[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]



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].


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 

    \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
2.66.a.2..........................  Added language identifying
                                     precursors to NAAQS pollutants to
                                     the definition of ``regulated NSR
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 

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 

[[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]