2015-15530. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is conditionally approving two State Implementation Plan (SIP) revisions submitted by the West Virginia Department of Environmental Protection (WVDEP) for the State of West Virginia on July 1, 2014 and June 6, 2012. These revisions pertain to West Virginia's Prevention of Significant Deterioration (PSD) permit program and include provisions for preconstruction permitting requirements for major sources of fine particulate matter (PM_2.5) found in West Virginia regulations. This action is being taken under the Clean Air Act (CAA).

DATES:

This final rule is effective on July 27, 2015.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-EPA-R03-OAR-2015-0028. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., 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 either electronically through www.regulations.gov or in hard copy 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. Copies of the State submittal are 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:

Mr. Paul Wentworth, [phone], or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On March 30, 2015 (80 FR 16612), EPA published a notice of proposed rulemaking (NPR) which proposed conditional approval for two West Virginia SIP revisions submitted on July 1, 2014 (2014 submittal) and June 6, 2012 (2012 submittal). A timely and adverse comment was submitted on EPA's NPR. A summary of the comment and EPA's response is provided in Section III of this document.

II. Summary of SIP Revision

The SIP revisions submitted by WVDEP on July 1, 2014 and June 6, 2012 involve amendments to 45CSR14 (Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration). A summary of the changes made in the 2012 submittal and 2014 submittal are available in the docket for this action in a document titled, “Summary of West Virginia NSR Changes.” Generally, the revisions in the 2012 submittal were submitted to incorporate provisions related to EPA's implementation rule for the 1997 PM_2.5 National Ambient Air Quality Standard (NAAQS). On May 16, 2008, EPA promulgated a rule to implement the 1997 PM_2.5 NAAQS, including changes to the New Source Review (NSR) program (the 2008 NSR PM_2.5 Rule). See 73 FR 28321. The 2008 NSR PM_2.5 Rule revised the NSR program requirements to establish the framework for implementing preconstruction permit review for the PM_2.5 NAAQS in both attainment and nonattainment areas.^[1] The 2014 submittal revised certain subdivisions of the 2012 submittal by: Adding “PM condensable emissions” to the definition of “regulated NSR pollutant”; adding language identifying precursors to NAAQS pollutants to the definition of “regulated NSR pollutant”; deleting the 24-hour de minimis air quality impact concentration (or Significant Monitoring Concentration (SMC)) value for PM_2.5; adding a provision exempting requirements of subsection 45CSR14-9 (Requirements Relating to the Source's Impact on Air Quality) based on the completeness date of permit applications; and, deleting the Significant Impact Levels (SIL) provisions in their entirety.

The 2014 submittal thus addresses and corrects a deficiency in West Virginia's PSD permit program previously identified by EPA in its May 9, 2013 disapproval of a portion of WVDEP's August 31, 2011 SIP revision to 45CSR14 section 2.66. See 78 FR 27062 (disapproving a narrow portion of West Virginia's August 31, 2011 SIP submittal for failure to satisfy requirement that emissions of PM_2.5 and coarse particulate matter (PM₁₀) shall include gaseous emissions which condense to form particulate matter (PM) at ambient temperatures). This narrow disapproval extended only to the lack of condensable emissions within the definition of “regulated NSR pollutant,” found at 45CSR14 section 2.66 and did not alter EPA's October 17, 2012 (77 FR 63736) approval of the remaining portions of West Virginia's August 31, 2011 SIP submittal which addressed other provisions in 45CSR14. The 2014 submittal contained a revision to the language at 45CSR14 section 2.66.a.1 which now includes PM condensable emissions in the definition of “regulated NSR pollutant.” In summary, the 2014 submittal added PM condensable emissions to the definition of “regulated NSR pollutant” and deleted the SILs and SMC for PM_2.5 provisions in 45CSR14.

EPA finds the revisions to 45CSR14 contained in the 2012 submittal and the 2014 submittal mirror the PSD requirements of the 2008 NSR PM_2.5 Rule and meet CAA requirements for the PSD permitting program in the CAA and its implementing regulations with certain exceptions described in the next paragraph. The 2014 submittal addresses and corrects the deficiency identified in EPA's May 9, 2013 disapproval (78 FR 27062) by adding language to the provision at 45CSR14 section 2.66.a.1 which now includes PM condensable emissions in the definition of “regulated NSR pollutant.” Thus, EPA finds West Virginia has addressed the deficiency noted in our narrow disapproval in 78 FR 27062.

As discussed in the NPR, the CAA's PSD provisions also establish maximum allowable increases over baseline concentrations—also known as “increments”—for certain pollutants. EPA has the task of promulgating regulations to prevent the significant deterioration of air quality that would result from the emissions of pollutants EPA began regulating after Congress enacted the PSD provisions in the CAA, which includes PM_2.5. The PSD provisions establish preconstruction review and permitting of new or modified sources of air pollution. In 2007, EPA proposed a rule establishing increments for PM_2.5 and also proposed two screening tools that would exempt permit applicants from some air quality analysis and monitoring required for PSD: SILs and SMC. See 72 FR 54112 (September 21, 2007). In our October 20, 2010 final rule (the PM_2.5 PSD Increments-SILs-SMC Rule), EPA set values for both SILs and SMC for PM_2.5.See 75 FR 64864.

The Sierra Club challenged EPA's authority to implement PM_2.5 SILs and SMC for PSD purposes as promulgated in the PM_2.5 PSD Increments-SILs-SMC Rule. See Sierra Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013). On January 22, 2013, the D.C. Circuit granted a request from EPA to vacate and remand to the Agency the portions of the PM_2.5 PSD Increments-SILs-SMC Rule addressing the SILs for PM_2.5 (found in paragraph (k)(2) in 40 CFR 51.166 and 52.21), except for the parts codifying the PM_2.5 SILs at 40 CFR 51.165(b)(2), so that the EPA could voluntarily correct an error in the provisions. Id. at 463-66. The D.C. Circuit also vacated parts of the PSD Increments-SILs-SMC Rule establishing the PM_2.5 SMC, finding that the Agency had exceeded its statutory authority with respect to these provisions. Id. at 469.

In response to the D.C. Circuit's decision, EPA took final action on December 9, 2013 to remove the SIL provisions from the Federal PSD regulations in 40 CFR 52.21 and to revise the SMC for PM_2.5 to zero micrograms per cubic meter. See 78 FR 73698. Because the D.C. Circuit vacated the SMC provisions in 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), EPA revised the existing concentration for the PM_2.5 SMC listed in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per cubic meter. EPA did not entirely remove PM_2.5 as a listed pollutant in the SMC provisions because to do so might lead to the issuance of permits that contradict the holding of the D.C. Circuit as to the statutory monitoring requirements. Id. (providing EPA's explanation for including the zero micrograms per cubic meter SMC).

While WVDEP's 2014 submittal appropriately removes SILs for PM_2.5 consistent with the D.C. Circuit's Sierra Club v. EPA decision and our final December 9, 2013 rulemaking (78 FR 73698), West Virginia's PSD provision at 45CSR14-16.7.c (included in the 2014 submittal) does not include a SMC value of zero micrograms per cubic meter for PM_2.5 consistent with the D.C. Circuit's Sierra Club v. EPA decision and our December 9, 2013 rulemaking (78 FR 73698) which addressed the D.C. Circuit's vacature of the SMC provisions in 40 CFR parts 51 and 52 for PM_2.5.^[2] Therefore, West Virginia's PSD regulation, 45CSR14, does not fully meet the requirements for PSD programs as set forth in the 2008 NSR PM_2.5 Rule, the D.C. Circuit's decision on SILs and SMC in Sierra Club v. EPA, and in EPA's December 9, 2013 rulemaking addressing that decision for SILs and SMC.

However, on January 20, 2015, West Virginia committed to submitting an additional SIP revision with a revised PSD regulation at 45CSR14-16.7.c which will incorporate a SMC value of zero micrograms per cubic meter for PM_2.5 to address this discrepancy. West Virginia committed to submitting this SIP revision no later than one year following the effective date of the final rulemaking notice for conditional approval of the 2012 and the 2014 submittals so that EPA can conditionally approve the 2012 and 2014 submittals.^[3] See CAA section 110(k)(4). With the exception of the absence of the SMC value of zero micrograms per cubic meter for PM_2.5 which WVDEP has committed to address, EPA finds the 2012 and 2014 submittals meet applicable requirements for a PSD permitting program in the CAA, its implementing regulations, and the 2008 NSR PM_2.5 Rule.

III. Public Comments and EPA Responses

Comment. EPA received one comment on the proposed rulemaking which states that EPA should not approve the SIP revision until the PM_2.5 increments are included in the program.

Response. EPA disagrees that we should not conditionally approve the 2012 submittal and 2014 submittal at this time. West Virginia's present SIP-approved PSD program retains the PM_2.5 increments at 45CSR14-4 (Ambient Air Quality Increments and Ceilings) and will not be affected by this final action.

IV. Final Action

EPA is conditionally approving the West Virginia SIP revisions, the 2012 and 2014 submittals, because West Virginia is committing to submit an additional SIP revision addressing the deficiency identified by EPA, regarding the deletion of the PM_2.5 SMC, within one year of the effective date of EPA's final conditional approval and because the submittals otherwise meet CAA requirements for a PSD permit program in the CAA, its implementing regulations, and the 2008 NSR PM_2.5 Rule as discussed in this rulemaking. Once EPA has determined that West Virginia has satisfied this condition, the conditional approval of the 2012 and 2014 submittals will become a full approval. Should West Virginia fail to meet the condition specified above, the conditional approval of the 2012 and 2014 submittals will convert to a disapproval pursuant to CAA section 110(k)(4).

The full or partial disapproval of a SIP revision triggers the requirement under CAA section 110(c) that EPA promulgate a federal implementation plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. EPA has determined that West Virginia's 2014 submittal has rectified the deficiency regarding including condensables in the definition of regulated NSR pollutant noted in our narrow disapproval in 78 FR 27062. Therefore, with this action, EPA is no longer required to promulgate a FIP to address the issue of PM condensables in the definition of regulated NSR pollutant for West Virginia's PSD permit program, and EPA removes our narrow disapproval of the August 31, 2011 SIP revision to 45CSR14, section 2.66 (for failure to include condensables in definition of regulated NSR pollutant). However, EPA is conditionally approving the 2012 and 2014 submittals due to West Virginia's lack of an appropriate PM_2.5 SMC. If West Virginia fails to meet the condition and this conditional approval becomes a disapproval, the disapproval will trigger the CAA 110(c) requirement for EPA to promulgate a FIP no later than two years from the date of the disapproval which will address the SMC deficiency in West Virginia's PSD permit program.

V. Incorporation by Reference

In this rulemaking action the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of 45CSR14 (Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration) described in the amendments to 40 CFR part 52 set forth below.

The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

VI. Statutory and Executive Order Reviews

A. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 24, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, which conditionally approves two SIP revisions submitted by the WVDEP for the State of West Virginia on July 1, 2014 and June 6, 2012, 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
• Incorporation by reference
• Carbon monoxide
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: June 9, 2015.

William C. Early,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart XX—West Virginia

2. In § 52.2520, the table in paragraph (c) is amended by revising the entries for [45 CSR] Series 14 to read as follows:

§ 52.2520

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Regulations in the West Virginia SIP

State citation [Chapter 16-20 or 45 CSR ]	Title/subject	State effective date	EPA approval date	Additional explanation/ citation at 40 CFR 52.2565
*         *         *         *         *         *         *
[45CSR] Series 14 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration
Section 45-14-1	General	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-2	Definitions	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-3	Applicability	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-4	Ambient Air Quality Increments and Ceilings	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-5	Area Classification	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-6	Prohibition of Dispersion Enhancement Techniques	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-7	Registration, Report and Permit Requirements for Major Stationary Sources and Major Modifications	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-8	Requirements Relating to Control Technology	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-9	Requirements Relating to the Source's Impact on Air Quality	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-10	Modeling Requirements	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-11	Air Quality Monitoring Requirements	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-12	Additional Impacts Analysis Requirements	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-13	Additional Requirements and Variances for Source Impacting Federal Class 1 Areas	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-14	Procedures for Sources Employing Innovative Control Technology	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-15	Exclusions From Increment Consumption	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-16	Specific Exemptions	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-17	Public Review Procedures	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-18	Public Meetings	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-19	Permit Transfer, Cancellation and Responsibility	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-20	Disposition of Permits	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-21	Conflict with Other Permitting Rules	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-25	Actual PALs	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
Section 45-14-26	Inconsistency Between Rules	06/01/2013	06/25/2015, [Insert Federal Register citation]	Conditional Approval. See 40 CFR 52.2522(k).
*         *         *         *         *         *         *

* * * * *

3. Section 52.2522 is amended by revising the section heading and adding paragraph (k) to read as follows:

§ 52.2522

Identification of plan-conditional approval.

* * * * *

(k) EPA is conditionally approving two West Virginia State Implementation Plan (SIP) revisions submitted on July 1, 2014 and June 6, 2012 relating to revisions to 45CSR14 (Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration) for failure to include a significant monitoring concentration value (SMC) of zero micrograms per cubic meter for fine particulate matter (PM_2.5). The conditional approval is based upon a commitment from the State to submit an additional SIP revision with a revised regulation at 45CSR14-16.7.c which will incorporate a SMC value of zero micrograms per cubic meter for PM_2.5 to address this discrepancy and to be consistent with federal requirements. If the State fails to meet its commitment by June 24, 2016, the approval is treated as a disapproval.

Footnotes

1.  The 2008 NSR PM_2.5 Rule (as well as the more general PM_2.5 NAAQS implementation rule, the 2007 “Final Clean Air Fine Particle Implementation Rule” (the 2007 PM_2.5 Implementation Rule)), was the subject of litigation before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Natural Resources Defense Council v. EPA (hereafter, NRDC v. EPA). 706 F.3d 428 (D.C. Cir. 2013). On January 4, 2013, the D.C. Circuit remanded to EPA both the 2007 PM_2.5 Implementation Rule and the 2008 NSR PM_2.5 Rule. The court found that in both rules EPA erred in implementing the 1997 PM_2.5 NAAQS solely pursuant to the general implementation provisions of subpart 1 of part D of Title I of the CAA (subpart 1), rather than pursuant to the additional implementation provisions specific to particulate matter in subpart 4 of part D of Title I (subpart 4). As a result, the D.C. Circuit remanded both rules and instructed EPA “to re-promulgate these rules pursuant to subpart 4 consistent with this opinion.” Although the D.C. Circuit declined to establish a deadline for EPA's response, EPA intends to respond promptly to the court's remand and to promulgate new generally applicable implementation regulations for the PM_2.5 NAAQS in accordance with the requirements of subpart 4. In the interim, however, states and EPA still need to proceed with implementation of the 1997 PM_2.5 NAAQS in a timely and effective fashion in order to meet statutory obligations under the CAA and to assure the protection of public health intended by those NAAQS. As stated in the NPR, the requirements of Subpart 4 only pertain to nonattainment areas, and thus, EPA does not consider the portions of the 2008 NSR PM_2.5 Rule that address requirements for PM_2.5 attainment and unclassifiable areas to be affected by the NRDC v. EPA opinion. Moreover, EPA does not anticipate the need to revise any PSD permitting requirements promulgated in the 2008 NSR PM_2.5 Rule in order to comply with the D.C. Circuit's decision. As this rulemaking addresses West Virginia's PSD regulations, EPA has evaluated the West Virginia regulations with applicable PSD requirements in the CAA, its implementing regulations, and the 2008 NSR PM_2.5 Rule.

2.  West Virginia had completely deleted the 24-hour PM_2.5 SMC value in the revised 45CSR14 provisions included in the 2014 submittal.

3.  West Virginia's letter from the Secretary of WVDEP committing to submit a revised provision in 45CSR14 to address the SMC for PM_2.5 is available in the docket for this rulemaking (EPA-R03-OAR-2015-0028) and available online at www.regulations.gov.