[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Rules and Regulations]
[Pages 47062-47068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19692]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2010-0157; FRL-9447-6]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Section 110(a)(2) Infrastructure Requirements for the
1997 8-Hour Ozone and the 1997 and 2006 Fine Particulate Matter
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving submittals from the State of West Virginia
pursuant to the Clean Air Act (CAA) sections 110(k)(2) and (3). These
submittals address the infrastructure elements specified in the CAA
section 110(a)(2), necessary to implement, maintain, and enforce the
1997 8-hour ozone and fine particulate matter (PM2.5)
national ambient air quality standards (NAAQS) and the 2006
PM2.5 NAAQS. This final rule is limited to the following
infrastructure elements which were subject to EPA's completeness
findings pursuant to CAA section 110(k)(1) for the 1997 8-hour ozone
NAAQS dated March 27, 2008 and the 1997 PM2.5 NAAQS dated
October 22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H),
(J), (K), (L), and (M), or portions thereof.
DATES: Effective Date: This final rule is effective on September 6,
2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2010-0157. All documents in the docket are listed in
the http://www.regulations.gov Web site. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the State submittal are available at the
West Virginia Department of Environmental Protection, Division of Air
Quality, 601
[[Page 47063]]
57th Street SE, Charleston, West Virginia 25304.
FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. Background
On May 17, 2010 (75 FR 27510), EPA published a notice of proposed
rulemaking (NPR) for the State of West Virginia. The NPR proposed
approval of West Virginia's submittals that provide the basic program
elements specified in the CAA section 110(a)(2)(A), (B), (C), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof,
necessary to implement, maintain, and enforce the 1997 8-hour ozone and
PM2.5 NAAQS and the 2006 PM2.5 NAAQS. The formal
submittals by the State of West Virginia on December 3, 2007, May 21,
2008, and October 1, 2009 addressed the section 110(a)(2) requirements
for the 1997 8-hour ozone NAAQS; the submittals dated April 3, 2008,
May 21, 2008, October 1, 2009, and March 18, 2010 addressed the section
110(a)(2) requirements for the 1997 PM2.5 NAAQS; and the
submittals dated October 1, 2009 and March 18, 2010 addressed the
section 110(a)(2) requirements for the 2006 PM2.5 NAAQS.
II. Scope of Action on Infrastructure Submissions
EPA is currently acting upon State Implementation Plans (SIPs) that
address the infrastructure requirements of CAA section 110(a)(1) and
(2) for the ozone and PM2.5 NAAQS for various states across
the country. Commenters on EPA's recent proposals for some states
raised concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on those infrastructure SIP
submissions.\1\ Those commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction (SSM) at sources, that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA. EPA notes that there
are two other substantive issues for which EPA likewise stated in other
proposals that it would address the issues separately: (i) Existing
provisions for minor source new source review programs that may be
inconsistent with the requirements of the CAA and EPA's regulations
that pertain to such programs (``minor source NSR'') and (ii) existing
provisions for Prevention of Significant Deterioration programs that
may be inconsistent with current requirements of EPA's ``Final NSR
Improvement Rule,'' (67 FR 80186, December 31, 2002), as amended by the
NSR Reform Rule (72 FR 32526, June 13, 2007) (NSR Reform). In light of
the comments, EPA now believes that its statements in various proposed
actions on infrastructure SIPs with respect to these four individual
issues should be explained in greater depth.
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\1\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply. EPA did receive specific
adverse comments in this action that are discussed in more detail in
section IV.
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EPA intended the statements in the other proposals concerning these
four issues merely to be informational and to provide general notice of
the potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that EPA's approval of the infrastructure SIP submission
of a given state should be interpreted as a reapproval of certain types
of provisions that might exist buried in the larger existing SIP for
such state. Thus, for example, EPA explicitly noted that we believe
that some states may have existing SIP approved SSM provisions that are
contrary to the CAA and EPA policy, but that ``in this rulemaking, EPA
is not proposing to approve or disapprove any existing State provisions
with regard to excess emissions during SSM of operations at
facilities.'' EPA further explained, for informational purposes, that
``EPA plans to address such State regulations in the future.'' EPA made
similar statements, for similar reasons, with respect to the director's
discretion, minor source NSR, and NSR Reform issues. EPA's objective
was to make clear that approval of an infrastructure SIP for these
ozone and PM2.5 NAAQS should not be construed as explicit or
implicit reapproval of any existing provisions that relate to these
four substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those proposals, however, we want to explain more
fully EPA's reasons for concluding that these four potential
substantive issues in existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP''
[[Page 47064]]
submissions required to address the nonattainment planning requirements
of part D, ``regional haze SIP'' submissions required to address the
visibility protection requirements of CAA section 169A, new source
review permitting program submissions required to address the
requirements of part D, and a host of other specific types of SIP
submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\2\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\3\
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\2\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' (70 FR
25162, May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\4\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because EPA bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\5\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's SIP.
Finally, EPA notes that not every element of section 110(a)(2) would be
relevant, or as relevant, or relevant in the same way, for each new or
revised NAAQS and the attendant infrastructure SIP submission for that
NAAQS. For example, the monitoring requirements that might be necessary
for purposes of section 110(a)(2)(B) for one NAAQS could be very
different than what might be necessary for a different pollutant. Thus,
the content of an infrastructure SIP submission to meet this element
from a state might be very different for an entirely new NAAQS, versus
a minor revision to an existing NAAQS.\6\
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\4\ See, e.g., Id., (70 FR 25162, at 63-65, May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\5\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\7\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
EPA characterized as the ``infrastructure'' elements for SIPs, which it
further described as the ``basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards.'' \8\ As further identification of these
basic structural SIP requirements, ``attachment A'' to the guidance
document included a short description of the various elements of
section 110(a)(2) and additional information about the types of issues
that EPA considered germane in the context of such infrastructure SIPs.
EPA emphasized that the description of the basic requirements listed on
attachment A was not intended ``to constitute an interpretation of''
the requirements and was merely a ``brief description of the
[[Page 47065]]
required elements.'' \9\ EPA also stated its belief that with one
exception, these requirements were ``relatively self explanatory, and
past experience with SIPs for other NAAQS should enable states to meet
these requirements with assistance from EPA Regions.'' \10\ For the one
exception to that general assumption, however, i.e., how states should
proceed with respect to the requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much more specific
recommendations. But for other infrastructure SIP submittals, and for
certain elements of the submittals for the 1997 PM2.5 NAAQS,
EPA assumed that each state would work with its corresponding EPA
regional office to refine the scope of a state's submittal based on an
assessment of how the requirements of section 110(a)(2) should
reasonably apply to the basic structure of the state's SIP for the
NAAQS in question.
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\7\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
\8\ Id., at page 2.
\9\ Id., at attachment A, page 1.
\10\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\11\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS.
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\11\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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Significantly, neither the 2007 Guidance nor the 2009 Guidance
explicitly referred to the SSM, director's discretion, minor source
NSR, or NSR Reform issues as among specific substantive issues EPA
expected states to address in the context of the infrastructure SIPs,
nor did EPA give any more specific recommendations with respect to how
states might address such issues even if they elected to do so. The SSM
and director's discretion issues implicate section 110(a)(2)(A), and
the minor source NSR and NSR Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to
states that it intended to interpret these provisions as requiring a
substantive submission to address these specific issues in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's other proposals mentioned these
issues not because EPA considers them issues that must be addressed in
the context of an infrastructure SIP as required by section 110(a)(1)
and (2), but rather because EPA wanted to be clear that it considers
these potential existing SIP problems as separate from the pending
infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever EPA determines that a state's SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\12\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\13\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude EPA's subsequent reliance on provisions in section 110(a)(2)
as part of the basis for action at a later time. For example, although
it may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may
be among the statutory bases that EPA cites in the course of addressing
the issue in a subsequent action.\14\
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\12\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' (74 FR 21639, April 18, 2011).
\13\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas-Emitting Sources in State
Implementation Plans; Final Rule,'' (75 FR 82536, Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that EPA determined it had approved in
error. See, e.g., (61 FR 38664, July 25, 1996) and (62 FR 34641,
June 27, 1997) (corrections to American Samoa, Arizona, California,
Hawaii, and Nevada SIPs); (69 FR 67062, November 16, 2004)
(corrections to California SIP); and (74 FR 57051, November 3, 2009)
(corrections to Arizona and Nevada SIPs).
\14\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., (75 FR 42342-42344, July 21, 2010)
(proposed disapproval of director's discretion provisions); (76 FR
4540, Jan. 26, 2011) (final disapproval of such provisions).
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EPA's proposed approval of the infrastructure SIP submissions from
West Virginia predated the actions on the submissions of other states
and thus occurred before EPA decided to provide the informational
statements concerning the SSM, director's discretion, minor source NSR,
and NSR Reform issues as specific substantive issues that EPA was not
addressing in this context. However, EPA determined that these four
issues
[[Page 47066]]
should be addressed, as appropriate, separately from the action on the
infrastructure SIPs for this state for the same reasons. Given this
determination, EPA did not address these substantive issues in the
prior proposals. Accordingly, EPA emphasizes that today's action should
not be construed as a reapproval of any potential problematic
provisions related to these substantive issues that may be buried
within the existing SIP of this state. To the extent that there is any
such existing problematic provision that EPA determines should be
addressed, EPA plans to address such provisions in the future. In the
meantime, EPA encourages any state that may have a deficient provision
related to these issues to take steps to correct it as soon as
possible.
III. Summary of SIP Revision
The submittals referenced in the Background section above address
the infrastructure elements specified in the CAA section 110(a)(2).
These submittals refer to the implementation, maintenance, and
enforcement of the 1997 8-hour ozone, the 1997 PM2.5 NAAQS,
and the 2006 PM2.5 NAAQS. The rationale supporting EPA's
proposed action is explained in the NPR and the technical support
document (TSD) and will not be restated here. EPA is also revising the
portion of the TSD relating to section 110(a)(2)(D)(ii) in order to
provide a more accurate and detailed explanation of the rationale
supporting EPA's approval. The TSD is available online at http://www.regulations.gov, Docket number EPA-R03-OAR-2010-0157. Finally, on
June 16, 2010, EPA received comments on its May 17, 2010 NPR. A summary
of the comments submitted and EPA's responses are provided in Section
IV of this document.
IV. Summary of Public Comments and EPA Responses
Comment: The commenter objected generally to EPA's proposed
approval of the infrastructure SIP submissions on the grounds that the
existing West Virginia SIP contains provisions addressing excess
emissions during periods of SSM that do not meet the requirements of
the CAA. The commenter argued that even though the SIP revision that
EPA proposed to approve in this action did not contain the provisions
to which the commenter objects, the presence of existing startup,
shutdown, and malfunction provisions in West Virginia's SIP that are
contrary to the CAA compromise the State's ability to ensure compliance
with the PM2.5 and ozone NAAQS. The commenter specifically
objected to EPA's proposed approval because of existing provisions of
the West Virginia SIP that pertain to opacity limits applicable to
certain indirect heat exchanger sources. According to the commenter,
these provisions allow exceedences of the otherwise applicable opacity
standards during SSM events.
Response: EPA disagrees with the commenter's view that if a state's
existing SIP contains any arguably illegal existing SSM provision, then
EPA cannot approve the infrastructure SIP submission of that state. As
discussed in more detail in section II of this final rulemaking, EPA
does not agree that an action upon the infrastructure SIP required by
section 110(a)(1) and (2) requires that EPA address any existing SSM
provisions.
EPA shares the commenter's concerns that certain existing SSM
provisions may be contrary to the CAA and existing EPA guidance, and
that such provisions can have an adverse impact on air quality control
efforts in a given state. EPA plans to address such provisions in the
future, as appropriate, and in the meantime encourages any state having
a deficient SSM provision to take steps to correct it as soon as
possible. EPA is not evaluating the merits of the commenter's claims
with respect to the particular provisions identified in the comments in
this action because EPA considers these to be beyond the scope of this
action.
Comment: The commenter also objected to EPA's proposed approval of
the infrastructure SIP submission because of existing provisions of the
West Virginia SIP that pertain to opacity standards applicable to hot
mix asphalt sources. According to the commenter, these provisions
enable the sources to have higher opacity during SSM events and that
such provisions do not meet EPA guidance with respect to such higher
limits in order to minimize excess emissions. The commenter argued that
because the emissions limits at issue are part of the existing SIP, the
state should be required to remove the provisions unless they meet
certain criteria.
Response: As stated in the previous response, EPA disagrees with
the commenter's view that if a state's existing SIP contains any
arguably illegal existing SSM provision, then EPA cannot approve the
infrastructure SIP submission of that state. As discussed in more
detail in section II of this final rulemaking, EPA does not agree that
an action upon the infrastructure SIP required by section 110(a)(1) and
(2) requires that EPA address any existing SSM provisions.
EPA is not evaluating the merits of the commenter's claims with
respect to the particular provisions identified in the comments in this
action because EPA considers these to be beyond the scope of this
action.
Comment: The commenter asserted that the existing West Virginia SIP
needs to be strengthened with respect to specific ``affirmative
defense'' provisions applicable to indirect heat exchanger sources
during malfunctions. The commenter stated that the provisions in
question conform to EPA guidance ``in some respects,'' but argued that
the provisions do not meet all of the recommendations of EPA guidance
and provided its views as to how the provisions should be revised. The
commenter argued that such provisions are necessary to ``ensure
compliance with the PM2.5 NAAQS.''
Response: EPA disagrees with the commenter's view that if a state's
existing SIP contains any arguably illegal existing SSM provision,
including a provision that includes an ``affirmative defense'' during
malfunctions that may not fully comply with EPA's policy for such
defenses, then EPA cannot approve the infrastructure SIP submission of
that state. As discussed in more detail in section IV of this final
rulemaking, EPA does not agree that an action upon the infrastructure
SIP required by section 110(a)(1) and (2) requires that EPA address any
existing SSM provisions. This would include reviewing any affirmative
defense provisions that relate to excess emissions during SSM events.
EPA is not evaluating the merits of the commenter's claims with respect
to the particular provisions identified in the comments in this action
because EPA considers these to be beyond the scope of this action.
Comment: In addition to more general concerns about the impacts of
excess emissions during SSM events, the commenter specifically
expressed concern that such emissions could have impacts contrary to
the CAA ``whether in the State of West Virginia, or elsewhere
downwind.'' Thus, the commenter argued that such provisions would be
contrary to both section ``110(a)(2)(A) and (D).'' EPA presumes that
the commenter's reference to ``D'' was intended to be a reference to
the interstate transport provisions of section 110(a)(2)(D)(i)(I),
given the context of the statements about impacts of emissions on
attainment of the NAAQS in other states.
Response: EPA disagrees with the commenter's assertion. First, as
was explained in the proposed action, EPA is not addressing the
requirement of
[[Page 47067]]
section 110(a)(D)(i) in these actions. Therefore, the comment is not
germane to this action. Second, the commenter did not provide support
for the contention that excess emissions during such events do have the
impacts on other states prohibited by section 110(a)(2)(D)(i). At this
time, EPA does not have information indicating that such excess
emissions could have such impacts on any areas. Absent information
indicating such impacts, EPA believes that there is no factual basis
for the commenter's contention.
V. Final Action
EPA is approving the State of West Virginia's submittals that
provide the basic program elements specified in the CAA sections
110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and
(M), or portions thereof, necessary to implement, maintain, and enforce
the 1997 8-hour ozone and PM2.5 NAAQS and the 2006
PM2.5 NAAQS to West Virginia's SIP.
EPA made completeness findings for the 1997 8-hour ozone NAAQS on
March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for
the 1997 PM2.5 NAAQS. These findings pertained only to
whether the submissions were complete, pursuant to section
110(k)(1)(A), and did not constitute EPA approval or disapproval of
such submissions. The March 27, 2008 (73 FR 16205) action made a
completeness finding that the West Virginia submittals of December 3,
2007 and April 3, 2008 addressed some but not all of the 110(a)(2)
requirements. Specifically, EPA found that West Virginia failed to
address sections 110(a)(2)(B), (E)(i), (G) (with respect to authority
comparable to section 303), (H) and (J) (relating to public
notification under section 127), (M), and Part C PSD permit program
required by the November 29, 2005 (70 FR 71612, page 71699) final rule
that made nitrogen oxides (NOX) a precursor for ozone in the
Part C regulations found in 40 CFR 51.166 and in 40 CFR 52.21. The May
21, 2008 West Virginia submittal, described above and in the technical
support document, addressed these findings, with the exception of the
Part C PSD.
EPA has taken separate action on the portions of section
110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS as they relate to
West Virginia's PSD permit program. With respect to this permit
program, on November 29, 2005 (70 FR 71612), EPA promulgated a change
that made NOX a precursor for ozone in the Part C
regulations at 40 CFR 51.166 and 40 CFR 52.21. In the March 27, 2008
completeness findings, EPA determined that while West Virginia had an
approved PSD program in its SIP codified at 40 CFR 52.2520, West
Virginia's regulation, 45CSR14, did not fully incorporate
NOX as a precursor for ozone. On July 20, 2009, West
Virginia submitted revisions to 45CSR14 to include NOX as a
precursor for ozone. EPA has approved this PSD SIP revision and element
110(a)(2)(C) as it pertains to the PSD permit program for the 1997 8-
hour ozone NAAQS was addressed in this separate action. A notice of
proposed rulemaking was published on December 17, 2010 (75 FR 78949)
and a final rulemaking notice was published on May 27, 2011 (76 FR
30832).
Two elements identified in section 110(a)(2) are not governed by
the three year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the time the nonattainment area plan requirements are
due pursuant to section 172. These elements are: (i) Submissions
required by section 110(a)(2)(C) to the extent that subsection pertains
to a permit program in Part D Title I of the CAA; and (ii) any
submissions required by section 110(a)(2)(I), which pertain to the
nonattainment planning requirements of Part D Title I of the CAA. This
action does not cover these specific elements. This action also does
not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-
hour ozone and PM2.5 NAAQS and the 2006 PM2.5
NAAQS. A portion of these 110(a)(2)(D)(i) requirements have been
addressed by separate findings issued by EPA (see (70 FR 21147, April
25, 2005); (75 FR 32673, June 9, 2010); and (75 FR 45210, August 2,
2010)). A portion of these requirements are addressed through 110(a)(2)
SIP submittals, which EPA will be addressing through separate action.
VI. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate,
[[Page 47068]]
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 3, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action pertaining to West Virginia's section 110(a)(2)
infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS, 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: July 22, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
0
2. In Sec. 52.2520, the table in paragraph (e) is amended by adding
entries at the end of the table for Section 110(a)(2) Infrastructure
Requirements for the 1997 8-Hour Ozone NAAQS, Section 110(a)(2)
Infrastructure Requirements for the 1997 PM2.5 NAAQS, and
Section 110(a)(2) Infrastructure Requirements for the 2006
PM2.5 NAAQS. The amendments read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable geographic State submittal Additional
revision area date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Statewide............. 12/3/07, 5/21/08 8/4/11 [Insert This action
Infrastructure Requirements page number addresses the
for the 1997 8-Hour Ozone where the following CAA
NAAQS. document begins]. elements or
portions
thereof:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
Section 110(a)(2) Statewide............. 4/3/08, 5/21/08, 8/4/11 [Insert This action
Infrastructure Requirements 7/9/08, 3/18/10 page number addresses the
for the 1997 PM2.5 NAAQS. where the following CAA
document begins]. elements or
portions
thereof:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
Section 110(a)(2) Statewide............. 10/1/09, 3/18/10 8/4/11 [Insert This action
Infrastructure Requirements page number addresses the
for the 2006 PM2.5 NAAQS. where the following CAA
document begins]. elements or
portions
thereof:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
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[FR Doc. 2011-19692 Filed 8-3-11; 8:45 am]
BILLING CODE 6560-50-P