[Federal Register Volume 83, Number 117 (Monday, June 18, 2018)]
[Proposed Rules]
[Pages 28179-28181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13045]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0503; FRL-9979-55--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Minor New Source Review Permitting

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 changes to West 
Virginia's minor New Source Review (NSR) permit program. This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before July 18, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0503 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: Mr. David Talley, (215) 814-2117, or 
by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 6, 2017, the West Virginia Department of Environmental 
Protection (WVDEP) submitted on behalf of the State of West Virginia a 
formal revision, requesting EPA's approval of its revised minor NSR 
regulations, ``45CSR13--Permits for Construction, Modification, 
Relocation and Operation of Stationary Sources of Air Pollutants, 
Notification Requirements, Administrative Updates, Temporary Permits, 
General Permits, Permissions to Commence Construction, and Procedures 
for Evaluation,'' as a revision to the West Virginia SIP.
    Section 110(a)(2)(C) of the CAA requires SIPs to include a 
preconstruction permit program for both major and minor sources. More 
specifically, SIPs must include the permit programs required under 
subpart C of title I and must have minor preconstruction programs that 
assure that the national ambient air quality standards (NAAQS) are 
maintained. Additionally, 40 CFR 51.160 through 51.163 outline the 
federal requirements which apply to minor permit issuance, including 
the required administrative and federally enforceable procedures, and 
the procedures for public

[[Page 28180]]

participation. Under the minor source permitting rules under the Code 
of State Rules (CSR) at 45CSR13, West Virginia implements minor 
preconstruction program requirements by issuing permits to: (1) 
Construct and operate new stationary sources which are not major 
sources, (2) modify non-major stationary sources, (3) make non-major 
modifications to existing major stationary sources, and (4) relocate 
non-major stationary sources. These rules also establish requirements 
for obtaining a temporary permit and Class I and Class II general 
permit registration. EPA last approved a revision to 45CSR13 on July 
21, 2014. See 79 FR 42211.

II. Summary of SIP Revision and EPA Analysis

A. Summary of SIP Revision

    WVDEP's June 6, 2017 SIP submittal contains a number of revisions 
to 45CRSR13, many of them administrative or clarifying in nature. The 
non-administrative changes include: (1) Revisions to the definitions of 
modification and stationary source; (2) Revisions to and clarifications 
of the provisions allowing applicants to store equipment onsite prior 
to receiving a permit; and (3) Revisions to the applicability criteria 
for Class I and Class II administrative updates.

B. EPA Analysis

1. ``Modification'' and ``Stationary Source'' Definition Changes
    WVDEP added language excluding greenhouse gas (GHG) emissions under 
the definitions of ``Modification'' and ``Stationary Source'' at 
45CSR13 sections 45-13-2.17.a and 45-13-2.24.b, respectively. The 
specific language added to both definitions is as follows, ``. . . 
other than emissions of any one or the aggregate of all GHGs, the air 
pollutant defined in 40 CFR 86.1818-12(a) as the aggregate group of six 
greenhouse gases: carbon dioxide, nitrous oxide, methane, 
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.'' The 
addition of this language to both definitions clarifies that GHG 
emissions are not subject to the minor NSR permitting requirements of 
45CSR13. In accordance with West Virginia's Prevention of Significant 
Deterioration (PSD) regulations at 45CSR14, preconstruction permitting 
requirements for GHG sources are only triggered for major sources or 
major modifications, and only when such source/modification is already 
``major'' for another pollutant (i.e., a source cannot be ``major'' for 
GHGs alone). This is consistent with the federal PSD regulations at 40 
CFR 51.166 and 52.21. Additionally, these revisions are appropriate and 
meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA 
section 110(a)(2)(C). Further, the revisions 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.
2. ``Store-on-Site'' Clarifications
    WVDEP's previously approved regulations allow sources to 
``(r)eceive or store on-site or off-site any equipment or supplies 
which make up in part or in whole an emission unit or any support 
equipment, facilities, building or structure,'' prior to receiving a 
permit under 45CSR13.\1\ See 45CSR13 section 45-13-5.1.i. WVDEP's June 
6, 2017 submittal included a revision to 45-13-5.1.i which clarifies 
that such supplies etc. may be stored on-site `` . . . on its permanent 
pad or foundation or at any other location at the stationary source.'' 
In addition, section 45-13-2 has been revised to add a definition of 
``store on-site'' which clarifies that any equipment stored on-site 
must be kept in the same condition as it was received, and not `` . . . 
modified, erected or installed.'' See 45CSR13 section 45-13-2.26. While 
there are no corresponding federal regulations, EPA finds these 
revisions approvable because they are essentially adding conditions to 
an already approved regulation, and because they meet the requirements 
of 40 CFR 51.160-51.163 and CAA section 110(a)(2)(C). Additionally, 
they are consistent with CAA section 110(l) because they will not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable CAA requirement.
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    \1\ WVDEP's ``store on-site'' provisions do not apply to major 
PSD or nonattainment NSR permits issued in accordance with 45CSR14 
or 45CSR19.
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3. Class I and Class II Administrative Updates
    WVDEP's June 6, 2017 submittal also revised the applicability 
criteria for sources seeking Class I and Class II administrative 
updates to minor NSR permits issued under 45CSR13.
    The primary difference between Class I and II updates is that, 
pursuant to 45-13-4.1.d, public notice is not required for Class I 
updates. For Class II updates, WVDEP provides a 30-day public notice 
period, in accordance with 45-13-8.3. Additionally, sources requesting 
Class I amendments may make the change upon submitting the request, 
prior to receiving a revised permit from WVDEP. In WVDEP's currently 
approved SIP, only changes to permit conditions which result in a 
decrease in emissions can be approved under a Class I update. Class II 
updates must be used for changes which result in an increase or no 
change in emissions. See 45CSR13 sections 45-13-4.2.a.8 and 45-13-
4.2.b. WVDEP's June 6, 2017 submittal revised those provisions so that 
rather than applying only to permit revisions which result in an 
emissions decrease, a Class I update can be used for a permit revision 
resulting in no emissions increase. A Class II update now must be used 
in instances where the revision would result in an emissions increase. 
EPA believes this is a reasonable approach to streamlining WVDEP's 
administrative burden, and finds these revisions approvable because 
they meet the requirements of 40 CFR 51.160-51.163 and CAA section 
110(a)(2)(C). Additionally, they are consistent with CAA section 110(l) 
because they will not interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable CAA requirement.
4. Non-Substantive Changes
    In addition to the revisions previously discussed, WVDEP's June 6, 
2017 submittal included a number of non-substantive, clarifying and/or 
administrative changes. Some examples include the deletion of 45CSR13 
section 45-13-1.5 which referenced the former version of 45CSR13, re-
codifications required by insertions or deletions, (e.g., 45CSR13 
sections 45-13-2.26 through 45-13-28), and the deletion of 45CSR13 
section 45-13-5.8, which was an antiquated reference to operating 
permits (permits issued under 45CSR13 include authorization to 
construct and operate). WVDEP's submittal included an underline/
strikeout version of the submittal so that all revisions to 45CSR13 can 
been seen. This is included in the docket for this action and online at 
www.regulations.gov.
    These changes to 45CSR13 have been made in order to clarify and 
streamline the minor NSR program, and are appropriate and meet the 
federal requirements of 40 CFR 51.160 through 51.163, and CAA section 
110(a)(2)(C). Additionally, the revisions 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.

[[Page 28181]]

III. Proposed Action

    EPA's review of this material indicates that WVDEP's June 6, 2017 
SIP submittal meets the requirements under section 110 of the CAA. EPA 
is proposing to approve the West Virginia SIP revision, adding the 
revised version of 45CSR13 to the West Virginia SIP, which will replace 
the current version of 45CSR13 last approved by EPA on July 21, 2014. 
See 79 FR 42212. EPA is soliciting public comments on the issues 
discussed in this document. 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 regulations at 45CSR13 
regarding minor NSR permitting program requirements as 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, incorporating by reference the 
West Virginia regulations at 45CSR13 regarding minor NSR permitting 
program requirements, 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: June 6, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2018-13045 Filed 6-15-18; 8:45 am]
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