[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Rules and Regulations]
[Pages 48716-48719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20966]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0502; FRL-9984-48--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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving 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: This final rule is effective on October 29, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0502. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (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 through 
http://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On July 5, 2018 (83 FR 31348), EPA published a notice of proposed 
rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA 
proposed approval of a revision to the PSD regulations found at title 
45, chapter 14 of the Code of State Rules (CSR) as a revision to the 
West Virginia SIP. The formal SIP revision was submitted by West 
Virginia Department of Environmental Protection (WVDEP) on behalf of 
the State of West Virginia on June 6, 2017.
    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).
    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,\1\ 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.
---------------------------------------------------------------------------

    \1\ See 134 S.Ct. 2427.
---------------------------------------------------------------------------

    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 Tailoring Rule.\2\ 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

[[Page 48717]]

which there is a significant emissions increase from a modification.'' 
\3\
---------------------------------------------------------------------------

    \2\ 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.
    \3\ Id.
---------------------------------------------------------------------------

    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.
    Other specific requirements of West Virginia's June 6, 2017 
submittal and the rationale for EPA's proposed action are explained in 
the NPR and will not be restated here.

III. Public Comments

    EPA received one set of comments on the July 5, 2018 NPR. These 
comments are included in the docket for this action. However, the 
comments did not concern any of the specific issues raised in the NPR, 
nor did they address EPA's rationale for the proposed approval of 
WVDEP's submittal. Therefore, EPA is not addressing them here.

IV. Final Action

    EPA is approving WVDEP's June 6, 2017 submittal as a revision to 
the West Virginia SIP.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of 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 
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). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\4\
---------------------------------------------------------------------------

    \4\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

VI. Statutory and Executive Order Reviews

A. General Requirements

    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 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 rule 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it

[[Page 48718]]

is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 26, 2018. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action pertaining to West Virginia's PSD program may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 10, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table entitled ``EPA-Approved Regulations in 
the West Virginia SIP'' in paragraph (c) is amended by revising the 
entries for sections 45-14-1 through 45-14-21, 45-14-25, and 45-14-26 
to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved Regulations in the West Virginia SIP
----------------------------------------------------------------------------------------------------------------
                                                                                                 Additional
 State citation [Chapter 16-20                             State                                explanation/
          or 45 CSR]                Title/subject        effective     EPA approval date     citation at 40 CFR
                                                           date                                    52.2565
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
  [45CSR] Series 1 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution
                                 for the Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------
Section 45-14-1...............  General..............       6/1/17   9/27/2018 [Insert      Administrative
                                                                      Federal Register       changes.
                                                                      citation].
Section 45-14-2...............  Definitions..........       6/1/17   9/27/2018 [Insert      Administrative
                                                                      Federal Register       changes; revised
                                                                      citation].             definition of
                                                                                             ``subject to
                                                                                             regulation''.
Section 45-14-3...............  Applicability........       6/1/17   9/27/2018 [Insert      New state effective
                                                                      Federal Register       date.
                                                                      citation].
Section 45-14-4...............  Ambient Air Quality         6/1/17   9/27/2018 [Insert      New state effective
                                 Increments and                       Federal Register       date.
                                 Ceilings.                            citation].
Section 45-14-5...............  Area Classification..       6/1/17   9/27/2018 [Insert      New state effective
                                                                      Federal Register       date.
                                                                      citation].
Section 45-14-6...............  Prohibition of              6/1/17   9/27/2018 [Insert      New state effective
                                 Dispersion                           Federal Register       date.
                                 Enhancement                          citation].
                                 Techniques.
Section 45-14-7...............  Registration, Report        6/1/17   9/27/2018 [Insert      Administrative
                                 and Permit                           Federal Register       changes.
                                 Requirements for                     citation].
                                 Major Stationary
                                 Sources and Major
                                 Modifications.
Section 45-14-8...............  Requirements Relating       6/1/17   9/27/2018 [Insert      Administrative
                                 to Control                           Federal Register       changes.
                                 Technology.                          citation].
Section 45-14-9...............  Requirements Relating       6/1/17   9/27/2018 [Insert      Administrative
                                 to the Source's                      Federal Register       changes.
                                 Impact on Air                        citation].
                                 Quality.
Section 45-14-10..............  Modeling Requirements       6/1/17   9/27/2018 [Insert      New state effective
                                                                      Federal Register       date.
                                                                      citation].
Section 45-14-11..............  Air Quality                 6/1/17   9/27/2018 [Insert      Administrative
                                 Monitoring                           Federal Register       changes.
                                 Requirements.                        citation].
Section 45-14-12..............  Additional Impacts          6/1/17   9/27/2018 [Insert      New state effective
                                 Analysis                             Federal Register       date.
                                 Requirements.                        citation].
Section 45-14-13..............  Additional                  6/1/17   9/27/2018 [Insert      Administrative
                                 Requirements and                     Federal Register       changes.
                                 Variances for Source                 citation].
                                 Impacting Federal
                                 Class 1 Areas.
Section 45-14-14..............  Procedures for              6/1/17   9/27/2018 [Insert      Administrative
                                 Sources Employing                    Federal Register       changes.
                                 Innovative Control                   citation].
                                 Technology.
Section 45-14-15..............  Exclusions From             6/1/17   9/27/2018 [Insert      Administrative
                                 Increment                            Federal Register       changes.
                                 Consumption.                         citation].
Section 45-14-16..............  Specific Exemptions..       6/1/17   9/27/2018 [Insert      Administrative
                                                                      Federal Register       changes.
                                                                      citation].
Section 45-14-17..............  Public Review               6/1/17   9/27/2018 [Insert      Administrative
                                 Procedures.                          Federal Register       changes.
                                                                      citation].
Section 45-14-18..............  Public Meetings......       6/1/17   9/27/2018 [Insert      New state effective
                                                                      Federal Register       date.
                                                                      citation].
Section 45-14-19..............  Permit Transfer,            6/1/17   9/27/2018 [Insert      Administrative
                                 Cancellation and                     Federal Register       changes.
                                 Responsibility.                      citation].

[[Page 48719]]

 
Section 45-14-20..............  Disposition of              6/1/17   9/27/2018 [Insert      New state effective
                                 Permits.                             Federal Register       date.
                                                                      citation].
Section 45-14-21..............  Conflict with Other         6/1/17   9/27/2018 [Insert      Administrative
                                 Permitting Rules.                    Federal Register       changes.
                                                                      citation].
Section 45-14-25..............  Actual PALs..........       6/1/17   9/27/2018 [Insert      Administrative
                                                                      Federal Register       changes.
                                                                      citation].
Section 45-14-26..............  Inconsistency Between       6/1/17   9/27/2018 [Insert      Administrative
                                 Rules.                               Federal Register       changes.
                                                                      citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2018-20966 Filed 9-26-18; 8:45 am]
BILLING CODE 6560-50-P