[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