[Federal Register Volume 83, Number 129 (Thursday, July 5, 2018)]
[Proposed Rules]
[Pages 31348-31350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14333]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0502; FRL-9980-32--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 of
Air Quality
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a state implementation plan (SIP) revision submitted by the
State of West Virginia. This revision pertains to West Virginia's
Prevention of Significant Deterioration (PSD) program. This action is
being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before August 6, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0502 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: On June 6, 2017, the West Virginia
Department of Environmental Protection (WVDEP), on behalf of the State
of West Virginia, submitted a revision to its PSD regulations found at
title 45, chapter 14 of the Code of State Rules (CSR) as a revision to
the West Virginia SIP.
I. Background
WVDEP's June 6, 2017 SIP submittal included a number of revisions
to West Virginia's PSD regulations under 45CSR14. The revisions were
largely non-substantive and administrative in nature. However, as
discussed in subsequent sections of this notice, WVDEP's SIP submittal
also contained revisions to PSD provisions relating to the regulation
of greenhouse gases (GHGs). Additionally, WVDEP's June 6, 2017
submittal letter references EPA's conditional approval \1\ of two SIP
submittals (June 6, 2012 and July 1, 2014), related to the regulation
of fine particulate matter (PM2.5). Specifically, the letter
states, ``. . .EPA may subsequently issue a final rule in which West
Virginia's conditional approval of the 2012 and 2014 SIP revisions of
45CSR14 will become final approvals.'' \2\ EPA notes that full and
final approval has already been granted to West Virginia's 2012 and
2014 submittals, and that there are no outstanding issues related to
WVDEP's regulation of fine particulate matter (PM2.5). See
81 FR 53008 (August 11, 2016).
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\1\ See 80 FR 36483 (June 25, 2015).
\2\ See WVDEP's June 6, 2017 submittal letter, included in the
docket for this action.
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In a June 3, 2010 final rulemaking action, EPA promulgated
regulations known as ``the Tailoring Rule,'' which phased in permitting
requirements for GHG emissions from stationary sources under the CAA
PSD and title V permitting programs. See 75 FR 31514. For Step 1 of the
Tailoring Rule, which began on January 2, 2011, PSD or title V
requirements applied to sources of GHG emissions only if the sources
were subject to PSD or title V ``anyway'' due to their emissions of
non-GHG pollutants. These sources are referred to as ``anyway
sources.'' Step 2 of the Tailoring Rule, which began on July 1, 2011,
applied the PSD and title V permitting requirements under the CAA to
sources that were classified as major, and, thus, required to obtain a
permit, based solely on their potential GHG emissions. Step 2 also
applied to modifications of otherwise major sources that required a PSD
permit because they increased only GHGs above applicable levels in the
EPA regulations.
On June 23, 2014, the United States Supreme Court, in Utility Air
Regulatory Group (UARG) v. Environmental Protection Agency,\3\ issued a
decision addressing the Tailoring Rule and the application of PSD
permitting requirements to GHG emissions. The Supreme Court said that
the EPA may not treat GHGs as an air pollutant for purposes of
determining whether a source is a major source required to obtain a PSD
permit. The Court also said that the EPA could continue to require that
PSD permits, otherwise required based on emissions of pollutants other
than GHGs, contain limitations on GHG emissions based on the
application of Best Available Control Technology (BACT). The Supreme
Court decision effectively upheld PSD permitting requirements for GHG
emissions under Step 1 of the Tailoring Rule for ``anyway sources'' and
invalidated PSD permitting requirements for Step 2 sources.
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\3\ See 134 S.Ct. 2427.
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In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the Tailoring Rule, but not the regulations that
implement Step 1 of the
[[Page 31349]]
Tailoring Rule.\4\ The amended judgment preserves, without the need for
additional rulemaking by the EPA, the application of the BACT
requirement to GHG emissions from sources that are required to obtain a
PSD permit based on emissions of pollutants other than GHGs (i.e., the
``anyway'' sources). The D.C. Circuit's judgment vacated the
regulations at issue in the litigation, including 40 CFR
51.166(b)(48)(v), ``to the extent they require a stationary source to
obtain a PSD permit if greenhouse gases are the only pollutant (i) that
the source emits or has the potential to emit above the applicable
major source thresholds, or (ii) for which there is a significant
emissions increase from a modification.'' \5\
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\4\ Coalition for Responsible Regulation v. EPA, D.C. Cir., No.
09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015.
\5\ Id.
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In response to these court decisions, EPA took final action on
August 19, 2015 to remove the vacated elements from the federal PSD
program. See 80 FR 50199. As discussed further in Section II of this
notice, WVDEP's June 6, 2017 submittal included revisions enacted in
order to make WVDEP's PSD program consistent with the federal program.
II. Summary of SIP Revision and EPA Analysis
WVDEP's June 6, 2017 submittal included revisions to the definition
of ``subject to regulation'' at subdivision 2.80 of 45-14-2.
Specifically, subdivisions 2.80.e, 2.80.f, and 2.80.g were deleted in
their entirety. These subdivisions were the mechanism through which
WVDEP implemented the Tailoring Rule Step 2 provisions which were
vacated and revised by EPA as a result of the UARG v. EPA decision
discussed in Section I of this notice. WVDEP's revised definition of
``subject to regulation'' is consistent with the federal definition at
40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), and ensures that the
preconstruction permitting requirements of WVDEP's PSD program will be
applied to GHG sources in a manner consistent with the Supreme Court
decision in UARG v. EPA. Further, EPA finds that these deletions are in
accordance with section 110(l) of the CAA because they will not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable CAA requirement.
In addition to the previously discussed revisions, WVDEP's June 6,
2017 submittal included a number of non-substantive, clarifying or
administrative revisions. These include the filing date and effective
date at subdivisions 45-14-1.3 and 45-14-1.4, and the removal of
references to the deleted subdivisions discussed in Section II.A of
this notice. WVDEP provided an underline/strikeout version of 45CSR14
so that all of the revisions can be tracked. A copy of this is included
in the docket for today's action.
III. Proposed Action
EPA is proposing to approve West Virginia's June 6, 2017 SIP
revision to its PSD regulations under 45CSR14. West Virginia's June 6,
2017 SIP revision is consistent with 40 CFR 51.166, CAA section
110(a)(2), and is in accordance with section 110(l) of the CAA because
it will not interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable CAA
requirement. EPA is soliciting public comments on the issues discussed
in this rulemaking notice. These comments will be considered before
taking final action.
IV. Incorporation by Reference
In this proposed 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, EPA is proposing to
incorporate by reference the West Virginia rules regarding definitions
and permitting requirements discussed in Section II of this preamble.
EPA has made, and will continue to make, these materials generally
available through http://www.regulations.gov and at the EPA Region III
Office (please contact the person identified in the For Further
Information Contact 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 the preconstruction
requirements of 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, 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.
[[Page 31350]]
Dated: June 21, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-14333 Filed 7-3-18; 8:45 am]
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