[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]
 BILLING CODE 6560-50-P