen 
Emissions,'' are adequately enforced.
    EPA has determined that the submittal made by the State of West 
Virginia satisfies the relevant requirements of the CAA and EPA's 
guidance document, ``Guidance on the Implementation of an Emission 
Statement Program'' (July 1992).

III. Final Action

    EPA is approving a revision to the West Virginia SIP to include 
Regulation Title 45, Series 29, ``Rule Requiring the Submission of 
Emission Statements for Volatile Organic Compounds and Oxides of 
Nitrogen Emissions.'' This revision was submitted to EPA by the State 
of West Virginia on August 10, 1993.
    EPA is approving this SIP revision without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will become 
effective September 18, 1995 unless, within 30 days of publication, 
adverse or critical comments are received. If EPA receives such 
comments, this action will be withdrawn before the effective date by 
publishing a subsequent notice that will withdraw the final action. All 
public comments received will then be addressed in a subsequent final 
rule based on this action serving as a proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting on this action should do so at this time. If 
no such comments are received, the public is advised that this action 
will be effective on September 18, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision of any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. Redesignation of an area to attainment under section 
107(d)(3)(E) of the Act does not impose any new requirements on small 
entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any regulatory requirements on 
sources. The Administrator certifies that the approval of the 
redesignation request will not affect a substantial number of small 
entities. SIP approvals under section 110 and subchapter I, part D of 
the clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP Approval does not impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the Act, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIP's on such grounds. Union Electric Co. v. 
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410 (a) (2).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules 

[[Page 39857]]
that include a Federal mandate that may result in estimated costs of 
$100 million or more to the private sector, or to State, local, or 
tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under section 175A of the 
Clean Air Act. These rules may bind State, local and tribal governments 
to perform certain actions and also require the private sector to 
perform certain duties. The rules being approved by this action will 
impose no new requirements; such sources are already subject to these 
regulations under State law. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action. EPA has also determined that this final action does not 
include a mandate that may result in estimated costs of $100 million or 
more to State, local, or tribal governments in the aggregate or to the 
private sector.
    The OMB has exempted this regulatory action from E.O. 12866 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 October 3, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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 approving West Virginia's Emission 
Statement Program 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, Hydrocarbons, 
Incorporation by Reference, Intergovernmental relations, Volatile 
organic compounds, Oxides of nitrogen, Ozone, Reporting and 
recordkeeping requirements.

    Dated: July 14, 1995.
Stanley L. Laskowski,
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. 7401-7671q.

Subpart XX--West Virginia

    2. Section 52.2520 is amended by adding paragraphs (c)(34) to read 
as follows:


Sec. 52.2520  Identification of plan.

* * * * *
    (c) * * *
    (34) Revisions to the West Virginia State Implementation Plan 
submitted by the Secretary, West Virginia Department of Commerce, 
Labor, and Environmental Resources, Office of Air Quality, on August 
10, 1993.
    (i) Incorporation by reference.
    (A) Letter dated August 10, 1993 from the Secretary, West Virginia 
Department of Commerce, Labor, and Environmental Resources, Office of 
Air Quality submitting 45 Code of State Regulations (CSR) Series 29 
``Rule Requiring the Submission of Emission Statements for Volatile 
Organic Compounds and Oxides of Nitrogen Emissions'' as a revision to 
the West Virginia State Implementation Plan. The effective date of this 
rule, 45CSR29 is July 7, 1993.
    (B) West Virginia Regulation Title 45, Series 29, ``Rule Requiring 
the Submission of Emission Statements for Volatile Organic Compounds 
and Oxides of Nitrogen Emissions,'' consisting of Subsections: 1. 
General; 2. Definitions; 3. Applicability; 4. Compliance Schedule; 5. 
Emission Statement Requirements; 6. Enforceability; and 7. 
Severability, effective July 7, 1993.
    (ii) Additional Material.
    (A) Remainder of August 10, 1993 State submittal pertaining to 45 
CSR Series 29, ``Rule Requiring the Submission of Emission Statements 
for Volatile Organic Compounds and Oxides of Nitrogen Emissions.''
    (B) [Reserved]
[FR Doc. 95-19272 Filed 8-3-95; 8:45 am]
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