[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Notices]
[Pages 5821-5822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02052]



[[Page 5821]]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9462-01-R3]


Delegation of Authority to the State of West Virginia To 
Implement and Enforce Additional or Revised National Emission Standards 
for Hazardous Air Pollutants Standards and New Source Performance 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of delegation of authority.

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SUMMARY: On December 7, 2021, the Environmental Protection Agency (EPA) 
sent the State of West Virginia (West Virginia) a letter acknowledging 
that West Virginia's delegation of authority to implement and enforce 
the National Emissions Standards for Hazardous Air Pollutants (NESHAP) 
and New Source Performance Standards (NSPS) had been updated, as 
provided for under previously approved delegation mechanisms. To inform 
regulated facilities and the public, EPA is making available a copy of 
EPA's letter to West Virginia through this notice.

DATES: On December 7, 2021, EPA sent West Virginia a letter 
acknowledging that West Virginia's delegation of authority to implement 
and enforce Federal NESHAPs and NSPS had been updated.

ADDRESSES: Copies of documents pertaining to this action are available 
for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of West 
Virginia's submittal are also 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: Yongtian He, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone 
number is (215) 814-2339. Mr. He can also be reached via electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION: On May 4, 2021, West Virginia notified EPA 
that West Virginia had updated its incorporation by reference of 
Federal NESHAP and NSPS to include many such standards as found in 
Title 40 of the Code of Federal Regulations (CFR), parts 60, 61, and 63 
as of June 1, 2020. On December 7, 2021, EPA sent West Virginia a 
letter acknowledging that effective June 1, 2021, West Virginia has the 
authority to implement and enforce the NESHAP and NSPS as specified by 
West Virginia in its notices to EPA, as provided for under previously 
approved automatic delegation mechanisms (49 FR 48692, 67 FR 15486, EPA 
delegation letters dated March 19, 2001 and January 8, 2002). All 
notifications, applications, reports, and other correspondence required 
pursuant to the delegated NESHAP and NSPS must be submitted to both EPA 
Region III and to the West Virginia Department of Environmental 
Protection, unless the delegated standard specifically provides that 
such submittals may be sent to EPA or a delegated State. In such cases, 
the submittals should be sent only to the West Virginia Department of 
Environmental Protection. A copy of EPA's December 7, 2021 letter to 
West Virginia follows:

``Ms. Laura M. Crowder, Director
Division of Air Quality
West Virginia Department of Environmental Protection
601 57th Street SE
Charleston, West Virginia 25304

Via email at [email protected]

Dear Ms. Crowder:

    This letter acknowledges your letter dated May 4, 2021, in which 
the West Virginia Department of Environmental Protection (WVDEP) 
Division of Air Quality (DAQ) informed the United States 
Environmental Protection Agency (EPA) that West Virginia had updated 
its incorporation by reference of federal National Emissions 
Standards for Hazardous Air Pollutants (NESHAPs) and New Source 
Performance Standards (NSPSs) to include many such standards as 
found in 40 CFR parts 60, 61, and 63 as of June 1, 2020. WVDEP DAQ 
noted in the letter that it understood it was automatically 
delegated the authority to implement these standards. WVDEP DAQ 
stated its intent to enforce the standards in conformance with the 
terms of EPA's previous delegations of authority pursuant to the EPA 
final rules published at 49 FR 48692 and 67 FR 15486, and EPA 
delegation letters.
    In two rulemakings, 49 FR 48692 (December 14, 1984) and 67 FR 
15486 (April 2, 2002), EPA established the basis for delegation to 
West Virginia of specified federal standards at 40 CFR parts 60, 61 
and 63. Subsequently, in a letter dated March 19, 2001 (enclosed), 
to WVDEP Director Michael Callaghan, EPA delegated to the State of 
West Virginia the authority to implement and enforce various federal 
NESHAPs found in 40 CFR part 63. In another letter to Director 
Callaghan dated January 8, 2002 (enclosed), EPA delegated to the 
State of West Virginia the authority to implement and enforce 
various federal NESHAPs found in 40 CFR part 61 and NSPSs found in 
40 CFR part 60). In those letters, EPA also established that future 
Part 60, Part 61 and Part 63 standards would be automatically 
delegated to West Virginia subject to the conditions set forth in 
those letters. Those rulemakings and letters continue to control the 
conditions of delegation of future standards and their terms should 
be consulted for the specific conditions that apply to each 
regulatory program. However, in general terms, for automatic 
delegation to take effect, the letters establish conditions that can 
be paraphrased as requiring: legal adoption the standards; 
restrictions on the kinds of wording changes West Virginia may make 
to the federal standards when adopting them; and specific 
notification from West Virginia to EPA when a standard has been 
adopted.
    WVDEP DAQ provided copies of the revised West Virginia 
Legislative Rules which specify the NESHAP and NSPS regulations West 
Virginia has adopted by reference. These revised Legislative Rules 
are entitled 45 CSR 34--``Emission Standards for Hazardous Air 
Pollutants,'' and 45 CSR 16--``Standards of Performance for New 
Stationary Sources.'' These revised Rules have an effective date of 
June 1, 2021. EPA has reviewed the Revised rules and determined that 
they meet the conditions for automatic delegation as established by 
EPA in its prior letters and rulemakings.
    Accordingly, EPA acknowledges that West Virginia now has the 
authority, as provided for under the terms of EPA's previous 
delegation actions, to implement and enforce the NESHAP and NSPS 
standards which West Virginia adopted by reference in West 
Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, 
effective on June 1, 2021.
    Please note that on December 19, 2008 in Sierra Club vs. EPA 
(551 F.3rd 1019, D.C. Circuit 2008), the United States Court of 
Appeals for the District of Columbia Circuit vacated certain 
provisions of the General Provisions of 40 CFR part 63 relating to 
exemptions for startup, shutdown, and malfunction (SSM). On October 
16, 2009, the Court issued the mandate vacating these SSM exemption 
provisions, which are found at 40 CFR part 63, 63.6(f)(1), and 
(h)(1).
    Accordingly, EPA no longer allows sources to use the SSM 
exemption as provided for in the vacated provisions at 40 CFR 
63.6(f)(1), and (h)(1), even though EPA has not yet formally removed 
the SSM exemption provisions from the General Provisions of 40 CFR 
part 63. Because West Virginia incorporated 40 CFR part 63 by 
reference, West Virginia should also no longer allow sources to use 
the former SSM exemption from the General Provisions of 40 CFR part 
63 due to the Court's ruling in Sierra Club vs. EPA.
    If you have any questions, please contact me or Ms. Mary Cate 
Opila, Chief, Permits Branch, at 215-814-2041.

Sincerely,
Cristina Fern[aacute]ndez,

Director, Air and Radiation Division''

Enclosures
cc: Renu Chakrabarty (via email at [email protected])
Mike Egnor (via email at [email protected])

    This notice acknowledges the updates of West Virginia's delegation 
of

[[Page 5822]]

authority to implement and enforce NESHAP and NSPS.

    Dated: January 26, 2022.
Cristina Fern[aacute]ndez,
Director, Air and Radiation Division, Region III.
[FR Doc. 2022-02052 Filed 2-1-22; 8:45 am]
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