[Federal Register Volume 86, Number 207 (Friday, October 29, 2021)]
[Proposed Rules]
[Pages 59896-59899]
[FR Doc No: 2021-23345]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2021-0945; Project Identifier MCAI-2021-01033-T]
RIN 2120-AA64

Airworthiness Directives; Airbus SAS Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to supersede Airworthiness Directive (AD)
2021-11-23, which applies to certain Airbus SAS Model A350-941 and -
1041 airplanes. AD 2021-11-23 requires revising the existing
maintenance or inspection program, as applicable, to incorporate new or
more restrictive airworthiness limitations, and, for certain airplanes,
and updating the hydraulic monitoring system to include additional
redundancy. Since the FAA issued AD 2021-11-23, the FAA has determined
that new or more restrictive airworthiness limitations are necessary.
This proposed AD would require revising the existing maintenance or
inspection program, as applicable, to incorporate new or more
restrictive airworthiness limitations, as specified in a European Union
Aviation Safety Agency (EASA). This proposed AD would also revise the
applicability to include different airplanes. The FAA is proposing this
AD to address the unsafe condition on these products.

DATES: The FAA must receive comments on this proposed AD by December
13, 2021.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For EASA material that will be incorporated by reference (IBR) in
this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany;
telephone +49 221 8999 000; email [email protected]; internet
www.easa.europa.eu. You may find this IBR material on the EASA website
at https://ad.easa.europa.eu. You may view this IBR material at the
FAA, Airworthiness Products Section, Operational Safety Branch, 2200
South 216th St., Des Moines, WA. For information on the availability of
this material at the FAA, call<PHONE_NUMBER>. EASA material is also
available in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-
0945.

Examining the AD Docket

    You may examine the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-
0945; or in person at Docket Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. The AD docket contains
this NPRM, any comments received, and other information. The street
address for Docket Operations is listed above.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, Large
Aircraft Section, International Validation Branch, FAA, 2200 South
216th St., Des Moines, WA 98198; telephone and fax<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under ADDRESSES. Include ``Docket No. FAA-2021-0945; Project Identifier
MCAI-2021-01033-T'' at the beginning of your comments. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. The FAA
will consider all comments received by the closing date and may amend
the proposal because of those comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, to
https://www.regulations.gov, including any personal information you
provide. The agency will also post a report summarizing each
substantive verbal contact received about this proposed AD.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to Dan
Rodina, Aerospace Engineer, Large Aircraft Section, International
Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198;
telephone and fax<PHONE_NUMBER>; email [email protected]. Any
commentary that the FAA receives which is not specifically designated
as CBI will be placed in the public docket for this rulemaking.

Background

    The FAA issued AD 2021-11-23, Amendment 39-21585 (86 FR 40932, July
30, 2021) (AD 2021-11-23), for certain Airbus SAS Model A350-941 and -
1041 airplanes. AD 2021-11-23 requires revising the existing
maintenance or inspection program, as applicable, to incorporate new or
more restrictive airworthiness limitations and, for certain airplanes,
updating the hydraulic monitoring system to include additional
redundancy. The FAA issued AD 2021-11-23 to address the overheat
failure mode of the hydraulic engine-driven pump, which may cause a
fast temperature rise of the hydraulic fluid, and, if combined with an
inoperative fuel tank inerting system, could lead to an uncontrolled
overheat of the hydraulic fluid, possibly resulting in ignition of the
fuel-air mixture of the affected fuel tank.

Actions Since AD 2021-11-23 Was Issued

    Since the FAA issued AD 2021-11-23, the FAA has determined that new
or more restrictive airworthiness limitations are necessary.
    EASA, which is the Technical Agent for the Member States of the
European

Union, has issued EASA AD 2021-0209, dated September 15, 2021 (EASA AD
2021-0209) (also referred to as the Mandatory Continuing Airworthiness
Information, or the MCAI), to correct an unsafe condition for all
Airbus SAS Model A350-941 and -1041 airplanes. EASA AD 2021-0209 refers
to Airbus A350 Airworthiness Limitations Section (ALS), Part 5, ``Fuel
Airworthiness Limitations (FAL),'' Revision 05, dated June 30, 2021,
which includes updating the hydraulic monitoring system. Airplanes with
an original airworthiness certificate or original export certificate of
airworthiness issued after June 30, 2021, must comply with the
airworthiness limitations specified as part of the approved type design
and referenced on the type certificate data sheet; this proposed AD
therefore does not include those airplanes in the applicability. EASA
AD 2021-0209 supersedes EASA AD 2020-0268, dated December 4, 2020
(which corresponds to FAA AD 2021-11-23).
    This proposed AD was prompted by a determination that new or more
restrictive airworthiness limitations are necessary. The FAA is
proposing this AD to address the potential of ignition sources inside
fuel tanks, which, in combination with flammable fuel vapors, could
result in a fuel tank explosion and consequent loss of the airplane.
See the MCAI for additional background information.

Related Service Information Under 1 CFR Part 51

    EASA AD 2021-0209 describes new or more restrictive airworthiness
limitations related to fuel tank ignition prevention and fuel tank
flammability reduction.
    This material is reasonably available because the interested
parties have access to it through their normal course of business or by
the means identified in the ADDRESSES section.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to the FAA's bilateral agreement with the State of Design Authority,
the FAA has been notified of the unsafe condition described in the MCAI
and service information referenced above. The FAA is proposing this AD
because the FAA has evaluated all pertinent information and determined
an unsafe condition exists and is likely to exist or develop on other
products of the same type design.

Proposed AD Requirements

    This proposed AD would also require revising the existing
maintenance or inspection program, as applicable, to incorporate new or
more restrictive airworthiness limitations, which are specified in EASA
AD 2021-0209 described previously, as incorporated by reference. Any
differences with EASA AD 2021-0209 are identified as exceptions in the
regulatory text of this AD. This proposed AD would also require
accomplishing a certain airworthiness limitation using the Airbus
service information described previously.
    This proposed AD would require revisions to certain operator
maintenance documents to include new actions (e.g., inspections) and
Critical Design Configuration Control Limitations (CDCCLs). Compliance
with these actions and CDCCLs is required by 14 CFR 91.403(c). For
airplanes that have been previously modified, altered, or repaired in
the areas addressed by this proposed AD, the operator may not be able
to accomplish the actions described in the revisions. In this
situation, to comply with 14 CFR 91.403(c), the operator must request
approval for an alternative method of compliance according to paragraph
(j)(1) of this proposed AD.
    This proposed AD does not restate the requirements of AD 2021-11-23
due to an error in the applicability of that AD. The applicability of
AD 2021-11-23 identified airplanes having an original airworthiness
certificate or original export certificate of airworthiness issued
``after'' September 15, 2020, instead of ``on or before'' September 15,
2020. The affected airplanes are correctly identified in the
applicability of this new proposed AD.

Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD
process, the FAA developed a process to use some civil aviation
authority (CAA) ADs as the primary source of information for compliance
with requirements for corresponding FAA ADs. The FAA has been
coordinating this process with manufacturers and CAAs. As a result, the
FAA proposes to incorporate EASA AD 2021-0209 by reference in the FAA
final rule. This proposed AD would, therefore, require compliance with
EASA AD 2021-0209 in its entirety through that incorporation, except
for any differences identified as exceptions in the regulatory text of
this proposed AD. Using common terms that are the same as the heading
of a particular section in EASA AD 2021-0209 does not mean that
operators need comply only with that section. For example, where the AD
requirement refers to ``all required actions and compliance times,''
compliance with this AD requirement is not limited to the section
titled ``Required Action(s) and Compliance Time(s)'' in EASA AD 2021-
0209.
    Service information required by EASA AD 2021-0209 for compliance
will be available at https://www.regulations.gov by searching for and
locating Docket No. FAA-2021-0945 after the FAA final rule is
published.

Airworthiness Limitation ADs Using the New Process

    The FAA's process of incorporating by reference MCAI ADs as the
primary source of information for compliance with corresponding FAA ADs
has been limited to certain MCAI ADs (primarily those with service
bulletins as the primary source of information for accomplishing the
actions required by the FAA AD). However, the FAA is now expanding the
process to include MCAI ADs that require a change to airworthiness
limitation documents, such as airworthiness limitation sections.
    For these ADs that incorporate by reference an MCAI AD that changes
airworthiness limitations, the FAA requirements are unchanged.
Operators must revise the existing maintenance or inspection program,
as applicable, to incorporate the information specified in the new
airworthiness limitation document. The airworthiness limitations must
be followed according to 14 CFR 91.403(c) and 91.409(e).
    The previous format of the airworthiness limitation ADs included a
paragraph that specified that no alternative actions (e.g.,
inspections), intervals, or CDCCLs may be used unless the actions,
intervals, and CDCCLs are approved as an alternative method of
compliance (AMOC) in accordance with the procedures specified in the
AMOCs paragraph under ``Other FAA Provisions.'' This new format
includes a ``New Provisions for Alternative Actions, Intervals, and
CDCCLs'' paragraph that does not specifically refer to AMOCs, but
operators may still request an AMOC to use an alternative action,
interval, or CDCCL.

Costs of Compliance

    The FAA estimates that this proposed AD affects 24 airplanes of
U.S. registry. The FAA estimates the following costs to comply with
this proposed AD:

    The FAA has determined that revising the existing maintenance or
inspection program takes an average of 90 work-hours per operator,
although the agency recognizes that this number may vary from operator
to operator. Since operators incorporate maintenance or inspection
program changes for their affected fleet(s), the FAA has determined
that a per-operator estimate is more accurate than a per-airplane
estimate.
    The FAA estimates the total cost per operator for the proposed
maintenance or inspection program revision to be $7,650 (90 work-hours
J $85 per work-hour).

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect 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.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Would not affect intrastate aviation in Alaska, and
    (3) Would not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by:
0
a. Removing Airworthiness Directive (AD) 2021-11-23, Amendment 39-21585
(86 FR 40932, July 30, 2021); and
0
b. Adding the following new AD:

Airbus SAS: Docket No. FAA-2021-0945; Project Identifier MCAI-2021-
01033-T.

(a) Comments Due Date

    The FAA must receive comments on this airworthiness directive
(AD) by December 13, 2021.

(b) Affected ADs

    This AD replaces AD 2021-11-23, Amendment 39-21585 (86 FR 40932,
July 30, 2021) (AD 2021-11-23).

(c) Applicability

    This AD applies Airbus SAS Model A350-941 and -1041 airplanes,
certificated in any category; with an original airworthiness
certificate or original export certificate of airworthiness issued
on or before June 30, 2021.

(d) Subject

    Air Transport Association (ATA) of America Code 05, Time Limits/
Maintenance Checks.

(e) Reason

    This AD was prompted by a determination that new or more
restrictive airworthiness limitations are necessary. The FAA is
issuing this AD to address the potential of ignition sources inside
fuel tanks, which, in combination with flammable fuel vapors, could
result in a fuel tank explosion and consequent loss of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Maintenance or Inspection Program Revision

    Except as specified in paragraph (h) of this AD: Comply with all
required actions and compliance times specified in, and in
accordance with, European Union Aviation Safety Agency (EASA) AD
2021-0209, dated September 15, 2021 (EASA AD 2021-0209).

(h) Exceptions to EASA AD 2021-0209

    (1) The requirements specified in paragraphs (1) and (2) of EASA
AD 2021-0209 do not apply to this AD.
    (2) Paragraph (3) of EASA AD 2021-0209 specifies revising ``the
AMP [aircraft maintenance program]'' within 12 months after its
effective date, but this AD requires revising the existing
maintenance or inspection program, as applicable, to incorporate the
``limitations, tasks and associated thresholds and intervals''
specified in paragraph (3) of EASA AD 2021-0209 within 90 days after
the effective date of this AD.
    (3) The initial compliance time for doing the tasks specified in
paragraph (3) of EASA AD 2021-0209 is at the applicable ``associated
thresholds'' specified in paragraph (3) of EASA AD 2021-0209, or
within 90 days after the effective date of this AD, whichever occurs
later.
    (4) The provisions specified in paragraphs (4) and (5) of EASA
AD 2021-0209 do not apply to this AD.
    (5) The ``Remarks'' section of EASA AD 2021-0209 does not apply
to this AD.

(i) Provisions for Alternative Actions, Intervals, and CDCCLs

    After the maintenance or inspection program has been revised as
required by paragraph (g) of this AD, no alternative actions (e.g.,
inspections), intervals, and critical design configuration control
limitations (CDCCLs) are allowed unless they are approved as
specified in the provisions of the ``Ref. Publications'' section of
EASA AD 2021-0209.

(j) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
Large Aircraft Section, International Validation Branch, FAA, has
the authority to approve AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector or responsible Flight
Standards Office, as appropriate. If sending information directly to
the Large Aircraft Section, International Validation Branch, send it
to the attention of the person identified in paragraph (k)(2) of
this AD. Information may be emailed to: [email protected].
Before using any approved AMOC, notify your appropriate principal
inspector, or lacking a principal inspector, the manager of the
responsible Flight Standards Office.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain instructions from a manufacturer, the instructions must be
accomplished using a method approved by the Manager, Large Aircraft
Section, International Validation Branch, FAA; or EASA; or Airbus
SAS's EASA Design Organization Approval (DOA). If approved by the
DOA, the approval must include the DOA-authorized signature.
    (3) Required for Compliance (RC): Except as required by
paragraph (j)(2) of this AD, if any service information contains
procedures or tests that are identified as RC, those

procedures and tests must be done to comply with this AD; any
procedures or tests that are not identified as RC are recommended.
Those procedures and tests that are not identified as RC may be
deviated from using accepted methods in accordance with the
operator's maintenance or inspection program without obtaining
approval of an AMOC, provided the procedures and tests identified as
RC can be done and the airplane can be put back in an airworthy
condition. Any substitutions or changes to procedures or tests
identified as RC require approval of an AMOC.

(k) Related Information

    (1) For information about EASA AD 2021-0209, contact EASA,
Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221
8999 000; email [email protected]; internet www.easa.europa.eu. You
may find this EASA AD on the EASA website at https://ad.easa.europa.eu. For Airbus service information identified in this
AD, contact Airbus SAS, Airworthiness Office--EAL, Rond-Point Emile
Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93
36 96; fax +33 5 61 93 45 80; email [email protected]; internet https://www.airbus.com. You
may view this material at the FAA, Airworthiness Products Section,
Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For
information on the availability of this material at the FAA, call
206-231-3195. This material may be found in the AD docket on the
internet at https://www.regulations.gov by searching for and
locating Docket No. FAA-2021-0945.
    (2) For more information about this AD, contact Dan Rodina,
Aerospace Engineer, Large Aircraft Section, International Validation
Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone
and fax<PHONE_NUMBER>; email [email protected].

    Issued on October 21, 2021.
Lance T. Gant,
Director, Compliance & Airworthiness Division, Aircraft Certification
Service.
[FR Doc. 2021-23345 Filed 10-28-21; 8:45 am]
BILLING CODE 4910-13-P


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:	August 6, 2010

SUBJECT:	Technical Support Document - West Virginia, Title 45,
Legislative Rule, Department of Environmental Protection, Air Quality,
Series 14, Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution for the Prevention of Significant
Deterioration

		/s/

FROM:	Sharon McCauley, Environmental Protection Specialist

Office of Permits and Air Toxics (3AP10)

TO:		File

THRU: 	Kathleen Anderson, Associate Director

Office of Permits and Air Toxics (3AP10)

I.	BACKGROUND

On July 20, 2009, the West Virginia Department of Environmental
Protection submitted a SIP revision that replaces the current version of
45CSR14 last approved by EPA on December 4, 2006 at 71 FR 64470.  This
revision governs permits for constructing and significantly modifying
major stationary sources of air pollutants.  The references to pollution
control projects and clean units were deleted in accordance with a
federal appellate court decision vacating those provisions. The United
States Court of Appeals for the District of Columbia Circuit ruled in
New York v. EPA, 413 F.3d 3 (D.C. Cir. June 24, 2005) that EPA lacked
the authority to promulgate the Clean Unit provisions, and the Court
requested that EPA vacate that portion of the 2002 Federal regulation,
codified at 40 CFR 52.21(x), as contrary to the statute. Also, the Court
determined EPA lacked the authority to create PCP exceptions from NSR
and vacated those parts of the 1991 and 2002 rules, codified at 40 CFR
52.21(b)(32) and 52.21(z), as contrary to the Statute.   Also, this
revision will establish NOx as a precursor to ozone in the State of West
Virginia and will and include the “reasonable possibility” federal
provision equivalent. This revision was made effective as a legislative
rule in West Virginia on June 1, 2009.

The Federal PSD program has undergone several relevant changes since the
last State SIP approval of its PSD permitting program.  The following
provides a summary of the final federal provision changes that occurred
from December 4, 2006 through the present that will not be part of this
revision request to the West Virginia's regulatory PSD SIP approved
program.

1.   Final Rule to Revise Nonattainment New source Review Regulations:
Appendix S

On February 28, 2007 - This final rule updated the regulations that
apply to the process for permitting new or modified industrial
facilities in areas that do not meet EPA's health based national air
quality standards for ground-level ozone and fine particle pollution.
These areas are known as nonattainment areas.

2.   Final Changes for Certain Ethanol Production Facilities Under Three
Clean Air Act Permitting Programs

On April 12, 2007 EPA’s final action modified the definition of a
"chemical process plant" as it applies to three Clean Air Act permitting
programs.

3.  Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Removal of Vacated Elements

On June 5, 2007 EPA removed provisions for pollution control projects
(PCP) and clean units (CU) from its New Source Review (NSR) regulations.
These provisions were part of EPA’s NSR improvement rule issued on
December 31, 2002. On June 24, 2005, the United States Court of Appeals
for the District of Columbia Circuit vacated the portions of the 2002
and 1992 NSR rules that pertained to CU and PCP.

4.   Rule Clarification Assures that New Source Review Program is
Applied Appropriately

On December 14, 2007 EPA issued a final rule to clarify when facilities
must keep records and report emissions when a “reasonable
possibility” test shows that projected emissions increases could equal
or exceed 50 percent of the Clean Air Act’s NSR significant levels for
any pollutant. This rule does not change permitting requirements.

5.  EPA Issues Final Rules Governing the Implementation of NSR for Fine
Particulate Matter

On May 8, 2008, the Environmental Protection Agency (EPA) issued final
rules governing the implementation of the New Source Review (NSR)
program for particulate matter less then 2.5 micrometers in diameter
(PM2.5). PM2.5 also is known as fine particles. This rule finalizes
several NSR program requirements for sources that emit PM2.5 and other
pollutants that contribute to PM2.5

6.  EPA Finalizes Rule Reconsidering Inclusion of Fugitive Emissions

On December 10, 2008, EPA finalized revisions to the December 31, 2002
New Source Review (NSR) Improvement rules to change the requirements of
the major NSR programs regarding the treatment of fugitive emissions.

7.  EPA issues an interpretive memorandum entitled "EPA's Interpretation
of Regulations That Determine Pollutants Covered by Federal Prevention
of Significant Deterioration (PSD) Permit Program."

On December 18, 2008 the Administrator issued an interpretive memorandum
entitled "EPA's Interpretation of Regulations That Determine Pollutants
Covered by Federal Prevention of Significant Deterioration (PSD) Permit
Program."

8. Final Rule Defines Approach for Grouping Projects under the New
Source Review Permitting Program

On January 12, 2009, EPA issued a final rule that revises the agency’s
policy on “aggregation.” For the purpose of determining whether NSR
applies, this rule directs facilities and permitting authorities to
combine, or aggregate, emissions from plant modifications when those
projects are related. Thus, total emissions for the related projects
must be considered when permitting authorities determine whether NSR
applies.

9. Denial of Petitions to Reconsider Aspects of the PM2.5 NSR
Requirements and Reasonable Possiblity Rule

January 15, 2009 - EPA has denied two petitions for reconsideration of
two final rules under the New Source Review permitting program for PM2.5
Requirements and Reasonable Possibility Rule.  Note well; West
Virginia’s regulations do comply with the Reasonable Possibility
rulemaking.

10. EPA Reconsiders New Source Review Final Rule

February 9, 2009 - To allow further review of the January 15, 2009,
final rule modifying the NSR air permitting program’s
“aggregation” policy, EPA is extending the effective date of the
rule. This action is in response to the White House’s January 20,
2009, and the Office of Management and Budget’s January 21, 2009,
memoranda regarding regulatory review. EPA also will reconsider one or
more of the aspects of this final rule raised by the Natural Resources
Defense Council in a petition for reconsideration. To allow time for the
review and the reconsideration, EPA will stay the effective date of this
rule for 90 days, until May 18, 2009.

11. Granting of Petitions to Reconsider Aspects of the Reasonable
Possibility, Fugitive Emissions and PM2.5 NSR Permitting Rules

April 24, 2009 - EPA notified petitioners of its intent to reconsider
portions of three rules under its New Source Review (NSR) permitting
program.

12. EPA extends effective date of the aggregation rule for 1-year

May 8, 2009 - This final rule extends until May 18, 2010, the effective
date of the January 12, 2009 aggregation rule. During this time, EPA
will reconsider the final aggregation rule.

13. Stays the "Grandfathering" Provision for the PM2.5 NSR Permitting
Rule for Nine Months

September 16, 2009 - EPA staying until June 22, 2010 the
"grandfathering" provision for particulate mater less than 2.5
micrometers (PM2.5) requirements in the Federal Prevention of
Significant Deterioration (PSD) program published in the Federal
Register on May 16, 2008.

14. Final Rule Facilitates the use of Flexible Air Permits

September 25, 2009 - Flexible air permits enable major air emissions
sources to implement operational plans and make anticipated changes to
these plans without further review and approval. These permits do not
provide approval for operational changes outside the scope authorized in
the initial permit and sources must still meet all Clean Air Act
requirements that apply to them. Pilot studies have shown that flexible
permitting approaches can minimize the need for permit revisions,
provide significant economic benefits, encourage innovation, and
increase public awareness -- all while ensuring equal or greater
environmental protection.

15. Approval and Promulgation of Wisconsin NSR Reform Regulations:
Denial of Petition for Reconsideration

January 20, 2010 - EPA responded to a petition from the NRDC and Sierra
Club. Their petition requested that EPA reconsider and stay of certain
parts of the Wisconsin's SIP. After carefully reviewing the petition for
reconsideration, EPA has denied it. EPA also denied NRDC's request for a
stay of the final rule approving the Wisconsin state plan.

16. Stay of Fugitive Emissions Rule for 18 Months

March 24, 2010 - EPA has stayed for 18 additional months, the rule
establishing how fugitive emissions should be treated for New Source
Review permitting. A previous stay will expire on March 30, 2010.

17. Stay of Aggregation Rule

May 6, 2010 - EPA extended the effective date of the January 15, 2009
final rule that modified the New Source Review air permitting
program’s policy on “Aggregation.”

18.  Final GHG Tailoring Rule

May 13, 2010 - EPA sets greenhouse gas (GHG) emissions thresholds to
define when permits under the New Source Review Prevention Significant
Deterioration (PSD) and title V Operating Permit programs are required
for new and existing industrial facilities. The State has the authority
to regulate GHGs, however, the State will now need to adopt the
equivalent federal threshold levels for GHGs based on the Tailoring
Rule.

In the previously approved NSR Reform SIP revision at 71 FR 64470 dated
December 4, 2006, West Virginia had requested that EPA not act upon the
provisions of 45 CSR 14.19.8 pertaining to the recordkeeping and
reporting requirements for sources that elect to use the
actual-to-projected actual emission test and where there is a
``reasonable possibility'' that a project may result in a significant
net emissions increase. EPA is now proposing to approve 45 CSR 14.19.8
into the West Virginia SIP revision with this proposed action as
regulatory corrections have been made to the State’s regulations dated
June 1, 2009.

EPA determined that the proposed amendments to West Virginia's
prevention of significant deterioration (PSD) permit program at 45 CSR
14, as submitted on July 20, 2009, meet the minimum requirements of 40
CFR 51.166 and the Clean Air Act. This amendment is being proposed for
approval as a revision to the West Virginia SIP.

II.	SUMMARY OF ACTION

This rule establishes a state construction permit program consistent
with the federal Clean Air Act’s Title I program and implementing
regulations at 40 CFR §51.166, “Prevention of Significant
Deterioration of Air Quality.” 45CSR14 is part of the State
Implementation Plan and sets forth the criteria and procedures for major
stationary sources to obtain a permit to construct, operate and/or
modify a major stationary source.

As required by 40 CFR Part 51, Subpart I - “Review of New Sources and
Modifications,” this rule adopts criteria and procedures for the
prevention of significant deterioration of air quality that are
consistent with the governing federal regulation at 40 CFR §51.166.
Promulgation of this rule by the Legislature is necessary for the State
to fulfill its responsibilities under 40 CFR Part 51 and the CAA, as
amended. Revisions to the WV rule have removed provisions for pollution
control projects (PCPs) and clean units (CUs) per a 2005 US Court of
Appeals for the District of Columbia Circuit court decision which
vacated these provisions in the federal counterpart.  These references
for PCPs and CUs now being deleted from the WV regulations, were never
part of the currently approved WV SIP.  This revision simply is adding
new references to include NOx as a precursor to ozone to comport with
federal counterpart language. The West Virginia Department of Air
Quality (DAQ) has now submitted a final rule 45CSR14 as a proposed
revision to the State Implementation Plan.

In the previously approved NSR Reform SIP revision at 71 FR 64470 dated
December 4, 2006, West Virginia had requested that EPA not act upon the
provisions of 45 CSR 14.19.8 pertaining to the recordkeeping and
reporting requirements for sources that elect to use the
actual-to-projected actual emission test and where there is a
``reasonable possibility'' that a project may result in a significant
net emissions increase. EPA is now proposing to approve 45 CSR 14.19.8
into the West Virginia SIP revision with this proposed action as
regulatory corrections have been made to the State’s regulations dated
June 1, 2009.

III.	PROGRAM REVIEW

A.	West Virginia Submittal

The West Virginia submittal includes revisions to the State rule to
remove provisions for pollution control projects and clean units per a
2005 U.S. Court of Appeals decision which vacated these provisions in
the federal counterpart.  These regulations were not part of the
previously approved PSD program approved at 71 FR 64470.  New references
were added to the State rule which include NOx as a precursor to ozone
in the proposed SIP revision package to comport with federal counterpart
language.

B.	Public Comment on the revised State rules contained in this SIP
approval– Comments were received from the Sierra Club, West Virginia
Chapter and the Environmental Protection Agency, Region III.  Changes as
described below, based on these comments, were included in this
submittal.

1. The Sierra Club requested several deletions of language,
specifically:

	2.40. d regarding use of fuel derived from municipal solid waste

	2.50 "plant-wide applicability limit"

    These deletions were not made in order for the rule to be consistent
with federal counterpart language.

2.  EPA sought clarification regarding West Virginia's intention to
revise their existing legislative language on the prevention of
significant deterioration (PSD) State Implementation Plan (SIP)
regarding NSR reform provisions that were not included in the regulatory
package received by EPA on August 11, 2008.  EPA commented on the
following:

a). Regarding New Source Review, §51.166, Reasonable Possibility in
Recordkeeping, EPA provided revised language for the amendments.

DAQ revised the rule to be consistent with EPA's comment and the current
federal counterpart language.

b). Regarding Major Emitting Facility Definition §51.166 Treatment of
Certain Ethanol Production Facilities Under Major Emitting Facility, EPA
provided revised language.

DAQ revised the rule to be consistent with EPA's comment and the current
federal counterpart language.

c). EPA provided revised language for §51.166 Prevention of Significant
Deterioration for Nitrogen Oxides Increment.

DAQ responded that the rule contains this language, which is consistent
with EPA's comment and current federal counterpart language.  The
language provided in EPA's comments simply provides flexibility to
states, and is not a necessary component of the state rule.

d). EPA provided revised language for §51.165 Permit Requirements
Clarification to add 'Replacement Unit' and PAL Baseline.

DAQ revised the rule by including the valid definition of "Replacement
Unit". However, DAQ has not included the following language in
parenthesis from that definition which reads (as discussed in paragraph
(y)(2) of this section),  as section (y) has been stayed indefinitely by
court order.  If the stay is lifted, DAQ will reinsert the phrase in
subsequent rulemaking.

DAQ has found that the rule already contains the following language
suggested by the commenter: Emissions from units on which actual
construction began after the 24-month period must be added to the PAL
level in an amount equal to the potential to emit of the units."

DAQ has revised the rule with a new subdivision 25.6.b, which contains
the language in (w)(6)(ii) above.

C.	Regulatory Review of Proposed SIP

WV DAQ Series 14-2 Definitions

The following is a brief summary of the changes.

Section	Status	Description

Regulation 2.17	Deletion	Deleted definition of Clean Units (CUs)

Regulation 2.40.i.	Deletion	Deleted reference to Pollution Control
Projects (PCPs) in the definition of major modification.

Regulation 2.46.d.2 and g.4	Deletion	Deleted reference to CUs in the
definition of net emissions increase.

Regulation

256	Deletion	Deleted definition of PCPs.

Regulation

2.74a	Modified	Modified to include NOx as a precursor to Ozone

Regulation

2.77	Clarification	Provided chart format for definition of significant
impact.  No text Change.

WV DAQ Series 14-3 Applicability

The following is a brief summary of the changes.

Section	Status	Description

Regulation 3.4.e and f	Deletion 	Deleted reference of CUs.

Regulation 3.6	Deletion	Deleted reference to PCPs.

WV DAQ Series 14-4 Ambient Air Quality and Ceilings

The following is a brief summary of the changes.

Section	Status	Description

Regulation 4.1	Clarification 	Provided chart format.  No text change.

Regulation 3.6	Deletion	Deleted reference to PCPs.

WV DAQ Series 14-13 Additional Requirements and Variances for Sources
Impacting Federal Class I Areas

The following is a brief summary of the changes.

Section	Status	Description

Regulation 13.6	Clarification 	Provided chart format.  No text change.

WV DAQ Series 14-16 Specific Exemptions

The following is a brief summary of the changes.

Section	Status	Description

Regulation 16.6.d	Modified	Modified to include NOx as a precursor to
ozone.

Regulation 16.7	Modified text 	Table 2 De Minimus Air Quality Impacts
was moved to chart in 16.6.d...

WV DAQ Series 14-19 Permit Transfer, Cancellation and Responsibility

The following is a brief summary of the changes.

Section	Status	Description

Regulation 19.8	Modified	Modified to exclude CUs and added text
regarding reasonable possibility.

WV DAQ Series 14-22 Clean Unit Test for Emission Units that are subject
to BACT or LAER

The following is a brief summary of the changes.

Section	Status	Description

Regulation 22.	Deleted	Deleted entire section.

WV DAQ Series 14-23 Clean Unit Provisions for Emission Units that
Achieve an Emission Limitation Comparable to BACT

The following is a brief summary of the changes.

Section	Status	Description

Regulation 23.	Deleted	Deleted entire section.

WV DAQ Series 14-24 PCP Exclusion Procedural Requirements

The following is a brief summary of the changes.

Section	Status	Description

Regulation 24.	Deleted	Deleted entire section.

IV.  Infrastructure

This SIP revision is also necessary to ensure that the SIP provides for
the attainment and maintenance of the NAAQS.  Section 110(a)(2)(C) of
the Act, 42 U.S.C. § 7410(a)(2)(C), requires the state SIP to have a
program for regulation of construction and modification of sources
including a permit program as required by Parts C of Title I of the Act
to assure NAAQS are achieved.   This action, upon approval will
establish NOx as a precursor to ozone and will accomplish programmatic
needs found in the Federal Register notice regarding infrastructure for
West Virginia dated March 27, 2008 73 FR 16205, page 16208.

NOx as a precursor to ozone became regulated under 40 CFR Part 51.166
and 40 CFR 52.21 on November 29, 2005 in Federal Register 70 FR 71612.
As such, this action would approve NOx as a precursor to ozone.

V.	RECOMMENDED AGENCY ACTION

EPA recommends approving the revision to West Virginia's SIP, 45CSR14 -
Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution for the Prevention of Significant
Deterioration. This revision will establish NOx as a precursor to ozone
and will also include “reasonable possibility” federal provision
equivalent.

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