[Federal Register Volume 87, Number 218 (Monday, November 14, 2022)]
[Notices]
[Pages 68152-68153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24669]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL--10409-01-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 November 1, 2022, 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 November 1, 2022, EPA sent West Virginia a letter 
acknowledging that West Virginia's delegation of authority to implement 
and enforce Federal NESHAP 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, 
Four Penn Center, 1600 JFK Boulevard, Philadelphia, Pennsylvania 19103. 
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, Four Penn Center, 1600 JFK Boulevard, 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 July 1, 2022, 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),

[[Page 68153]]

parts 60, 61, and 63 as of June 1, 2021. On November 1, 2022, EPA sent 
West Virginia a letter acknowledging that effective April 1, 2022, 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 November 1, 
2022 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 July 1, 2022 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 (NESHAP) and New Source Performance Standards 
(NSPS) to include many such standards as found in 40 CFR parts 60, 61, 
and 63 as of June 1, 2021. 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 to WVDEP Director 
Michael Callaghan, EPA delegated to the State of West Virginia the 
authority to implement and enforce various federal NESHAP found in 40 
CFR part 63. In another letter to Director Callaghan dated January 8, 
2002, EPA delegated to the State of West Virginia the authority to 
implement and enforce various federal NESHAP found in 40 CFR part 61 
and NSPS 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 of 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 April 1, 2022. 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 April 1, 2022.
    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 (551 F.3rd 1019, D.C. Circuit 2008). If you have any 
questions, please contact me or Ms. Arlin Galarza-Hernandez, 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 authority to implement and enforce NESHAP and NSPS.

Cristina Fern[aacute]ndez,
Director, Air and Radiation Division, Region III.
[FR Doc. 2022-24669 Filed 11-10-22; 8:45 am]
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