[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Proposed Rules]
[Pages 1133-1135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33198]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2015-0539; FR-9940-85-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Prevention of Significant Deterioration and Approval of 
Infrastructure State Implementation Plans for Specific National Ambient 
Air Quality Standards

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 
West Virginia Department of Environmental Protection (WVDEP) for the 
State of West Virginia on June 3, 2015.
    This revision pertains to West Virginia's Prevention of Significant 
Deterioration (PSD) permit program regulations for preconstruction 
permitting requirements for major sources. The revision includes a 
change in West Virginia's PSD regulations related to emissions of fine 
particulate matter (PM2.5). The State's June 3, 2015 
submittal satisfies its obligations pursuant to an earlier rulemaking 
in which EPA granted final conditional approval of West Virginia's PSD 
implementing regulations. This action also addresses specific 
infrastructure program elements specified in Clean Air Act (CAA) 
section 110(a)(2) necessary to implement, maintain, and enforce the 
national ambient air quality standards (NAAQS). This action is being 
taken under the CAA.

DATES: Written comments must be received on or before February 10, 
2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2015-0539 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-2015-0539, Amy Johansen, Acting Associate 
Director, Office of Permits and State Programs, Mailcode 3AP10, U.S. 
Environmental Protection Agency,

[[Page 1134]]

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-
2015-0539. 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 a SIP revision to EPA on June 3, 2015. This SIP 
revision request, 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). West Virginia is amending 
45CSR14 in response to changes EPA made to the NAAQS for 
PM2.5 that affect certain aspects of the PSD program 
requirements.
    On May 16, 2008, EPA promulgated a rule to implement the 1997 
PM2.5 NAAQS, including changes to the New Source Review 
(NSR) program (the 2008 NSR PM2.5 Rule). See 73 FR 28321. 
The 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.\1\ 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 (sulfur dioxide 
(SO2) and oxides of nitrogen (NOX)); (3) required 
states to account for gases that condense to form particles 
(condensables) in PM2.5 emission limits; and (4) established 
certain PSD program requirements. EPA's NSR requirements specific to 
PM2.5 have been subject to litigation in the United States 
Court of Appeal for the D.C. Circuit and to some subsequent revisions 
by EPA. For a detailed discussion of the NSR requirements for 
PM2.5 as relevant to this rulemaking for West Virginia's PSD 
provisions, see EPA's analysis and discussion in Technical Support 
Document; State of West Virginia, West Virginia Department of 
Environmental Protection; Division of Air Quality; Prevention of 
Significant Deterioration (PSD) SIP Revision Request (the WV PSD TSD) 
which is included in the docket for this proposed action (EPA-R03-OAR-
2015-0539) and is available online at www.regulations.gov.
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    \1\ The PSD permitting program is the NSR permit program in 
areas attaining a particular NAAQS.
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    In an earlier rulemaking action, EPA granted final condition 
approval of revisions to 45CSR14 made by West Virginia to address 
requirements of the CAA, 40 CFR 51.166 and the 2008 NSR 
PM2.5 Rule. See 80 FR 36483 (June 25, 2015). EPA's 
conditional approval was based upon West Virginia's commitment to 
include in its PSD regulations at 45CSR14 a significant monitoring 
concentration (SMC) of zero micrograms per cubic meter for 
PM2.5 to be consistent with federal PSD requirements. Id. 
EPA provided a detailed discussion of the changes West Virginia made to 
its PSD regulations in 45CSR14 to be consistent with the federal PSD 
program at 40 CFR 51.166 and the 2008 NSR PM2.5 Rule in our 
proposed conditional approval of West Virginia's June 6, 2012 and July 
1, 2014 SIP submissions (the 2012 and 2014 submissions) which contained 
several revisions to 45 CSR14. See 80 FR 16612 (March 30, 2015). West 
Virginia's June 3, 2015 SIP submittal that is the subject of this 
action includes an amended 45CSR14 for West Virginia's PSD program that 
was revised to include the PM2.5 SMC at zero micrograms per 
cubic meter and to address the deficiency noted in EPA's proposed 
conditional approval of 45CSR14. Id. With its June 3, 2015 submittal, 
West Virginia has made all of the changes to its PSD implementing 
regulations necessary to address PM2.5 as prescribed by the 
CAA, 40 CFR 51.166, and the 2008 NSR PM2.5 Rule.
    In this action, EPA is also proposing to approve several of West 
Virginia's infrastructure SIPs as meeting PSD elements of section 
110(a)(2) of the CAA for the 1997 ozone and PM2.5 NAAQS, the 
2006 PM2.5 NAAQS, the 2008 lead and ozone NAAQS, and the 
2010 nitrogen dioxide (NO2) and SO2 NAAQS.

II. Summary of SIP Revision and EPA Analysis

A. Summary of SIP Revision

    The SIP revision submitted by WVDEP on June 3, 2015 pertains to 
revisions to its PSD permit program regulations at 45CSR14-16.7.c that 
establish a SMC value of zero micrograms per cubic meter for 
PM2.5.

B. EPA Analysis

    EPA finds the revisions to 45CSR14 contained in the June 3, 2015 
submittal are consistent with the federal PSD program in the CAA and in 
40 CFR 51.166(i)(5)(i)(c) pertaining specifically to the SMC for 
PM2.5. The WV PSD TSD contains EPA's detailed discussion and 
analysis of the June 3, 2015 submittal and how it meets requirements 
for a PM2.5 SMC specifically and the requirements of 40 CFR 
51.166 and the 2008 NSR PM2.5 Rule in general. The WV PSD 
TSD is included in the docket

[[Page 1135]]

for this proposed action (EPA-R03-OAR-2015-0539) and is available 
online at www.regulations.gov.
    Because this submission fulfills the commitment made by West 
Virginia in the final conditional approval of West Virginia's earlier 
submittals of revisions to 45CSR14 (i.e., the 2012 and 2014 
submissions), EPA proposes full approval of West Virginia's PSD 
regulations at 45CSR14 in its entirety as 45CSR14 meets requirements in 
the CAA and its implementing regulations and proposes to remove the 
prior conditional approval. See 80 FR 36483 (final conditional approval 
of the 2012 and 2014 submissions of revisions to 45CSR14).
    Similarly, because West Virginia's regulations at 45CSR14 fully 
meet the federal requirements for PSD in the CAA and in 40 CFR 51.166 
as discussed in the WV PSD TSD, EPA also finds that West Virginia's PSD 
program addresses specific PSD-related portions of infrastructure 
program elements in section 110(a)(2) of the CAA for the 1997 ozone and 
PM2.5 NAAQS, the 2006 PM2.5 NAAQS, the 2008 lead 
and ozone NAAQS, and the 2010 NO2 and SO2 NAAQS. 
Thus, EPA proposes to approve several of West Virginia's SIP 
submissions as addressing PSD requirements in section 110(a)(2) of the 
CAA for these NAAQS. The WV PSD TSD contains a detailed discussion of 
the relevant West Virginia infrastructure SIP submissions, EPA's prior 
rulemaking action on those infrastructure SIPs, and EPA's rationale for 
finding those SIP submittals address PSD elements of section 110(a)(2) 
for the 1997 ozone and PM2.5 NAAQS, the 2006 
PM2.5 NAAQS, the 2008 lead and ozone NAAQS, and the 2010 
NO2 and SO2 NAAQS.\2\ EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.
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    \2\ As mentioned previously, the WV PSD TSD is included in the 
docket for this proposed action (EPA-R03-OAR-2015-0539) and is 
available online at www.regulations.gov.
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III. Proposed Action

    EPA is proposing to approve West Virginia's June 3, 2015 SIP 
submittal containing revised PSD permit program implementation 
regulations at 45CSR14. In a previous rulemaking action, EPA evaluated 
45CSR14 and found the provisions are consistent with the federal PSD 
permit program requirements at 40 CFR 51.166 with the exception of West 
Virginia's omission of a PM2.5 SMC at zero micrograms per 
cubic meter. See 80 FR 36483. With the June 3, 2015 SIP submittal of 
the revised West Virginia PSD regulations at 45CSR14 which now contain 
the PM2.5 SMC, West Virginia's PSD regulations are 
consistent with federal PSD requirements. EPA proposes to remove the 
conditional approval of the 2012 and 2014 submissions and fully approve 
45CSR14. EPA is also proposing to determine that West Virginia's 
infrastructure SIP submittals for the 1997 ozone and PM2.5 
NAAQS, the 2006 PM2.5 NAAQS, the 2008 lead and ozone NAAQS, 
and the 2010 NO2 and SO2 NAAQS meet PSD related 
requirements in section 110(a)(2) of the CAA. Finally, EPA proposes to 
remove the prior narrow disapproval of the West Virginia infrastructure 
SIPs for the 1997 ozone and PM2.5 NAAQS, the 2006 
PM2.5 NAAQS, and the 2008 lead and ozone NAAQS for not 
addressing fully all PSD requirements for section 110(a)(2) of the CAA.

IV. Incorporation by Reference

    In this proposed action, the 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 West Virginia regulations at 45CSR14 
regarding the PSD 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 and to several West Virginia infrastructure SIPs, 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: December 21, 2015.
Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2015-33198 Filed 1-8-16; 8:45 am]
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