[Federal Register Volume 80, Number 24 (Thursday, February 5, 2015)]
[Proposed Rules]
[Pages 6491-6495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02304]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2014-0792; FRL-9922-51-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Permits for Construction and Major Modification of Major
Stationary Sources Which Cause or Contribute to Nonattainment Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant approval to four State Implementation Plan (SIP) revisions
submitted by the West Virginia Department of Environmental Protection
for the State of West Virginia on June 29, 2010, July 8, 2011, July 6,
2012, and July 1, 2014 with the exception of certain revisions related
to ethanol production facilities on which EPA is taking no action at
this time. These revisions proposed for approval pertain to West
Virginia's nonattainment New Source Review (NSR) program, notably
provisions for preconstruction permitting requirements for major
sources of fine particulate matter (PM2.5) and NSR reform.
This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before March 9, 2015.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0792 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-2014-0792, Andrew Kreider, Acting 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.
[[Page 6492]]
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0792. 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 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: Mr. Mike Gordon, (215) 814-2039, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The WVDEP submitted four SIP revisions to EPA on June 29, 2010 (the
2010 submittal), July 8, 2011 (the 2011 submittal), July 6, 2012 (the
2012 submittal) and July 1, 2014 (the 2014 submittal). While each of
the SIP revisions was submitted individually, EPA is acting on these
submittals as a whole. There are some instances where specific language
was added in a West Virginia regulation included in one of the earlier
SIP submittals but the language was subsequently removed from that same
regulation included in a later SIP submittal such that EPA therefore
only assessed the approvability of that portion of the regulation
included in the later SIP submittal. It should be noted that the most
recent version of West Virginia's nonattainment NSR regulations is the
version included for SIP approval in the 2014 submittal, and this
submittal reflects the sum of the changes made from the 2010, 2011, and
2012 submittals as well.\1\ A summary of the changes made in each of
the four submittals has been included in the docket for this action
under ``Summary of West Virginia NSR Changes.'' These SIP revision
requests, if approved, would revise West Virginia's currently approved
nonattainment NSR program by amending Series 19 under Title 45 of West
Virginia Code of State Rules (45CSR19). Generally, the revisions
incorporate provisions related to the 2008 ``Implementation of the New
Source Review (NSR) Program for Particulate Matter Less than 2.5
Micrometers (PM2.5)'' (2008 NSR PM2.5 Rule; 73 FR
28321), the 2007 ``Prevention of Significant Deterioration,
Nonattainment New Source Review, and Title V: Treatment of Certain
Ethanol Production Facilities Under the `Major Emitting Facility'
Definition'' (2007 Ethanol Rule; 72 FR 24060), as well as updates as a
result of the 2002 rule ``Prevention of Significant Deterioration (PSD)
and Nonattainment NSR (NSR): Baseline Emissions Determination, Actual-
to-Future-Actual Methodology, Plantwide Applicability Limitations,
Clean Units, Pollution Control Projects'' (2002 NSR Reform Rules; 67 FR
80186).
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\1\ EPA, however, is proposing to act on all four SIP submittals
in this document because each submittal contains necessary
procedural information related to West Virginia's revisions to its
nonattainment NSR regulations and development of its SIP submittals,
which are required for SIP revisions by 40 CFR parts 51 and 52.
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The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 Rules: (1) Provided a new method for
determining baseline actual emissions; (2) adopted an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allowed major stationary sources to
comply with a Plantwide Applicability Limit (PAL) to avoid having a
significant emissions increase that triggers the requirements of the
major NSR program; (4) provided a new applicability provision for
emissions units that are designated clean units; and (5) excluded
pollution control projects (PCPs) from the definition of ``physical
change or change in the method of operation.'' On November 7, 2003, EPA
published a notice of final action on its reconsideration of the 2002
NSR Reform Rules,\2\ which added a definition for ``replacement unit''
and clarified an issue regarding PALs. For additional information on
the 2002 NSR Reform Rules, see EPA's December 31, 2002 final rulemaking
action entitled: ``Prevention of Significant Deterioration (PSD) and
Nonattainment NSR (NSR): Baseline Emissions Determination, Actual-to-
Future-Actual Methodology, Plantwide Applicability Limitations, Clean
Units, Pollution Control Projects'' (67 FR 80186), the 2003 final
reconsideration: ``Prevention of Significant Deterioration (PSD) and
Non-Attainment New Source Review (NSR): Reconsideration'' (68 FR
63021), and http://www.epa.gov/nsr.
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\2\ See ``Prevention of Significant Deterioration (PSD) and Non-
Attainment New Source Review (NSR): Reconsideration.'' 68 FR 63021.
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After the 2002 NSR Reform Rules were finalized, industry, state,
and environmental petitioners challenged numerous aspects of the 2002
NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR
52676, August 7, 1980). On June 24, 2005, the United States Court of
Appeals for the District of Columbia (D.C. Circuit) issued a decision
on the challenges to the 2002 NSR Reform Rules. New York v. United
States, 413 F.3d 3 (D.C. Cir. 2005) (New York I).
In summary, the D.C. Circuit vacated portions of the rules
pertaining to clean units and PCPs, remanded a portion of the rules
regarding recordkeeping and the term ``reasonable possibility'' found
in 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and either upheld or did
not comment on the other provisions included as part of the 2002 NSR
Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to
revise the 2002 NSR Reform Rules to remove from federal law all
provisions pertaining to clean units and the PCP exemption that were
vacated by the D.C. Circuit.
[[Page 6493]]
The 2008 NSR PM2.5 Rule (as well as the 2007 ``Final
Clean Air Fine Particle Implementation Rule'' (2007 PM2.5
Implementation Rule) \3\), was also the subject of litigation before
the D.C. Circuit in Natural Resources Defense Council v. EPA.\4\ On
January 4, 2013, the court 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).\5\ As a result, the court remanded both rules and
instructed EPA ``to re-promulgate these rules pursuant to subpart 4
consistent with this opinion.'' \6\ 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.
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\3\ 72 FR 20586 (April 25, 2007).
\4\ 706 F.3d 428 (D.C. Cir. 2013).
\5\ 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.
\6\ Id. at 437.
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On April 25, 2014, the Administrator signed a final rulemaking that
begins to address the remand (see http://www.epa.gov/airquality/particlepollution/actions.html). Upon its effective date, the final
rule classifies all existing PM2.5 nonattainment areas as
``Moderate'' nonattainment areas and sets a deadline of December 31,
2014, for states to submit any SIP submissions, including nonattainment
NSR SIPs, that may be necessary to satisfy the requirements of subpart
4 with respect to PM2.5 nonattainment areas.
In a separate rulemaking process that will follow the April 2014
rule, EPA is evaluating the requirements of subpart 4 as they pertain
to, among other things, nonattainment NSR for PM2.5
emissions. With respect to nonattainment NSR in particular, subpart 4
includes section 189(e) of the CAA, which requires the control of major
stationary sources of coarse particulate matter (PM10)
precursors ``except where the Administrator determines that such
sources do not contribute significantly to PM10 levels which
exceed the standard in the area.'' Under the D.C. Circuit's decision in
NRDC, section 189(e) of the CAA also applies to PM2.5.
Additionally, the 2008 NSR PM2.5 Rule authorized states
to adopt provisions in their nonattainment NSR rules that would allow
major stationary sources and major modifications locating in areas
designated nonattainment for PM2.5 to offset emissions
increases of direct PM2.5 emissions or PM2.5
precursors with reductions of either direct PM2.5 emissions
or PM2.5 precursors in accordance with offset ratios
contained in the approved SIP for the applicable nonattainment area.
The inclusion, in whole or in part, of the interpollutant offset
provisions for PM2.5 is discretionary on the part of the
states. In the preamble to the 2008 NSR PM2.5 Rule, EPA
included preferred or presumptive offset ratios, applicable to specific
PM2.5 precursors that states may adopt in conjunction with
the new interpollutant offset provisions for PM2.5, and for
which the state could rely on the EPA's technical work to demonstrate
the adequacy of the ratios for use in any PM2.5
nonattainment area. Alternatively, the preamble indicated that states
may adopt their own ratios, subject to the EPA's approval, that would
have to be substantiated by modeling or other technical demonstrations
of the net air quality benefit for ambient PM2.5
concentrations. The preferred ratios were subsequently the subject of a
petition for reconsideration, which the EPA Administrator granted. EPA
continues to support the basic policy that sources may offset increases
in emissions of direct PM2.5 or of any PM2.5
precursor in a PM2.5 nonattainment area with actual
emissions reductions in direct PM2.5 or PM2.5
precursors in accordance with offset ratios as approved in the SIP for
the applicable nonattainment area. However, we no longer consider the
preferred ratios set forth in the preamble to the 2008 NSR
PM2.5 Rule to be presumptively approvable. Instead, any
ratio involving PM2.5 precursors adopted by the state for
use in the interpollutant offset program for PM2.5
nonattainment areas must be accompanied by a technical demonstration
that shows the net air quality benefits of such ratio for the
PM2.5 nonattainment area in which it will be applied.
II. Summary of SIP Revision
Specifically, the revisions submitted by WVDEP involve amendments
to 45CSR19 (Permits for Construction and Major Modification of Major
Stationary Sources Which Cause or Contribute to Nonattainment Areas) as
a result of Federal regulatory actions previously discussed. A summary
of the changes made in the 2010, 2011, 2012, and 2014 submittals are
available in the docket under ``Summary of West Virginia NSR Changes.''
Additionally, several non-substantive, clarifying and organizational
revisions were submitted. WVDEP has included redline/strikeout versions
of the submittals so that all revisions to 45CSR19 can be seen.
Following is EPA's rationale for the proposed approval.
A. NSR Reform
EPA finds West Virginia's regulations dealing with NSR reform
closely mirror the Federal counterpart regulations in 40 CFR parts 51
and 52. Several aspects of NSR reform, including a new method for
determining baseline actual emissions, adoption of actual-to-projected-
actual methodology for determining whether a major modification has
occurred, and the allowance of PALs were submitted to EPA by WVDEP in
prior SIP submissions and subsequently approved by EPA on November 2,
2006 (71 FR 64468). However, in this prior submission, WVDEP
specifically requested that EPA exclude from its SIP approval the
provisions of 45CSR19 pertaining to ``Clean Units'' and ``Pollution
Control Project'' in order to ensure that their Federally-approved
regulations are consistent with the D.C. Circuit's June 24, 2005 ruling
in New York I. West Virginia subsequently removed provisions relating
to ``pollution control projects'' and ``clean unit'' from 45CSR19 at
the state level and updated language relating to ``reasonable
possibility'' provisions, as is reflected in the 2010 submittal. Thus,
EPA finds the SIP revisions including the revised 45CSR19 meet
requirements of NSR Reform for a nonattainment NSR permitting program
in 40 CFR parts 51 and 52, and is proposing to fully approve revisions
relating to NSR reform.
B. Ethanol Rule
West Virginia's proposed SIP revisions include provisions that
exclude facilities that produce ethanol through a natural fermentation
process from the definition of ``chemical process plants'' in the major
NSR source permitting program as amended in the
[[Page 6494]]
2007 Ethanol Rule. The 2010 submittal added provisions at 45CSR19-
2.35.e.20 and 3.7.a.20 that remove certain ethanol production
facilities from the definition of ``chemical process plants.'' These
provisions are also included in the subsequent 2011, 2012, and 2014
submittals. In this rulemaking, we are not at this time proposing to
take action on any of the SIP submittals concerning West Virginia's
submitted regulation revisions at 45CSR19-2.35.e.20 and 3.7.a.20
addressing the 2007 Ethanol Rule.
C. PM2.5
EPA finds the revisions to 45CSR19 submitted by WVDEP for approval
that relate to PM2.5 mirror the 2008 NSR PM2.5
Rule, which: (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.
Additionally, WVDEP's 2010 submittal includes provisions allowing
sources to offset emissions increases of direct PM2.5
emissions or PM2.5 precursors with reductions of either
direct PM2.5 emissions or PM2.5 precursors in
accordance with offset ratios contained in the approved SIP for the
applicable nonattainment area, including the default interpollutant
trading ratios that were included in EPA's 2008 NSR PM2.5
Rule. EPA continues to support the policy of allowing an interpollutant
offset program, provided that a state develops a technical
demonstration justifying the ratios to be used, and showing the net air
quality benefits of such ratios for the PM2.5 nonattainment
area in which it will be applied. WVDEP did not provide a technical
justification or describe a net air quality benefit of the
interpollutant trading ratios in its 2010 submittal. However, in the
subsequent 2014 submittal, WVDEP removed the provisions that would have
allowed interpollutant trading for PM2.5. As previously
stated, inclusion of interpollutant trading ratios is discretionary on
the part of the states, and only permitted upon approval by EPA. West
Virginia's inclusion of these interpollutant trading ratios in the 2010
SIP without proper justification has no bearing on EPA's action in this
proposed rule, since the most recent SIP submitted and current
regulations in effect in West Virginia (i.e. the NSR regulations at
45CSR19 included in the 2014 submittal) do not include these
provisions.
In light of the D.C. Circuit's remand of the 2008 NSR
PM2.5 Rule, EPA is in the process of evaluating the
requirements of subpart 4 as they pertain to nonattainment NSR. In
particular, subpart 4 includes section 189(e) of the CAA, which
requires the control of major stationary sources of PM10
precursors (and hence under the court decision, PM2.5
precursors) ``except where the Administrator determines that such
sources do not contribute significantly to PM10 levels which
exceed the standard in the area.'' The evaluation of which precursors
need to be controlled to achieve the standard in a particular area is
typically conducted in the context of the state's preparing and the
EPA's reviewing an area's attainment plan SIP.
West Virginia's nonattainment NSR regulations at 45CSR19 do not
fully address all potential precursors to PM2.5. The West
Virginia SIP submissions included revisions to the definition of
``regulated NSR pollutant'' at 45CSR19-2.61.c which identifies
precursors to both ozone and PM2.5 in nonattainment areas.
With respect to PM2.5, the revised definition of ``regulated
NSR pollutant'' at 45CSR19-2.61.c identifies SO2 and
NOX as regulated PM2.5 precursors while volatile
organic compounds (VOCs) and ammonia are not identified as regulated
PM2.5 precursors in PM2.5 nonattainment areas in
the State. These revisions, although consistent with the 2008 NSR
PM2.5 Rule as developed consistent with subpart 1, may not
contain the elements necessary to satisfy the CAA requirements when
evaluated under the subpart 4 CAA statutory requirements. In
particular, West Virginia's submission does not include regulation of
VOCs and ammonia as PM2.5 precursors, nor does it include a
demonstration consistent with section 189(e) showing that major sources
of those precursor pollutants would not contribute significantly to
PM2.5 levels exceeding the standard in the area.
However, while West Virginia's submittals do not yet contain all of
the elements necessary to satisfy the CAA requirements when evaluated
under subpart 4, there are currently no designated PM2.5
nonattainment areas in West Virginia for any PM2.5 NAAQS
since the Martinsburg-Hagerstown nonattainment area in West Virginia
was redesignated to attainment on November 25, 2014 (79 FR 70099). As a
result, West Virginia is no longer obligated to submit an NNSR SIP
revision under section 189 of the CAA addressing PM2.5 NNSR
permitting requirements, which include the subpart 4 requirements.\7\
Therefore, EPA is proposing to grant approval to the nonattainment NSR
provisions in West Virginia's 2010, 2011, 2012, and 2014 SIP submittals
for revisions to 45CSR19 for nonattainment NSR requirements for
PM2.5.
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\7\ To the extent that any area is designated nonattainment for
PM2.5 in the future in West Virginia, the State will have
to make a submission within the timeframe provided by section
189(a)(2) of the CAA addressing how its NNSR permitting program
satisfies the CAA statutory requirements as to PM2.5,
including subpart 4 and any applicable PM2.5 federal
implementation rules.
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III. Proposed Action
EPA's review of this material indicates that the 2010, 2011, 2012
and 2014 SIP submittals collectively meet the federal counterpart
requirements in 40 CFR parts 51 and 52 for a nonattainment NSR
permitting program. For the reasons stated previously, EPA is proposing
to grant approval to these WV SIP submissions with the exception of the
revisions to 45CSR19-2.35.e.20 and 3.7.a.20. EPA is taking no action on
45CSR19 regulations relating to the definition of ``chemical process
plants'' which are at 45CSR19-2.35.e.20 and 3.7.a.20. EPA is soliciting
public comments on the issues discussed in this document. These
comments will be considered before taking final action.
IV. 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
[[Page 6495]]
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
nonattainment NSR 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.
Dated: January 23, 2015.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-02304 Filed 2-4-15; 8:45 am]
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