[Federal Register Volume 80, Number 60 (Monday, March 30, 2015)]
[Proposed Rules]
[Pages 16612-16615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07222]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2015-0028; FRL-9925-47-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Permits for Construction and Major Modification of Major
Stationary Sources for the Prevention of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing
conditional approval for two State Implementation Plan (SIP) revisions
submitted by the West Virginia Department of Environmental Protection
(WVDEP) for the State of West Virginia on July 1, 2014 and June 6,
2012. These revisions pertain to West Virginia's Prevention of
Significant Deterioration (PSD) permit program and include provisions
for preconstruction permitting requirements for major sources of fine
particulate matter (PM2.5) found in West Virginia
regulations. This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before April 29, 2015.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2015-0028 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2015-0028, David Campbell, Associate Director,
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2015-0028. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittals 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: Mr. Paul Wentworth, (215) 814-2183, or
by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The WVDEP submitted two SIP revisions to EPA on June 6, 2012 (the
2012 submittal) and on July 1, 2014 (the 2014 submittal). EPA is acting
on these two submittals as a whole.\1\ A summary of all the changes
made in each of the submittals has been included in the docket for this
action in a document titled, ``Summary of West Virginia PSD Changes.''
These SIP revision requests, if approved, would revise West Virginia's
currently approved PSD program by amending Series 14 under Title 45 of
West Virginia Code of State Rules (45CSR14).
---------------------------------------------------------------------------
\1\ EPA is proposing to act on both SIP submittals in this
notice because each submittal contains necessary procedural
information related to West Virginia's revisions to its PSD
regulations and development of its SIP submittals, which are
required for SIP revisions by 40 CFR parts 51 and 52.
---------------------------------------------------------------------------
On May 16, 2008, EPA promulgated a rule to implement the 1997
PM2.5 National Ambient Air Quality Standard (NAAQS),
including changes to the New Source Review (NSR) program (the 2008 NSR
PM2.5 Rule). See 73 FR 28321. The
[[Page 16613]]
2008 NSR PM2.5 Rule revised the NSR program requirements to
establish the framework for implementing preconstruction permit review
for the PM2.5 NAAQS in both attainment and nonattainment
areas.\2\ The 2008 NSR PM2.5 rule: (1) Required NSR permits
to address directly emitted PM2.5 and precursor pollutants;
(2) established significant emission rates for direct PM2.5
and precursor pollutants (including sulfur dioxide (SO2) and
oxides of nitrogen (NOX)); (3) established PM2.5
emission offsets; and (4) required states to account for gases that
condense to form particles (condensables) in PM2.5 emission
limits.\3\
---------------------------------------------------------------------------
\2\ The PSD permitting program is the NSR permit program in
areas attaining a particular NAAQS.
\3\ On October 25, 2012, EPA took final action to amend the
definition of ``regulated NSR pollutant'' promulgated in the 2008
NSR PM2.5 Rule regarding the particulate matter (PM)
condensable provision at 40 CFR 51.166(b)(49)(vi) and
52.21(b)(50)(i). See 77 FR 65107. The rulemaking removed the
inadvertent requirement in the 2008 NSR PM2.5 Rule that
the measurement of condensable ``particulate matter emissions'' be
included as part of the measurement and regulation of ``particulate
matter emissions.''
---------------------------------------------------------------------------
The 2008 NSR PM2.5 Rule (as well as the more general
PM2.5 NAAQS implementation rule, the 2007 ``Final Clean Air
Fine Particle Implementation Rule'' (2007 PM2.5
Implementation Rule) \4\), was the subject of litigation before the
United States Court of Appeals for the District of Columbia Circuit
(D.C. Circuit) in Natural Resources Defense Council v. EPA (hereafter,
NRDC v. EPA).\5\ On January 4, 2013, the D.C. Circuit remanded to EPA
both the 2007 PM2.5 Implementation Rule and the 2008 NSR
PM2.5 Rule. The court found that in both rules EPA erred in
implementing the 1997 PM2.5 NAAQS solely pursuant to the
general implementation provisions of subpart 1 of part D of title I of
the CAA (subpart 1), rather than pursuant to the additional
implementation provisions specific to particulate matter in subpart 4
of part D of title I (subpart 4).\6\ As a result, the D.C. Circuit
remanded both rules and instructed EPA ``to re-promulgate these rules
pursuant to subpart 4 consistent with this opinion.'' Although the D.C.
Circuit declined to establish a deadline for EPA's response, EPA
intends to respond promptly to the court's remand and to promulgate new
generally applicable implementation regulations for the
PM2.5 NAAQS in accordance with the requirements of subpart
4. In the interim, however, states and EPA still need to proceed with
implementation of the 1997 PM2.5 NAAQS in a timely and
effective fashion in order to meet statutory obligations under the CAA
and to assure the protection of public health intended by those NAAQS.
In a June 2, 2014 final rulemaking entitled ``Identification of
Nonattainment Classification and Deadlines for Submission of State
Implementation Plan (SIP) Provisions for the 1997 Fine Particle
(PM2.5) National Ambient Air Quality Standard (NAAQS) and
2006 PM2.5 NAAQS; Final Rule,'' (79 FR 31566), EPA
identified the classification status under subpart 4 for areas
currently designated nonattainment for the 1997 and 2006
PM2.5 NAAQS.\7\
---------------------------------------------------------------------------
\4\ 72 FR 20586 (April 25, 2007).
\5\ 706 F.3d 428 (D.C. Cir. 2013).
\6\ The court's opinion did not specifically address the point
that implementation under subpart 4 requirements would still require
consideration of subpart 1 requirements, to the extent that subpart
4 did not override subpart 1. EPA assumes that the court presumed
that EPA would address this issue of potential overlap between
subpart 1 and subpart 4 requirements in subsequent actions.
\7\ That June 2, 2014 rulemaking (79 FR 31566) also established
a December 31, 2014 deadline for the submission of any additional
attainment related SIP elements that may be needed to meet the
applicable requirements of subpart 4.
---------------------------------------------------------------------------
As the requirements of Subpart 4 only pertain to nonattainment
areas, EPA does not consider the portions of the 2008 NSR
PM2.5 Rule that address requirements for PM2.5
attainment and unclassifiable areas to be affected by the NRDC v. EPA
opinion. Moreover, EPA does not anticipate the need to revise any PSD
permitting requirements promulgated in the 2008 NSR PM2.5
Rule in order to comply with the D.C. Circuit's decision. This proposed
rulemaking addresses West Virginia's PSD regulations. Thus, EPA has
evaluated the regulations with applicable PSD requirements in the CAA,
its implementing regulations, and the 2008 NSR PM2.5 Rule.
The CAA's PSD provisions also establish maximum allowable increases
over baseline concentrations--also known as ``increments''--for certain
pollutants. EPA has the task of promulgating regulations to prevent the
significant deterioration of air quality that would result from the
emissions of pollutants EPA began regulating after Congress enacted the
PSD provisions in the CAA, which includes PM2.5. The PSD
provisions establish preconstruction review and permitting of new or
modified sources of air pollution. In 2007, EPA proposed a rule
establishing increments for PM2.5 and also proposed two
screening tools that would exempt permit applicants from some air
quality analysis and monitoring required for PSD: Significant impact
levels (SILs) and significant monitoring concentration (SMC). See 72 FR
54112 (September 21, 2007). In our October 20, 2010 final rule (the
PM2.5 PSD Increments-SILs-SMC Rule), EPA set values for both
SILs and SMC for PM2.5. See 75 FR 64864.
The Sierra Club challenged EPA's authority to implement
PM2.5 SILs and SMC for PSD purposes as promulgated in the
PM2.5 PSD Increments-SILs-SMC Rule. See Sierra Club v. EPA,
705 F.3d 458 (D.C. Cir. 2013). On January 22, 2013, the D.C. Circuit
granted a request from EPA to vacate and remand to the Agency the
portions of the PM2.5 PSD Increments-SILs-SMC Rule
addressing the SILs for PM2.5 (found in paragraph (k)(2) in
40 CFR 51.166 and 52.21), except for the parts codifying the
PM2.5 SILs at 40 CFR 51.165(b)(2), so that the EPA could
voluntarily correct an error in the provisions. Id. at 463-66. The D.C.
Circuit also vacated parts of the PSD Increments-SILs-SMC Rule
establishing the PM2.5 SMC, finding that the Agency had
exceeded its statutory authority with respect to these provisions. Id.
at 469.
In response to the D.C. Circuit's decision, EPA took final action
on December 9, 2013 to remove the SIL provisions from the Federal PSD
regulations in 40 CFR 52.21 and to revise the SMC for PM2.5
to zero micrograms per cubic meter. See 78 FR 73698. Because the D.C.
Circuit vacated the SMC provisions in 40 CFR 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c), EPA revised the existing concentration for the
PM2.5 SMC listed in sections 51.166(i)(5)(i)(c) and
52.21(i)(5)(i)(c) to zero micrograms per cubic meter. EPA did not
entirely remove PM2.5 as a listed pollutant in the SMC
provisions because to do so might lead to the issuance of permits that
contradict the holding of the D.C. Circuit as to the statutory
monitoring requirements. Id. (providing EPA's explanation for including
the zero micrograms per cubic meter SMC).
On May 9, 2013, EPA had disapproved a narrow portion of a SIP
revision submitted by the State of West Virginia on August 31, 2011 for
revising West Virginia's PSD requirements in 45 CSR14 because the
submittal did not satisfy the Federal requirement for inclusion of
condensable emissions of PM (condensables) within the definition of
``regulated new source review (NSR) pollutant'' (at 45CSR14 section
2.66) for PM2.5 and PM emissions less than or equal to ten
micrometers in diameter (PM10).\8\
---------------------------------------------------------------------------
\8\ See 78 FR 27062 (May 9, 2013). The limited disapproval of
the narrow portion of the August 31, 2011 SIP provision (concerning
45CSR14 section 2.66) is discussed in 78 FR 27062 and in 40 CFR
52.2522(j)(1) specifically.
---------------------------------------------------------------------------
[[Page 16614]]
II. Summary of SIP Revision and EPA Analysis
A. Summary of SIP Revision
Specifically, the revisions submitted by WVDEP on July 1, 2014 and
June 6, 2012 involve amendments to 45CSR14 (Permits for Construction
and Major Modification of Major Stationary Sources for the Prevention
of Significant Deterioration) based on the Federal regulatory actions
discussed above in section I. A summary of the changes made in the 2012
and 2014 submittals are available in the docket in a document titled,
``Summary of West Virginia NSR Changes.'' Generally, the revisions in
the 2012 submittal were submitted to incorporate provisions related to
the 2008 NSR PM2.5 Rule. The 2014 submittal revises certain
subdivisions of the 2012 submittal as shown in the table below:
------------------------------------------------------------------------
Rule 45CSR14 subdivision Description of change
------------------------------------------------------------------------
2.66.a.1.......................... Added PM condensable emissions to
definition of ``regulated NSR
pollutant''.
2.66.a.2.......................... Added language identifying
precursors to NAAQS pollutants to
the definition of ``regulated NSR
pollutant''.
16.7.c............................ Deleted 24-hour de minimis air
quality impact concentration value
for PM2.5 (aka SMC for PM2.5).
16.1.a & b........................ Added provision exempting
requirements of 9.1 for stationary
sources based on completeness date
of permit applications.
9.2............................... Significant Impact Levels. Deleted
this provision in its entirety.
------------------------------------------------------------------------
In general, the 2014 submittal adds PM condensable emissions to the
definition of ``regulated NSR pollutant'' and deletes SILs and SMC for
PM2.5 in the 45CSR14 provisions submitted for SIP approval.
B. EPA Analysis
EPA finds the revisions to 45CSR14 contained in the 2012 submittal
and the 2014 submittal which were submitted by WVDEP for approval
mirror the PSD requirements of the 2008 NSR PM2.5 Rule with
certain exceptions described in the next paragraph. The 2014 submittal
addresses and corrects the deficiency identified in EPA's May 9, 2013
disapproval (78 FR 27062) by adding language to the provision at
45CSR14 section 2.66.a.1 which now includes PM condensable emissions in
the definition of ``regulated NSR pollutant.'' Thus, EPA finds West
Virginia has addressed the deficiency noted in our limited disapproval
in 78 FR 27062.
However, while the 2014 submittal appropriately removes SILs for
PM2.5 consistent with the D.C. Circuit's Sierra Club v. EPA
decision and our final December 9, 2013 rulemaking (78 FR 73698), West
Virginia's PSD provision at 45CSR14-16.7.c (included in the 2014
submittal) does not include a SMC value of zero micrograms per cubic
meter for PM2.5 consistent with the D.C. Circuit's Sierra
Club v. EPA decision and our December 9, 2013 rulemaking (78 FR 73698)
which addressed the D.C. Circuit's vacature of the SMC provisions in 40
CFR parts 51 and 52 for PM2.5. Therefore, West Virginia's
PSD regulation, 45CSR14, does not fully meet the requirements for PSD
programs as set forth in the 2008 NSR PM2.5 Rule, the D.C.
Circuit's decision on SILs and SMC in Sierra Club v. EPA, and in EPA's
December 9, 2013 rulemaking addressing that decision for SILs and SMC.
However, on January 20, 2015, West Virginia committed to submitting
an additional SIP revision with a revised PSD regulation at 45CSR14-
16.7.c which will incorporate a SMC value of zero micrograms per cubic
meter for PM2.5 to address this discrepancy. West Virginia
committed to submitting this SIP revision no later than one year
following the effective date of the final rulemaking notice for
conditional approval of the 2012 and the 2014 submittals so that EPA
can conditionally approve the 2012 and 2014 submittals.\9\ See CAA
section 110(k)(4). With the exception of the absence of the SMC value
of zero micrograms per cubic meter for PM2.5 which WVDEP has
committed to address, EPA finds the 2012 and 2014 submittals meet
applicable requirements for a PSD permitting program in the CAA, its
implementing regulations, and the 2008 NSR PM2.5 Rule. The
EPA is soliciting public comments on the issues discussed in this
document. Any comments submitted in a timely manner will be considered
before taking final action.
---------------------------------------------------------------------------
\9\ West Virginia's letter from the Secretary of WVDEP
committing to submit a revised provision in 45CSR14 to address the
SMC for PM2.5 is available in the docket for this
rulemaking (EPA-R03-OAR-2015-0028) and available online at
www.regulations.gov.
---------------------------------------------------------------------------
III. Proposed Action
EPA is proposing conditional approval of these West Virginia SIP
revisions, the 2012 and 2014 submittals, because West Virginia is
committing to submit an additional SIP revision addressing the
deficiency identified by EPA regarding the deletion of the
PM2.5 SMC within one year of the date of EPA's final
conditional approval and because the submittals otherwise meet CAA
requirements as discussed in this proposed rulemaking. Once EPA has
determined that West Virginia has satisfied this condition, the
conditional approval of the 2012 and 2014 submittals will become a full
approval. Should West Virginia fail to meet the condition specified
above, the conditional approval of the 2012 and 2014 submittals will
convert to a disapproval pursuant to CAA section 110(k)(4).
The full or partial disapproval of a SIP revision triggers the
requirement under CAA section 110(c) that EPA promulgate a federal
implementation plan (FIP) no later than two years from the date of the
disapproval unless the State corrects the deficiency, and the
Administrator approves the plan or plan revision before the
Administrator promulgates such FIP. EPA has determined that West
Virginia's 2014 submittal has rectified the deficiency regarding
including condensables in the definition of regulated NSR pollutant
noted in our limited disapproval in 78 FR 27062. Therefore, upon final
approval of the 2014 submittal, the EPA is no longer required to
promulgate a FIP to address the issue of PM condensables in the
definition of regulated NSR pollutant for West Virginia's PSD permit
program, and our narrow disapproval of the August 31, 2011 PSD SIP (for
failure to include condensables in definition of regulated NSR
pollutant) will become a full approval. However, EPA is proposing
conditional approval for the 2012 and 2014 submittals due to West
Virginia's lack of a PM2.5 SMC with the value of zero
micrograms per cubic meter.
IV. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the WV regulations at 45CSR14 regarding the Prevention of
Significant
[[Page 16615]]
deterioration permitting requirements as discussed in section III of
this preamble. The EPA has made, and will continue to make, these
documents generally available electronically through
www.regulations.com and/or in hard copy at the appropriate EPA office
(see the ADDRESSES section of this preamble for more information).
V. Statutory and Executive Order Reviews
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 proposed 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 proposed rule, relating to West Virginia's PSD
program, 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Carbon monoxide, 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: March 12, 2015.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-07222 Filed 3-27-15; 8:45 am]
BILLING CODE 6560-50-P