[Federal Register Volume 88, Number 73 (Monday, April 17, 2023)]
[Rules and Regulations]
[Pages 23356-23361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07615]
[[Page 23356]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2022-0956; FRL-10885-02-R3]
Air Plan Disapproval; West Virginia; Revision to the West
Virginia State Implementation Plan To Add the Startup, Shutdown,
Maintenance Rule 45CSR1--Alternative Emission Limitations During
Startup, Shutdown, and Maintenance Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The Environmental Protection Agency (EPA) is disapproving a
state implementation plan (SIP) revision submitted by the State of West
Virginia on June 13, 2017. The revision pertains to a new rule setting
forth the requirements to establish, at the discretion of the Secretary
of the West Virginia Department of Environmental Protection, an
alternative emission limitation (AEL) for a source that requests an
AEL. This SIP revision was submitted subsequent to a finding of
substantial inadequacy and SIP call published on June 12, 2015, for
provisions in the West Virginia SIP related to excess emissions during
startup, shutdown, and malfunction (SSM) events. EPA is disapproving
this revision to the West Virginia SIP because it does not comply with
the requirements of the Clean Air Act (CAA). EPA will also be issuing a
finding of failure to submit (FFS) in a separate action, published
elsewhere in this issue of the Federal Register, to address West
Virginia's failure to correct the deficiencies identified in the June
12, 2015, SIP call.
DATES: This final action is effective on May 17, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2022-0956. All documents in the docket are listed on
the 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
www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1600 John F. Kennedy
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is
(215) 814-2053. Ms. Nichols can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA
finalized ``State Implementation Plans: Response to Petition for
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' \1\ hereafter referred to as the ``2015 SSM
SIP Action.'' The 2015 SSM SIP Action clarified, restated, and updated
the EPA's interpretation that SSM exemptions (whether automatic or
discretionary) and affirmative defense SIP provisions are inconsistent
with CAA requirements. The 2015 SSM SIP Action found that certain SIP
provisions in 36 states were substantially inadequate to meet CAA
requirements and issued a SIP call to those states to submit SIP
revisions to address the inadequacies. EPA established an 18-month
deadline by which the affected states had to submit such SIP revisions.
States were required to submit corrective revisions to their SIPs in
response to the SIP calls by November 22, 2016. With respect to the
West Virginia SIP, in the 2015 SSM SIP Action, EPA determined that 14
provisions were substantially inadequate to meet CAA requirements.
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\1\ 80 FR 33839, June 12, 2015.
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On June 13, 2017, West Virginia submitted a SIP revision requesting
the approval of a new state rule into the West Virginia SIP that sets
forth the requirements to establish an AEL for a source that may
require an AEL. The new West Virginia regulation, found at 45 Code of
State Rules (CSR) 1, is referred to as ``Rule 1'' in West Virginia's
SIP submission, and will be referred to the same way here.
On December 22, 2022, EPA published a notice of proposed rulemaking
(NPRM) related to West Virginia's June 13, 2017 submittal.\2\ In that
document, EPA proposed disapproval of West Virginia's submittal for
multiple reasons. These reasons included: (1) the SIP revision did not
remove any of the existing West Virginia SSM exemptions identified as
substantially inadequate in the 2015 SSM SIP Action; (2) the new AEL
regulations did not specify that any AELs granted by the state would be
submitted to EPA as SIP revisions; (3) the AEL regulations allowed
sources to request AELs on a case-by-case basis, rather than adopting
AELs for a narrow category of sources with similar characteristics and
controls; (4) the AEL regulations did not allow for AELs for
malfunctions; and (5) sources subject to the new source performance
standard (NSPS) or national emission standard for hazardous air
pollutants (NESHAPS) with startup and shutdown provisions could not
obtain AELs and instead had to comply with the startup or shutdown
standards in the applicable NSPS and/or NESHAP. A more complete
explanation of the reasons for the proposed disapproval can be found in
the December 22, 2022 NPRM.
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\2\ 87 FR 78617, December 22, 2022.
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In response to the NPRM, West Virginia submitted comments claiming
that EPA failed to understand that the SIP revision allowing for AELs
was only a first step in responding to the 2015 SSM SIP Action, and
that therefore the AEL SIP revision should be judged solely on its own
approvability under the Clean Air Act. Given this new information,
which was not clearly stated in the documents included in the AEL SIP
revision package, EPA is now assessing this AEL SIP revision
independently of the state SIP provisions identified as the basis for
West Virginia's inclusion in the 2015 SSM SIP Action. That is, EPA has
reviewed the SIP submission solely on the basis of whether it meets the
requirements of the Clean Air Act, rather than assessing whether it
also addresses the deficiencies cited in the 2015 SSM SIP Action.
However, when reviewed solely on this basis, and as discussed in
response to West Virginia's comments below, the AEL SIP revision is not
approvable as a SIP revision under section 110 of the CAA. In addition,
based on West Virginia's clarification, EPA is also taking a separate
action, published elsewhere in this issue of the Federal Register,
making a FFS for West Virginia's failure to submit any SIP revision
addressing the 14 State regulatory provisions identified in the 2015
SSM SIP Action.
II. EPA's Response to Comments Received
EPA received two sets of comments on the December 22, 2022 NPRM.
The full text of the comments is in the
[[Page 23357]]
docket for this action. A summary of the comments and EPA's responses
are provided herein.
A. Summary of Comments From the Sierra Club and the Environmental
Integrity Project.
Comment: These commenters agree with EPA's proposed disapproval of
West Virginia's SSM SIP submittal, and offer three major reasons why
EPA should disapprove West Virginia's SIP submission: (1) West
Virginia's SIP call response did not remove the unlawful SSM SIP
provisions, (2) West Virginia's proposed AEL rule would unilaterally
amend its SIPs through permits without undergoing the SIP revision
process, and (3) West Virginia's proposed AEL rule does not comply with
the CAA and the SSM SIP call guidance on AELs. As a result, these
commenters urge EPA to propose a FIP to remove the unlawful SSM SIP
provisions.
Response: The first three points raised by this commenter are
similar to reasons EPA cited for proposing to disapprove West
Virginia's SIP revision. In response to the request that EPA promulgate
a FIP if West Virginia does not promptly submit a SIP revision
addressing this disapproval, EPA notes that the states are not required
to adopt and submit to EPA SIP revisions creating AELs for periods of
SSM. States may choose to remove SSM exemptions, director's discretion
provisions, and affirmative defense provisions and not provide
alternative limits for periods of SSM. Thus, following this
disapproval, West Virginia could choose to not create new AEL
regulations and submit those as a SIP revision, and instead rely upon
their enforcement discretion should a source exceed an emission limit
which is part of the EPA-approved SIP. In a separate action, published
elsewhere in this issue of the Federal Register, EPA is issuing an FFS
for West Virginia's failure to address the issues cited in the 2015 SSM
SIP Action, and that FFS will provide deadlines, in accordance with CAA
sections 110(c) and 179(a).
B. Summary of Comments From the West Virginia Department of
Environmental Protection (WVDEP).
WVDEP objects to the proposed disapproval for multiple reasons,
with the most important being that the SIP submittal was not intended
to be a full remedy to the 2015 SSM SIP call. West Virginia also claims
that EPA's lack of communication with West Virginia deprived the State
of an opportunity to remedy the issues cited in the disapproval prior
to the proposed disapproval. In addition, West Virginia also requests
that EPA not take final action on this SIP revision until a decision is
issued by the U.S. Court of Appeals for the D.C. Circuit in a lawsuit
challenging EPA's SIP call. West Virginia's concerns are set forth with
more specificity below.
Comment: West Virginia asks that EPA delay final action on this SIP
submission until the United States Court of Appeals for the D.C.
Circuit issues its ruling on the lawsuits seeking to challenge EPA's
issuance of the 2015 SSM SIP Action.\3\
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\3\ Environ. Comm. Fl. Elec. Power v. EPA, et al, No. 15-1239
(D.C. Cir.) (and consolidated cases).
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Response: EPA is under a court-ordered deadline to take final
action on West Virginia's AEL SIP submittal.\4\ Given this deadline,
EPA cannot wait to take final action on West Virginia's AEL SIP
submittal until the D.C. Circuit rules on the lawsuits challenging the
2015 SSM SIP Call. The judicial consent decree requires EPA to take
final action on the West Virginia AEL SIP submittal within 240 days of
the Court's entry of the final decree. Public notice and opportunity to
comment upon this consent decree was published on April 11, 2022. No
comments were received from West Virginia. The consent decree was
entered on June 27, 2022, and as such the 240-day deadline for taking
final action was February 22, 2023, but was extended to April 12, 2023
by court order.
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\4\ Sierra Club, et. al., v. Michael S. Regan, Case No. 4:21-cv-
6956-SBA (N.D. Ca., Sept. 8, 2021).
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Even if there were not a court-ordered deadline for EPA to take
action, it would not be appropriate or necessary to wait until the D.C.
Circuit rules on the lawsuits challenging the 2015 SSM SIP Call. EPA's
disapproval of West Virginia's AEL SIP submission is based on other CAA
legal deficiencies that are unrelated to the deficiencies and Agency
policies underlying the 2015 SSM SIP Call (for example, the fact that
West Virginia's submission would allow for changes to West Virginia's
SIP without appropriate procedures), and thus are irrelevant to the
D.C. Circuit's eventual decision.
Comment: West Virginia states that the only purpose of the 2017
West Virginia SIP revision was to add Rule 1 into the West Virginia
SIP, and that nothing in the 2017 SIP revision states that the revision
was intended to be a complete response to the 2015 SSM SIP Action. West
Virginia further states that it was considering revising or removing
requirements identified in the 2015 SSM SIP Action through subsequent
legislative rulemaking after sources had a SIP-approved mechanism to
obtain AELs, but that EPA's failure to take timely action on the 2017
SIP revision prevented West Virginia from doing so. Therefore, West
Virginia argues that this SIP revision should have been evaluated on
its own merits, and EPA's reliance on West Virginia's failure to remove
the provisions allowing exemptions from emission limits during SSM
events cited in the 2015 SSM SIP Call is irrelevant.
Response: EPA notes that West Virginia's 2017 SIP submission did
not specifically state that it was only a first step in addressing the
2015 SSM SIP Call. EPA reviewed the SIP submission and found that, in
response to a comment submitted by the Sierra Club, West Virginia
stated that ``Division of Air Quality (DAQ) intends to propose removal
of the provisions identified in the SSM SIP Call after 45 CSR1 is
effective.'' West Virginia's own comments do not cite to this statement
in its SIP submission. In the absence of a specific statement directed
to EPA in the SIP submittal noting that this was DAQ's plan, it is easy
to see how EPA misunderstood DAQ's intent.
In response to this clarification by West Virginia, EPA is no
longer identifying the AEL submission's failure to fully address the
SIP call as a basis for its disapproval. Instead, in a separate action
published elsewhere in the ``Rules'' section of this issue of the
Federal Register, EPA is issuing a FFS for West Virginia's failure to
submit SIP revisions addressing the other deficiencies identified in
the 2015 SSM SIP Action.\5\ The reasons for issuing a FFS will be
discussed in that separate action and therefore are not discussed here.
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\5\ See Docket ID No. EPA-R03-OAR-2023-0179.
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Regarding West Virginia's claim that it was hampered by a lack of
communication from EPA, the Region and Agency has publicly recognized
that there were changes to the Agency's SSM policy in 2020 and 2021 \6\
which could have caused confusion and delay in the submission of SIP
revisions. However, the policy changes occurred well after the November
2016 deadline for submitting SIP revisions set by the 2015 SSM SIP
Call, which is still in place, and was never lifted. Indeed, the 2020
Memorandum specifically noted that it ``[did] not alter in any way the
determinations made in the 2015 SSM SIP Action that identified specific
state
[[Page 23358]]
SIP provisions that were substantially inadequate to meet the
requirements of the Act.'' \7\
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\6\ October 9, 2020, Memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
September 30, 2021; Memorandum ``Withdrawal of the October 9, 2020,
Memorandum Addressing Startup, Shutdown, and Malfunctions in State
Implementation Plans and Implementation of the Prior Policy,'' from
Janet McCabe, Deputy Administrator.
\7\ October 9, 2020 Memorandum at 3.
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Finally, based on EPA's new understanding of West Virginia's
intention in submitting the AEL SIP revision, EPA has analyzed the 2017
AEL SIP revision on its own merits, but nevertheless finds that the AEL
SIP revision is not approvable for two reasons that are independent of
the 2015 SSM SIP Action. First, as noted in the NPRM, the AEL SIP
revision cannot be approved because it does not specify that any AEL
granted by West Virginia must be submitted to EPA as a SIP revision for
approval. Instead, West Virginia's comments note that the submitted AEL
regulations require that any AEL granted by West Virginia must be
incorporated into a permit under West Virginia Rule 13, Rule 14, or
Rule 19, and that each of these permitting programs are approved by EPA
as part of the SIP. West Virginia cites to its original response to
EPA's 2016 comments when Rule 1 was proposed at the State level:
These permitting rules are all SIP approved and are an integral
part of the State air program designed to address compliance with
the NAAQS [National Ambient Air Quality Standard]. By virtue of
their SIP approval, it is immaterial whether an AEL is directly
approved into the SIP because it will be embodied in a permit under
a SIP approved program and is therefore fully federally enforceable.
West Virginia's comment does not address the most important element
of EPA's concern, which is that these regulations creating AELs do not
require that the AELs, when issued, be submitted to EPA for approval as
a SIP revision. While inclusion of the AEL limits in a permit issued
under an EPA-approved permitting program in the SIP does make the limit
federally enforceable, it does not provide a SIP mechanism for assuring
that SIP limits would not be changed without first going through the
CAA's SIP revision process. To the contrary, it creates a non-SIP
mechanism for amending the SIP by creating alternatives to it. It also
creates the potential for confusion because the associated AEL would
not be contained in the SIP with the SIP limits that it amends, and it
allows for the possibility of non-SIP AELs that conflict with the SIP
limits. Moreover, it does so without opportunity for EPA review or
disapproval where the AEL fails to meet CAA requirements. Any AEL which
revises a limit that is EPA-approved as part of the West Virginia SIP
must go through the process of being submitted as a SIP revision in
accordance with CAA section 110. EPA's SIP call makes clear that AELs
that modify SIP-approved emissions limitations, whether adopted on a
case-by-case basis or as an AEL generally applicable to a narrow
category of similar sources, must be presented to EPA for approval as a
SIP revision, and go through the SIP revision process. This is because
the AELs at issue here would be changes to a state emission regulation
adopted as part of the state's SIP to implement the CAA, and as such
must be approved as a SIP revision by EPA. States cannot unilaterally
make changes to SIP-approved emission limits without the requirements
of CAA section 110 being met, including a public comment process and
EPA approval.
EPA specifically addressed this concern in the 2015 SSM SIP Action,
at 80 FR 33918, June 12, 2015:
Pursuant to the EPA's own responsibilities under sections
110(k)(3), 110(l) and 193 . . ., it would be inappropriate for the
Agency to approve a SIP provision that automatically preauthorized
the state unilaterally to revise the SIP emission limitation without
meeting the applicable procedural and substantive statutory
requirements for a SIP revision.
The 2015 SSM SIP Action also stated--
It is a fundamental tenet of the CAA that states cannot
unilaterally change SIP provisions, including the emission
limitations within SIP provisions, without the EPA's approval of the
change through the appropriate process.
Thus, the fact that an AEL must be incorporated into a permit that is
part of the EPA-approved West Virginia SIP does not do away with this
requirement that the AEL be submitted as a SIP revision and go through
the SIP revision process.
The second reason for disapproving the AEL SIP submission which is
unrelated to the deficiencies in the 2015 SSM SIP Action is that the
AEL prohibits a source from obtaining an AEL if that source is subject
to a CAA section 111 Federal new source performance standard (NSPS)
and/or a national emission standard for hazardous air pollutants
(NESHAP) under section 112, and that NSPS or NESHAP has a startup or
shutdown provision. The regulation at 45CSR1-1.5.b specifically states
that persons subject to NSPS in 45CSR16 or to NESHAPS in 45CSR34
``shall meet the applicable startup and shutdown provisions of the
applicable Federal rule and are not eligible for an alternative
emission limit under this rule for affected sources.'' As EPA explained
in the 2015 SSM SIP Action and in the NPRM for this action, those NSPS
and NESHAPS adopted before 2008 but not yet updated may contain
problematic exemptions for startups and shutdowns that have not yet
been corrected to comply with the 2008 Sierra Club v. Johnson
decision.\8\ West Virginia's 45CSR1-1-5.b does not distinguish between
the updated standards and not-yet-updated standards. For those not-yet-
updated, the Agency cannot approve as a SIP revision a regulation that
allows these NSPS and/or NESHAP-related SSM provisions to continue to
exist in State-issued permits, nor can it approve a blanket provision
preventing the State from issuing or revising permits to address the
problematic provisions.\9\ In addition, West Virginia's blanket rule
requiring sources to follow applicable NSPS or NESHAP startup and
shutdown provisions assumes that emission limitation requirements in
recent NESHAP and NSPS are appropriate for all pollutants and sources
regulated by the SIP. That is, the NSPS or NESHAP may not be designed
to address the excess emission of NAAQS pollutants, which the SIPs seek
to control, and as such may not adequately address excess emission of
NAAQS pollutants during startup or shutdown. West Virginia's regulation
assumes, without support, that NSPS and/or NESHAP startup and shutdown
provisions are directed at controlling emissions of NAAQS pollutants,
which may not be the case. Thus, a source's compliance with an NSPS or
NESHAP startup or shutdown provision is not guaranteed to address
excessive emissions of NAAQS pollutants or precursors. Therefore, the
particular emissions limitation which any particular NSPS or NESHAP
adopts for a startup or shutdown event as part of a continuously
applicable emission limitation would still need to be evaluated on a
case-by-case basis as to their applicability and appropriateness as
AELs for SIP purposes.
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\8\ 87 FR 78617, at 78620, December 22, 2022.
\9\ Id.
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Comment: Rule 1 does not establish limits for sources. West
Virginia objects to EPA citing as one reason for the disapproval the
fact that the SIP submittal setting AEL requirements did not address
those provisions of West Virginia's regulations granting sources an
automatic or discretionary exemption during SSM events that were
specifically cited by EPA in the 2015 SSM SIP Action. West Virginia
notes that states are allowed some discretion in how they establish
programs to meet CAA requirements, and they chose to adopt the guidance
and codify the requirements for sources to establish AELs. West
Virginia also seems to
[[Page 23359]]
believe that EPA's comments ``suggest that West Virginia should have
conducted a detailed technical analysis for each distinct category of
sources . . .''.
Response: As noted above, in response to West Virginia's claim that
the AEL SIP revision was not intended to address all of the
deficiencies cited in the 2015 SSM SIP Action, EPA is evaluating the
AEL SIP submission solely as to whether it meets the requirements for
approvability under the CAA, without regard to whether it addresses all
the 2015 SSM SIP Action deficiencies. Thus, whether the AEL SIP
submission addresses all the SIP Action deficiencies is no longer
relevant to this action.
Regarding the claim that EPA's proposal suggests that West Virginia
should have conducted an analysis for each distinct category of
sources, EPA believes that West Virginia is misinterpreting the
discussion in the proposed disapproval at 87 FR 78620 (87 FR 78617,
December 22, 2022). That discussion points out that some NSPS and
NESHAP regulate pollutants other than criteria pollutants. Therefore,
controls, operational standards and other measures in those regulations
that are meant to address non-criteria pollutants may not work for
criteria pollutants. As such, reliance by a state on the NSPS or NESHAP
control requirements may not address the emission of pollutants
regulated by a state's SIP.
Comment: WVDEP did not and does not now consider it necessary to
require all sources to apply for an AEL, nor is it necessary for the
DEP to conduct a detailed analysis to review every permit for every
source to make that determination.
Response: EPA agrees that it may not be necessary for all sources
to apply for an AEL. However, the EPA statement quoted in West
Virginia's comments does not say or imply that every source must apply
for an AEL. As noted above, EPA also did not state that West Virginia
must conduct a detailed analysis of every permit for every source.
Comment: The WVDEP disagrees with the EPA's concern regarding the
first of the seven criteria set forth in the 2015 SSM SIP Action
because the criterion for narrowly defined source categories using
specific control strategies is embodied in the West Virginia case-by-
case approach codified in Rule 1. WVDEP argues that the EPA has been
unable to define alternatives for narrowly defined source categories in
the almost eight years since it finalized the 2015 SSM SIP Call and
objects to EPA's expectation that the states do the same in a much
shorter time frame and without EPA assistance.
Response: EPA agrees that West Virginia's case-by-case approach to
AELs embodies the idea of granting AELs narrowly to specific types of
sources using specific controls. However, EPA continues to believe that
the case-by-case approach could prove to be a resource-intensive
endeavor for WVDEP. As such, EPA reiterates that West Virginia could
meet the requirements of the 2015 SSM SIP Action by removing the cited
SSM exemptions from its SIP. There is no requirement that West Virginia
adopt an AEL regulation to address the SIP call. This approach would
avoid West Virginia having to undertake the potentially difficult task
of creating AELs. If West Virginia nevertheless decides to proceed with
a case-by-case AEL approach, the important point is that the regulation
allowing for AELs must make it clear that each AEL must be submitted as
a SIP revision to EPA for approval in accordance with section 110 of
the CAA. In addition, as EPA explained in the proposed disapproval,
West Virginia's case-by-case approach could lead to inconsistent
alternative limits for sources that, based on similar operating
characteristics, fuels, and other similar traits, should have similar
AELs, and makes it difficult to consider any cumulative impact of
source-specific emission limitations on West Virginia's air quality.
Moreover, consistent with the court decision in Sierra Club v. EPA, 551
F.3d 1019 (D.C. Cir. (2008)) and provisions set forth in CAA section
302(k), EPA is revising NESHAP and NSPS regulations, which generally
apply to defined source categories and require specific emission
controls or other standards, as they come up for statutorily required
review to eliminate SSM exemptions and ensure that standards apply at
all times.
Comment: The fact that malfunctions are not included in the scope
of 45CSR1 is not a reason for the SIP to be disapproved.
Response: EPA agrees. In the NPRM, EPA specifically points out that
states are not required to establish an AEL for malfunction.\10\
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\10\ 87 FR 78620, December 22, 2022.
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Comment: WVDEP does not agree that an AEL developed by the EPA
under the NESHAP program for an overlapping source category would not
be relevant for sources covered by Rule 1. The WVDEP is confused by the
EPA's argument that West Virginia should rely on a case-by-case
analysis regarding the use of alternative limits allowed under a
particular NSPS or NESHAP, which contradicts EPA's previous concern
regarding WVDEP use of case-by-case analysis under Rule 1.
Response: EPA has reviewed the NPRM and cannot identify an EPA
statement suggesting that an AEL developed by EPA under the NESHAP
program for an overlapping source category \11\ would not be relevant
for sources seeking an AEL under Rule 1. EPA believes that West
Virginia is conflating EPA's concern that existing SSM exemptions in
NESHAPS should not be relied upon with EPA's other expressed concern
that NESHAPS may not be focused on addressing criteria pollutants (or
criteria pollutant pre-cursors), so reliance on limits in such NESHAP
limits addressing periods of SSM for these other pollutants may not
control certain criteria pollutants, which are the focus of SIPs. The
discussion of these issues, at 87 FR 78620 of EPA's NPRM, was in the
context of 45CSR1-1-5.b, which states that sources subject to NSPS, as
incorporated into 45CSR16, and NESHAPS, as incorporated into 45CSR34,
shall follow any startup or shutdown provisions set forth in an
applicable NSPS and/or NESHAP and is not eligible for an AEL. EPA has
been clear that state reliance on NSPS or NESHAPs with ``legacy'' SSM
exemptions is not an acceptable alternative to the removal of the
specific SSM provisions cited in the 2015 SSM SIP Call. EPA is
separately working to remove these SSM exemptions, and if EPA develops
AELs for emissions of certain NAAQS pollutants when removing these SSM
provisions from NSPS and NESHAPS, those AELs may be relevant for
purposes of the state if it elects to set an AEL for the same NAAQS
pollutants when removing SSM provisions from its SIP. If EPA has not
yet removed such SSM exemption, the state may, in conjunction with
removing its SIP-based SSM exemption, elect to establish an AEL. If so,
it would need to perform a ``case-by-case'' analysis of the particular
source category at issue to determine what would constitute an
appropriate AEL. EPA also notes, again, that West Virginia could
resolve the CAA violations detailed in the 2015 SSM SIP Call without
implementing any AELs, but simply by removing the violating provisions
from the State's SIP.
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\11\ EPA interprets ``overlapping source category'' as a source
category currently granted an SSM exemption by state regulations
which is also regulated as a NESHAP source category.
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Comment: At multiple places, West Virginia notes that EPA did not
comment on certain issues when it
[[Page 23360]]
submitted comments to the state during the 2016 public comment period.
Response: EPA's relevant comments, dated July 28, 2016, addressed
seven submitted West Virginia proposed air quality rules, including
Rule 1. These rules were submitted by WVDEP to EPA on or about June 29,
2016. At that time, EPA identified four issues, one being an issue
cited in this disapproval, that the AEL limitations must be submitted
for EPA approval into West Virginia's SIP for SIP compliance purposes.
EPA's failure to identify all of its concerns with Rule 1 at that time
is not a waiver of its responsibility to do so now, and EPA notes that
it must also address comments submitted by commenters in response to
EPA's NPRM. Commenter Sierra Club has identified many of the same
issues with Rule 1 as EPA, so even if EPA had not raised these issues
in the NPRM, the issues would need to be addressed.
III. Final Action
EPA is disapproving West Virginia's June 13, 2017 submittal as a
revision to the West Virginia SIP.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this final action disapproving West Virginia's new rule
related to AELs as a SIP revision merely ascertains that this State law
does not meets Federal requirements and therefore does not impose
additional requirements beyond those imposed by State law.
Additional information about these statutes and Executive orders
can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA, because this SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves certain
State requirements for inclusion in the SIP.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain pre-existing State requirements for
inclusion in the SIP.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP EPA is disapproving would not
apply on any Indian reservation land or in any other area where the EPA
or an Indian tribe has demonstrated that a tribe has jurisdiction and
will not impose substantial direct costs on tribal governments or
preempt tribal law. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because this SIP disapproval does not in-and-of
itself create any new regulations, but simply disapproves certain pre-
existing State requirements for inclusion in the SIP.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
in this action. Consideration of EJ is not required as part of this
action, and there is no information in the record inconsistent with the
stated goal of E.O. 12898 of achieving environmental
[[Page 23361]]
justice for people of color, low-income populations, and Indigenous
peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. 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 June 16, 2023. Filing a petition for
reconsideration by the Administrator of this final action 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 action.
This action pertaining to the disapproval of West Virginia's June 13,
2017 submittal, 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.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-07615 Filed 4-14-23; 8:45 am]
BILLING CODE 6560-50-P