[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Rules and Regulations]
[Pages 63736-63743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25386]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2012-0388; FRL-9738-2]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Prevention of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting full approval of revisions to the West
Virginia State Implementation Plan (SIP), submitted by the State of
West Virginia through the West Virginia Department of Environmental
Protection (WVDEP) on August 31, 2011, with the exception of the narrow
issue of the requirement to include condensable emissions of
particulate matter (condensables) in the definition of ``regulated NSR
pollutant'' in the State's Prevention of Significant Deterioration
(PSD) program. These revisions pertaining to West Virginia's PSD
program incorporate preconstruction permitting regulations for fine
particulate matter (PM2.5) and Greenhouse Gases (GHGs) into
the West Virginia SIP. In light of a comment received on the July 31,
2012 proposed rule, EPA is reviewing West Virginia State Rule 45CSR14
to determine the extent to which its definition of ``regulated NSR
pollutant'' satisfies the corresponding Federal definition, and will
address this issue in a separate action. In addition, EPA is granting
full approval of the PSD portions of other related infrastructure
submissions required by the Clean Air Act (CAA) which are necessary to
implement, maintain, and enforce the 1997 PM2.5 and ozone
National Ambient Air Quality Standards (NAAQS), the 2006
PM2.5 NAAQS, and the 2008 lead and ozone NAAQS, with the
exception of the narrow issue of the requirement to include
condensables in the definition of ``regulated NSR pollutant.'' EPA will
address this issue in a separate action. EPA is granting approval of
these revisions in accordance with the requirements of the CAA.
[[Page 63737]]
DATES: This final rule is effective on November 16, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2012-0388. All documents in the docket are listed in
the 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 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 57th Street SE.,
Charleston, West Virginia 25304.
FOR FURTHER INFORMATION CONTACT: Michael Gordon, (215) 814-2039, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 31, 2012 (77 FR 45302), EPA proposed approval of amendments
to the PSD permitting regulations under West Virginia State Rule
45CSR14, Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution for the Prevention of Significant
Deterioration, submitted by the WVDEP as a SIP revision on August 31,
2011. The August 31, 2011 SIP revision submitted by West Virginia
generally pertains to two Federal rulemaking actions. The first is the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter less than 2.5 Micrometers (PM2.5)'' (NSR
PM2.5 Rule), which was promulgated on May 16, 2008 (73 FR
28321). The second is the ``Prevention of Significant Deterioration and
Title V Greenhouse Gas Tailoring Rule'' (Tailoring Rule), which was
promulgated on June 3, 2010 (75 FR 31514). In addition to the August
31, 2011 SIP submission, EPA also proposed to approve those portions of
previous SIP submissions from WVDEP which address the PSD-related
requirements set forth in CAA section 110(a)(2)(D)(i)(II) for the 1997
PM2.5 NAAQS, 1997 8-hour ozone NAAQS, 2006 PM2.5
NAAQS, 2008 lead NAAQS, and 2008 ozone NAAQS, as well as CAA section
110(a)(2)(C) and (J) for the 2008 lead NAAQS and 2008 ozone NAAQS.
These previous SIP submissions, submitted by West Virginia to satisfy
the PSD-related provisions found in CAA section 110(a)(2) are referred
to as infrastructure SIP submissions. All of these State submittals, as
well as technical support documents (TSDs) in support of the proposed
and final actions are included in the docket. The July 31, 2012 notice
of proposed rulemaking (NPR) and its supporting TSD contain detailed
discussions of the West Virginia SIP submissions, their relationship to
the CAA and the Federal regulatory PSD SIP requirements of 40 CFR part
51.166 applicable as of the time of the August 31, 2011 submittal, as
well as the PSD-related infrastructure requirements in CAA section
110(a)(2), and EPA's rationale for its proposed action; therefore,
those discussions will not be restated here. A summary of the comments
received and EPA's responses are provided in Section II of this
document.
II. Public Comments and EPA's Responses
EPA received comments on the July 31, 2012 proposal to approve West
Virginia's revisions to its SIP's PSD permitting requirements and to
approve portions of infrastructure submissions relating to West
Virginia's PSD permit program. The portions of the infrastructure
submittals at issue relate to the PSD requirements of CAA sections
110(a)(2)(C), (D)(i)(II) and (J) for the 2008 lead NAAQS and the 2008
ozone NAAQS, and CAA sections 110(a)(2)(D)(i)(II) for the 1997
PM2.5 NAAQS, 1997 ozone NAAQS, and the 2006 PM2.5
NAAQS. A summary of those comments and EPA's responses are as follows:
Comment: A commenter raises issues regarding the current economy in
the State of West Virginia and contends that Federal air pollution
requirements imposed since the 1970s have resulted in the economic
decline in the Northern Panhandle.
Response: EPA thanks the commenter for the submittal. For purposes
of background, EPA is acting on SIP submissions that reflect State law
in effect at the time of the submittals. The commenter has not raised
any specific issue relating to the proposed approval of West Virginia's
SIP submittals at issue in this rulemaking process. Nor has the
commenter given any indication of what action they would prefer EPA to
take on West Virginia's SIP submittals. Therefore, EPA views this
comment as being not relevant to EPA's proposed action and EPA does not
have any obligation to respond to this general and unrelated comment.
See Sherley v. Sebellius, 776 F. Supp. 2d 1, 53-54 (D.D.C. 2011)
(stating Federal agency must only respond to significant comments
relevant to an agency's decision); Conference of State Bank Supervisors
v. Office of Thrift Supervision, 792 F. Supp. 837, 846 (D.D.C. 1992)
(finding agencies need only respond to significant comments under the
Administrative Procedure Act).
Comment: EPA cannot approve the infrastructure SIPs because the
significant emissions rates in the SIP and other de minimis exceptions
are arbitrary and capricious with regard to the 2008 ozone and lead
NAAQS.
EPA's Response: EPA disagrees with the commenter that we cannot
approve the infrastructure SIPs because the significant emissions rates
and other de minimis exceptions are arbitrary and capricious. The
purpose of this rulemaking is to take action on West Virginia's SIP
revision submittals based upon their consistency with Federal
regulations. The significant emissions applicability levels of 0.6 tons
per year (TPY) for lead and 40 tons TPY for VOCs and for NOX
required by West Virginia's PSD permitting regulations mirror the
Federal requirements found at 40 CFR 51.166(b)(23)(i) and 40 CFR
52.21(b)(23)(i). West Virginia's proposed SIP revision satisfies the
obligation that its SIP's PSD regulation meet 40 CFR 51.166(b)(23)(i).
In fact, West Virginia's regulatory language mirrors the Federal
counterpart language. Therefore, EPA has no basis to disapprove West
Virginia's regulatory language and require West Virginia to meet an
alternative standard which EPA has not established through the required
administrative rulemaking process. West Virginia is not required to
revise the significant emissions rates in question unless and until EPA
revises the Federal requirements at 40 CFR 51.166(b)(23)(i) and 40 CFR
52.21(b)(23)(i). For these reasons, EPA disagrees with the commenter's
assertion that the significant emissions applicability thresholds in
the West Virginia SIP's PSD regulation are arbitrary and capricious
with regard to the 2008 ozone and lead NAAQS.
Comment: One commenter objects to the EPA's proposed approval of
the State's infrastructure SIP submissions for the 1997 and 2006
PM2.5 and the 1997 and 2008 8-hour ozone and the 2008 lead
NAAQS on the grounds that ``EPA has promulgated increments for
PM2.5. See 75 FR 64,864 (Oct. 20, 2010).
[[Page 63738]]
However, the proposed West Virginia SIP does not include these
increments even though the increments became applicable on October 12,
2011 * * *. Therefore EPA cannot approve the West Virginia
Infrastructure SIP regarding the PSD elements for PM2.5.''
\1\ The commenter argues that ``(s)tates are required to include these
increments in their SIPs before EPA can fully-approve an infrastructure
submission.'' However, the commenter also acknowledges that the States
had until July 20, 2012 to amend their SIPs to address the
PM2.5 increments required by the requirements of the 2010
PM2.5 NSR/PSD Rule. With respect to this July 20, 2012
deadline, the commenter asserts that because the proposed rule at issue
was published in the Federal Register on July 31, 2012, the proposed
rule was published after the deadline by which States were required to
submit SIP revisions in compliance with the 2010 PM2.5 NSR/
PSD Rule. Therefore, as of the date that the proposed rule was
published in the Federal Register (July 31, 2012), the PM2.5
increments were required to be included in West Virginia's SIP in order
for West Virginia to meet the PSD requirements of sections
110(a)(2)(C), (D)(i)(II) and (J) of the CAA.
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\1\ The commenter is referring to a separate rulemaking action
by EPA: ``Prevention of Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant
Monitoring Concentration (SMC),'' 75 FR 64864 (Oct. 20, 2010). This
collateral rulemaking concerned various issues relevant to
PM2.5 and PSD, including increments, significant impact
levels, and a significant monitoring concentration. This rule will
be referred to herein as the ``2010 PM2.5 NSR/PSD Rule.''
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In addition to the above assertions, the commenter sets forth three
reasons why EPA should not approve the specific CAA 110(a)(2) SIPs
without first ensuring that West Virginia's SIP includes the
PM2.5 increments set forth at 40 CFR Sec. 51.166(c): (1)
EPA should not allow proposed major sources in West Virginia ``to avoid
PSD requirements like PM2.5 increments, while proposed major
sources in other states * * * have to comply with this requirement'';
(2) because EPA has proposed approval of the PSD requirements of CAA
110(a)(2) for the 2008 ozone and lead NAAQS, EPA will not have another
opportunity to ``revisit this issue of lack of PM2.5
increments''; and (3) because emissions of PM2.5 and its
precursors have negative effects on public health and welfare, EPA's
full approval of West Virginia's infrastructure SIPs ``would cause
innocent people to be killed by illegal PM2.5 emissions.''
The commenter concludes by stating that: ``EPA must disapprove the PSD
elements of the Infrastructure SIPs for failure to include the
PM2.5 increments. In the alternative, EPA could grant a
conditional approval if West Virginia agrees to adopt the
PM2.5 increments into its SIP within one year.''
Response: EPA disagrees with the commenter that we cannot approve
this SIP submission without inclusion of increments. The commenter
asserts that the EPA should now disapprove the West Virginia
infrastructure SIP because, since the date of EPA's proposal, the
deadline for the submission of a SIP revision addressing the
PM2.5 increments has passed. However, pursuant to the 2010
PM2.5 NSR/PSD Rule and CAA section 166(b), States were not
required to submit a revised SIP addressing the PM2.5
increments until July 20, 2012. EPA proposed action on the West
Virginia infrastructure SIP in a notice signed on July 18, 2012.\2\
Therefore, on the date that the proposed rule was signed by the
Regional Administrator, the PM2.5 increments were not
required to be included in the West Virginia SIP in order for West
Virginia to meet the PSD requirements of CAA sections 110(a)(2)(C),
(D)(i)(II) and (J) of the Act.\3\
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\2\ Although the notice was published by the Federal Register on
July 31, 2012, the notice was signed by the Regional Administrator
on July 18, 2012, before the statutory deadline for submission of
the SIP revision addressing the PM2.5 increments.
\3\ The commenter cites to a rulemaking in Region 5 wherein EPA
proposed to narrowly disapprove a Michigan SIP to the extent that it
failed to address the requirement to account for PM2.5
precursors in the State's PSD program. That rulemaking, however,
addressed requirements from the 2008 PM2.5 NSR
Implementation Rule for which the deadline for States to revise
their SIPs had passed more than a year prior at the time of
proposal. See 77 Fed. Reg. 45,992 (Aug. 2, 2012). In this case, the
deadline for West Virginia to revise its SIP to address
PM2.5 increments had not passed at the time of proposal.
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The commenter's concerns relate to the timing of EPA action on
collateral, yet related, SIP submissions. These concerns highlight an
important overarching question that the EPA has to confront when
assessing the various infrastructure SIP submittals addressed in the
proposed rule: how to proceed when the timing and sequencing of
multiple related SIP submissions impact the ability of the State and
the EPA to address certain substantive issues in the infrastructure SIP
submission in a reasonable fashion.
It is appropriate for the EPA to take into consideration the timing
and sequence of related SIP submissions as part of determining what it
is reasonable to expect a State to have addressed in an infrastructure
SIP submission for a NAAQS at the time when the EPA acts on such
submission. The EPA has historically interpreted section 110(a)(2)(C),
section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to require the
EPA to assess a State's infrastructure SIP submission with respect to
the then-applicable and Federally enforceable PSD regulations required
to be included in a State's SIP at the time EPA takes action on the
SIP. However, the EPA does not consider it reasonable to interpret
section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section
110(a)(2)(J) to require the EPA to propose to disapprove a State's
infrastructure SIP submissions because the State had not yet, at the
time of proposal, made a submission that was not yet due for the 2010
PM2.5 NSR/PSD Rule. To adopt a different approach by which
the EPA could not act on an infrastructure SIP, or at least could not
approve an infrastructure SIP, whenever there was any impending
revision to the SIP required by another collateral rulemaking action
would result in regulatory gridlock and make it impracticable or
impossible for EPA to act on infrastructure SIPs if EPA is in the
process of revising collateral PSD regulations. The EPA believes that
such an outcome would be an unreasonable reading of the statutory
process for the infrastructure SIPs contemplated in section 110(a)(1)
and (2).
The EPA acknowledges that it is important that these additional PSD
program revisions be evaluated and approved into the State's SIP in
accordance with the CAA. In fact, West Virginia made the submission
required by the 2010 PM2.5 NSR/PSD Rule on June 12, 2010,
and the EPA therefore intends to address the PM2.5
increments in a subsequent rulemaking. EPA also acknowledges the
commenter's concern about the potential for sources not being evaluated
with respect to increments during the interim period while new PSD
program revisions are being evaluated. However, EPA notes that it is
implicit in the SIP processing procedures under CAA section 110(k) and
the timing of notice and comment rulemaking that there will often be
interim periods during which a State has adopted and submitted a new
State law requirement in order to meet a CAA requirement, but the EPA
will not yet have acted upon it to make it a Federally enforceable part
of the State's SIP.
Moreover, major sources in West Virginia are subject to the
PM2.5 increments pursuant to the version of the regulation,
45CSR14, currently in effect in West Virginia. Because the regulations
relating to PM2.5 increments are currently effective and
enforceable
[[Page 63739]]
as a matter of State law, as of June 1, 2012, the EPA in the interim
believes that proposed major sources in West Virginia are being
required as a matter of State law to comply with the PSD requirements
like PM2.5 increments and thus that these sources are not
being treated differently under State law than similar sources in other
States that have approved SIP revisions that include the increments.
The only distinction between West Virginia and the other States
identified by the commenter is that those other States submitted their
SIP revisions addressing the PM2.5 increments far enough in
advance of EPA's action on the States' infrastructure SIPs to begin the
administrative rulemaking process for such SIP revisions. Thus, the EPA
does not believe that approving the State's infrastructure SIP
submissions at this time will lead to major sources in West Virginia
being treated differently than similar sources in the other States as a
factual matter. If the commenter determines that sources are not being
evaluated in accordance with applicable State law requirements during
the interim before EPA acts on a later SIP submission, those concerns
can be addressed in the State's permitting process.
The EPA shares the commenter's concerns that emissions of
PM2.5 and its precursors have negative effects on public
health and welfare. However, EPA has no basis on which to find that
EPA's approval of West Virginia's infrastructure SIPs ``would cause
innocent people to be killed by illegal PM2.5 emissions.''
As explained above, the State is addressing PM2.5 increments
in the version of 45CSR14 currently adopted pursuant to State
regulatory requirements. West Virginia made the SIP submission required
by the 2010 PM2.5 NSR/PSD Rule to reflect that its PSD
permitting program now includes PM2.5 increments as required
by the 2010 PM2.5 NSR/PSD Rule. EPA will be acting on that
submission in a separate rulemaking action in accordance with section
110(k). Until such time as EPA evaluates West Virginia's submission and
takes the necessary rulemaking actions, EPA notes the fact that the
revisions have been made and are currently enforceable for purposes of
State law.
Finally, EPA has considered the suggestion that, rather than
approving the State's infrastructure SIPs, the EPA ``could grant a
conditional approval'' of the infrastructure SIPs if West Virginia
agrees to adopt the PM2.5 increments as required by the 2010
PM2.5 NSR/PSD Rule into its SIP within one year.
The EPA interprets the commenter's suggestion that EPA grant
``conditional approval'' of the State's infrastructure SIP submissions
to be a reference to the concept of conditional approval under section
110(k)(4). The EPA considered the commenter's suggestion as a means of
addressing the SIP submission timing issue, but EPA is constrained by
the provisions of the statute. Section 110(k)(4), under the rubric of
``conditional approval,'' explicitly authorizes EPA to approve a SIP
submission ``based on a commitment of the State to adopt specific
enforceable measures by a date certain, but not later than 1 year after
the date of approval of the plan revision.'' Courts have confirmed that
conditional approvals are an available course of action under section
110(k), but only if the statutory conditions for such conditional
approvals can be met.
Based on the specific language of section 110(k)(4), EPA concludes
that it would not be appropriate to use the mechanism of a conditional
approval in this action on the West Virginia PSD-related infrastructure
SIP submissions. The statute clearly contemplates use of this approach
when a State has made a commitment to make a submission in the future
that meets the statutory criteria. In this instance, however, on June
12, 2012, West Virginia submitted the SIP revision required by the 2010
PM2.5 NSR/PSD Rule. Therefore, the EPA does not believe that
it is appropriate to use the mechanism of a conditional approval in
these circumstances.
Comment: EPA cannot approve the infrastructure SIPs because West
Virginia's SIP does not clearly regulate condensable direct
PM2.5.
Response: The 2008 NSR PM2.5 Rule changed the Federal
definition of ``regulated NSR pollutant,'' found at 40 CFR
51.166(b)(49)(vi) to require that States account for condensable
emissions of particulate matter (condensables) in issuing NSR permits.
In light of this comment, EPA is reviewing West Virginia State Rule
45CSR14 to determine the extent to which its definition of ``regulated
NSR pollutant'' satisfies the requirements of section 51.166(b)(49)(vi)
insofar as it applies to particulate matter. For this reason, EPA is
deferring taking action on the definition of ``regulated NSR
pollutant'' in section 2.66 of West Virginia State Rule 45CSR14 with
regard to the requirement to account for condensables. EPA will address
this issue in a separate rulemaking action.
III. Final Actions
EPA is fully approving WVDEP's August 31, 2011 submittal, except
for the narrow issue of the requirement to include condensable
emissions of particulate matter in the definition of ``regulated NSR
pollutant'' found at 45CSR14 section 2.66. Except for this narrow
issue, EPA is approving all other portions of the submittal, including
but not limited to, the remainder of section 2.66. In approving West
Virginia State Rule 45CSR14 with regard to all other CAA and Federal
regulatory SIP requirements for PSD applicable as of the August 31,
2011 SIP revision submission date, EPA is acknowledging that it meets
the ``Prevention of Significant Deterioration and Title V Greenhouse
Gas Tailoring Rule'' (Tailoring Rule), which was promulgated on June 3,
2010 (75 FR 31514). EPA is also approving those portions of West
Virginia's SIP submissions dated December 3, 2007, December 11, 2007,
April 3, 2008, October 1, 2009, October 26, 2011, and February 17, 2012
which address the PSD-related requirements set forth in CAA section
110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS, 1997 8-hour
ozone NAAQS, 2006 PM2.5 NAAQS, 2008 lead NAAQS, and 2008
ozone NAAQS, as well as CAA section 110(a)(2)(C) and (J) for the 2008
lead NAAQS and 2008 ozone NAAQS, except for the narrow issue of the
requirement to include condensable emissions of particulate matter in
the definition of ``regulated NSR pollutant'' found at 45CSR14 section
2.66.
EPA is not finalizing its proposed approval of WVDEP's August 31,
2011 submittal with respect to the narrow issue of the requirement to
include condensable emissions of particulate matter in the definition
of ``regulated NSR pollutant'' found at 45CSR14 section 2.66.
Additionally, EPA is not finalizing its proposed approval of WVDEP's
SIP submissions dated December 3, 2007, December 11, 2007, April 3,
2008, October 1, 2009, October 26, 2011, and February 17, 2012
submitted to meet the PSD-related infrastructure SIP obligations set
forth at CAA sections 110(a)(2)(C), (D)(i)(II) and (J) with respect to
the narrow issue of the requirement to include condensable emissions of
particulate matter in the definition of ``regulated NSR pollutant''
found at 45CSR14 section 2.66. EPA will address these issues in a
separate action.
[[Page 63740]]
IV. 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,
except as noted in this document, 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, 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 [Insert date 60 days from date of
publication of this document in the Federal Register]. Filing a
petition for reconsideration by the Administrator of this final rule
does not 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 on the West Virginia SIP PSD
provisions 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 27, 2012.
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,
0
a. The table in paragraph (c) is amended by revising the entries for
[45 CSR] Series 14 regarding Permits for Construction and Major
Modification of Major Stationary Sources of Air Pollution for the
Prevention of Significant Deterioration.
0
b. The table in paragraph (e) is amended by:
i. Revising the entries regarding the Section 110(a)(2) PSD-related
Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS, the 1997
PM2.5 NAAQS, the 2006 PM2.5 NAAQS, the 2008 Lead
NAAQS, and the 2008 ozone NAAQS.
ii. Adding at the end of the table an entry regarding the Section
110(a)(2) PSD-related Infrastructure Requirements 110(a)(2)(C),
(D)(i)(II), and (J) for the 2008 8-Hour Ozone NAAQS.
The revisions and addition read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the West Virginia SIP
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State Additional explanation/
State citation [Chapter 16-20 or Title/subject effective EPA approval date citation at 40 CFR
45 CSR ] date 52.2565
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* * * * * * *
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[45CSR] Series 14 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution
for the Prevention of Significant Deterioration
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[[Page 63741]]
Section 45-14-1................. General............ 6/16/11 10/17/12 [Insert
page number where
the document
begins].
Section 45-14-2................. Definitions........ 6/16/11 10/17/12 [Insert 1. Inclusion of PM2.5
page number where significant emissions
the document rates and precursors
begins]. and GHG provisions.
2. Taking no action on
the definition of
``regulated NSR
pollutant'' found at
45CSR14 section 2.66.
only as it relates to
the requirement to
include condensable
emissions of
particulate matter in
that definition. See
Sec. 52.2522(i).
Section 45-14-3................. Applicability...... 6/16/11 10/17/12 [Insert
page number where
the document
begins].
Section 45-14-4................. Ambient Air Quality 6/16/11 10/17/12 [Insert .......................
Increments and page number where
Ceilings. the document
begins].
Section 45-14-5................. Area Classification 6/16/11 10/17/12 [Insert
page number where
the document
begins].
Section 45-14-6................. Prohibition of 6/16/11 10/17/12 [Insert
Dispersion page number where
Enhancement the document
Techniques. begins].
Section 45-14-7................. Registration, 6/16/11 10/17/12 [Insert
Report and Permit page number where
Requirements for the document
Major Stationary begins].
Sources and Major
Modifications.
Section 45-14-8................. Requirements 6/16/11 10/17/12 [Insert
Relating to page number where
Control Technology. the document
begins].
Section 45-14-9................. Requirements 6/16/11 10/17/12 [Insert
Relating to the page number where
Source's Impact on the document
Air Quality. begins].
Section 45-14-10................ Modeling 6/16/11 10/17/12 [Insert
Requirements. page number where
the document
begins].
Section 45-14-11................ Air Quality 6/16/11 10/17/12 [Insert
Monitoring page number where
Requirements. the document
begins].
Section 45-14-12................ Additional Impacts 6/16/11 10/17/12 [Insert
Analysis page number where
Requirements. the document
begins].
Section 45-14-13................ Additional 6/16/11 10/17/12 [Insert
Requirements and page number where
Variances for the document
Source Impacting begins].
Federal Class 1
Areas.
Section 45-14-14................ Procedures for 6/16/11 10/17/12 [Insert
Sources Employing page number where
Innovative Control the document
Technology. begins].
Section 45-14-15................ Exclusions From 6/16/11 10/17/12 [Insert
Increment page number where
Consumption. the document
begins].
Section 45-14-16................ Specific Exemptions 6/16/11 10/17/12 [Insert
page number where
the document
begins].
Section 45-14-17................ Public Review 6/16/11 10/17/12 [Insert
Procedures. page number where
the document
begins].
Section 45-14-18................ Public Meetings.... 6/16/11 10/17/12 [Insert
page number where
the document
begins].
Section 45-14-19................ Permit Transfer, 6/16/11 10/17/12 [Insert
Cancellation and page number where
Responsibility. the document
begins].
Section 45-14-20................ Disposition of 6/16/11 10/17/12 [Insert
Permits. page number where
the document
begins].
[[Page 63742]]
Section 45-14-21................ Conflict with Other 6/16/11 10/17/12 [Insert
Permitting Rules. page number where
the document
begins].
Section 45-14-25................ Actual PALs........ 6/16/11 10/17/12 [Insert
page number where
the document
begins].
Section 45-14-26................ Inconsistency 6/16/11 10/17/12 [Insert
Between Rules. page number where
the document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Applicable
Name of non-regulatory SIP geographic State submittal date EPA approval date Additional
revision area explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure Statewide 12/3/07, 5/21/08 8/4/11, 76 FR, This action
Requirements for the 1997 8- 47062. addresses the
Hour Ozone NAAQS. following CAA
elements or
portions thereof:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
12/3/07, 12/11/07, 8/31/ 10/17/12 [Insert Approval of the
11 page number where following PSD-
the document related elements
begins]. or portions
thereof:
110(a)(2)(D)(i)(I
I), except taking
no action on the
definition of
``regulated NSR
pollutant'' found
at 45CSR14
section 2.66 only
as it relates to
the requirement
to include
condensable
emissions of
particulate
matter in that
definition. See
Sec.
52.2522(i).
Section 110(a)(2) Infrastructure Statewide 4/3/08, 5/21/08, 7/9/08, 8/4/11, 76 FR, This action
Requirements for the 1997 PM2.5 3/18/10 47062. addresses the
NAAQS. following CAA
elements or
portions thereof:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
12/11/07, 4/3/08, 8/31/ 10/17/12 [Insert Approval of the
11 page number where following PSD-
the document related elements
begins]. or portions
thereof:
110(a)(2)(D)(i)(I
I), except taking
no action on the
definition of
``regulated NSR
pollutant'' found
at 45CSR14
section 2.66 only
as it relates to
the requirement
to include
condensable
emissions of
particulate
matter in that
definition. See
Sec.
52.2522(i).
Section 110(a)(2) Infrastructure Statewide 10/1/09, 3/18/10 8/4/11, 76 FR, This action
Requirements for the 2006 PM2.5 47062. addresses the
NAAQS. following CAA
elements or
portions thereof:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
10/1/09, 8/31/11 10/17/12 [Insert Approval of the
page number where following PSD-
the document related elements
begins]. or portions
thereof:
110(a)(2)(D)(i)(I
I), except taking
no action on the
definition of
``regulated NSR
pollutant'' found
at 45CSR14
section 2.66 only
as it relates to
the requirement
to include
condensable
emissions of
particulate
matter in that
definition. See
Sec.
52.2522(i).
* * * * * * *
Section 110(a)(2) Infrastructure Statewide 10/26/11 9/10/12, 77 FR, This action
Requirements for the 2008 Lead 55417. addresses the
NAAQS. following CAA
elements:
110(a)(2)(A),
(B), (C), (D),
(E), (F), (G),
(H), (J), (K),
(L), and (M), or
portions thereof.
8/31/11, 10/26/11 10/17/12 [Insert Approval of the
page number where following
the document elements or
begins]. portions thereof:
110(a)(2)(C),
(D)(i)(II), and
(J), except
taking no action
on the definition
of ``regulated
NSR pollutant''
found at 45CSR14
section 2.66 only
as it relates to
the requirement
to include
condensable
emissions of
particulate
matter in that
definition. See
Sec.
52.2522(i).
[[Page 63743]]
Section 110(a)(2) Infrastructure Statewide 8/31/11, 2/17/12 10/17/12 [Insert Approval of the
Requirements for the 2008 8- page number where following PSD-
Hour Ozone NAAQS. the document related elements
begins]. or portions
thereof:
110(a)(2)(C),
(D)(i)(II), and
(J), except
taking no action
on the definition
of ``regulated
NSR pollutant''
found at 45CSR14
section 2.66 only
as it relates to
the requirement
to include
condensable
emissions of
particulate
matter in that
definition. See
Sec.
52.2522(i).
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 52.2522, paragraph (i) is added to read as follows.
Sec. 52.2522 Approval status.
* * * * *
(i)(1) EPA is fully approving WVDEP's August 31, 2011 submittal,
except for the narrow issue of the requirement to include condensable
emissions of particulate matter in the definition of ``regulated NSR
pollutant'' found at 45CSR14 section 2.66. Except for this narrow
issue, EPA is approving all other portions of the submittal, including
but not limited to, the remainder of section 2.66. In approving West
Virginia State Rule 45CSR14 with regard to all other CAA and Federal
regulatory SIP requirements for PSD applicable as of the August 31,
2011 SIP revision submission date, EPA is acknowledging that it is
consistent with the ``Prevention of Significant Deterioration and Title
V Greenhouse Gas Tailoring Rule'' (Tailoring Rule), which was
promulgated on June 3, 2010 (75 FR 31514). EPA is not finalizing its
proposed approval of WVDEP's August 31, 2011 submittal with respect to
the narrow issue of the requirement to include condensable emissions of
particulate matter in the definition of ``regulated NSR pollutant''
found at 45CSR14 section 2.66. In light of a comment received on its
July 31, 2012 proposed rule (77 FR 45302), EPA is reviewing West
Virginia State Rule 45CSR14 to determine the extent to which its
definition of ``regulated NSR pollutant'' satisfies the corresponding
Federal definition, and will address this issue in a separate action.
(2) EPA is also approving those portions of West Virginia's SIP
submissions dated December 3, 2007, December 11, 2007, April 3, 2008,
October 1, 2009, October 26, 2011, and February 17, 2012 which address
the PSD-related requirements set forth in CAA section
110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS, 1997 8-hour
ozone NAAQS, 2006 PM2.5 NAAQS, 2008 lead NAAQS, and 2008
ozone NAAQS, as well as CAA Section 110(a)(2)(C) and (J) for the 2008
lead NAAQS and 2008 ozone NAAQS, except for the narrow issue of the
requirement to include condensable emissions of particulate matter in
the definition of ``regulated NSR pollutant'' found at 45CSR14 section
2.66. EPA is not finalizing its July 31, 2012 proposed approval (77 FR
45302) of WVDEP's SIP submissions dated December 3, 2007, December 11,
2007, April 3, 2008, October 1, 2009, October 26, 2011, and February
17, 2012 submitted to meet the PSD-related infrastructure SIP
obligations set forth at CAA sections 110(a)(2)(C), (D)(i)(II) and (J)
with respect to the narrow issue of the requirement to include
condensable emissions of particulate matter in the definition of
``regulated NSR pollutant'' found at 45CSR14 section 2.66. EPA will
address this issue in a separate action.
[FR Doc. 2012-25386 Filed 10-16-12; 8:45 am]
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