[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Rules and Regulations]
[Pages 2042-2046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-490]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WV026-6012; FRL-6505-1]
Approval and Promulgation of Air Quality Implementation Plans;
Approval Under Section 112(l) of the Clean Air Act; West Virginia;
Permits for Construction, Modification, Relocation and Operation of
Stationary Sources of Air Pollutants
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving in part, and disapproving in part, a State
Implementation Plan (SIP) revision submitted by the State of West
Virginia. This SIP revision changes portions of West Virginia's minor
new source review permit program and establishes new provisions for
permitting existing stationary sources. Specifically, this action
approves in part, and disapproves in part, changes to West Virginia's
minor new source review permit program; and approves West Virginia's
minor new source review and existing stationary source operating permit
program as meeting federal criteria for permit programs that can limit
a source's potential to emit criteria pollutants and hazardous air
pollutants (HAPs).
EFFECTIVE DATE: This final rule is effective on February 14, 2000.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and West Virginia
Department of Environmental Protection, Office of Air Quality, 1558
Washington Street, East, Charleston, West Virginia, 2531.
FOR FURTHER INFORMATION CONTACT: Jennifer M. Abramson, (215) 814-2066
or by e-mail at Abramson.Jennifer@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On February 3, 1998 (63 FR 5484), EPA published a notice of
proposed rulemaking (NPR) regarding West Virginia's minor new source
review and existing stationary source operating permit program. The NPR
proposed approval in part, and disapproval in part, of changes to West
Virginia's minor new source review permit program. Specifically, the
NPR proposed to disapprove a new exemption from minor new source review
for sources that have been issued permits under the State's federally
approved major source operating permit program (developed pursuant to
Title V of the Clean Air Act) as such exemption does not comport with
the federal requirements for scope of 40 CFR 51.160. The NPR also
proposed to disapprove new provisions governing the issuance of
temporary construction or modification permits with only a fifteen day
public comment period as such provisions do not satisfy the federal
requirements for public participation of 40 CFR 51.161(b). The NPR
proposed to approve all other provisions of West Virginia's minor new
source review program under section 110 of the Clean Air Act (the Act)
as a revision to the West Virginia SIP. The formal SIP revision,
submitted by West Virginia on August 26, 1994 applies statewide.
The NPR also proposed to approve West Virginia's minor new source
review and existing stationary source operating permit program under
section 110 of the Act as meeting the criteria set forth in a June 28,
1989 Federal Register document (54 FR 27274) for state permit programs
that can limit a source's potential to emit criteria pollutants. The
NPR also proposed to approve West Virginia's minor new source review
and stationary existing source operating permit program under section
112(l) of the Act as meeting the statutory criteria
[[Page 2043]]
for state permit programs that can limit a source's potential to
emissions HAPs.
Other specific requirements of West Virginia's SIP submittal and
the rationale for EPA's proposed action are explained in the NPR and
will not be restated here.
II. Public Comments Received and EPA's Responses
EPA received comments on the NPR from the West Virginia Office of
Air Quality (WVOAQ) and from the National Environmental Development
Association's Clean Air Regulatory Project (NEDA/CARP), an industry
coalition. These comments and EPA's responses are discussed below. All
comments are contained in the docket at the ADDRESSES section above.
Comment: West Virginia's minor new source review provisions
authorize discretionary issuance by the WVOAQ Chief of temporary
permits for experimental production test runs under an expedited review
and public participation process (a fifteen (15) day public comment
period). WVOAQ believes that such a fast-track process may be
appropriate where a company's vital business interests warrant such an
approval process and where only small emissions increases or very small
emissions of new substances for limited periods of time are involved.
WVOAQ recognizes, however, that some clear, restrictive boundaries and
safeguards need to be adhered to in establishing eligibility and
conditions for such permits and intends to set forth such boundaries
and safeguards via written policy or interpretive rule at some point in
the near future.
EPA Response: EPA agrees that a 30-day public comment period for
some minor new source review permitting actions may be impracticable
and/or unnecessarily burdensome.1 However, as discussed in
the NPR, limitations on the full public participation requirements of
40 CFR 51.161 should be applied consistent with the environmental
significance of the activity. WVOAQ's plan to define restrictive
boundaries and safeguards so that only less environmentally significant
changes are eligible for fast-track processing is one way to link
permit process levels with environmental significance. However, such
criteria must be submitted and approved as a revision to the West
Virginia SIP before the fast-track procedure can be recognized as an
enforceable part of West Virginia's SIP approved minor new source
review program. The WVOAQ has not submitted any such criteria to EPA
for consideration to date. Without a correlation to the environmental
significance of the activity, EPA cannot consider the minimum public
process afforded, fifteen (15) days, to be adequate in all instances.
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\1\ In the past, EPA has explained that section 51.160(e) allows
state programs to vary procedures for, and timing of, public review
in light of the environmental significance of the activity. See 60
FR 45564 (August 31, 1995).
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Comment: NEDA/CARP commented that it is inappropriate and legally
objectionable for EPA to take action on any SIP revision or Clean Air
Act section 112(l) submission on the basis that limits on a source's
potential to emit (PTE) must be federally enforceable. NEDA/CARP
commented that the United States Court of Appeals for the District of
Columbia Circuit vacated the requirement of federal enforceability as
part of the PTE definition for both the new source review rules and the
federal operating permit rules, 40 CFR parts 51, 52, and 70. See
Chemical Manufacturers Association v. EPA, No. 89-1514 (Sept 15, 1995)
(``CMA'') and Clean Air Implementation Project, et. al v. Browner, Civ.
No. 92-1303 (June 28, 1996) (``CAIP''). While the definition was not
vacated as it pertains to sources of hazardous air pollutants (40 CFR
63.2), it nonetheless was remanded to the Environmental Protection
Agency for further rulemaking consistent with the court's directives.
See National Mining Association, et al. v. EPA, 59 F.3d 1351 (D.C. Cir.
1995). As of this date, EPA has not proposed further rulemaking on the
PTE definition for any Clean Air Act programs. NEDA/CARP also believes
that reliance on EPA's June 28, 1989 guidance (54 FR 27274) is
inappropriate after the D.C. Circuit decisions cited above. NEDA/CARP
also commented that it is not clear whether EPA's proposed approval of
West Virginia's submission under section 112(l) of the Act is part of
the SIP action. NEDA/CARP commented that such an action would be
inappropriate.
EPA response: EPA need not interpret the definition of ``potential
to emit'' as requiring federal enforceability in order to approve West
Virginia's minor new source review and existing stationary source
operating permit program under sections 110 and 112(l) of the Act. EPA
recognizes that there may be instances where PTE limits need not be
federally enforceable under federal new source review and federal
operating permit rules in light of the court decisions cited above.
Moreover, although the NMA decision did not vacate the federal
enforceability requirement of the PTE definition under part 63, even
prior to NMA, EPA had indicated in guidance that certain state-
enforceable PTE limits on HAPs may be recognized.2
Nevertheless, EPA policy encourages States to use federally enforceable
mechanisms, such as SIP-approved minor NSR programs, federally
enforceable state operating permit programs (FESOPs) meeting the
requirements of the June 28, 1989 guidance (54 FR 27274), and programs
approved under section 112(l) for the purpose of establishing PTE
limits.3 Accordingly, West Virginia requested EPA approval
of its minor new source review and existing stationary source operating
permit program under sections 110 and 112 of the Act in order to be
able to establish federally enforceable limits on a source's potential
to emit criteria pollutants and HAPs.4 For the reasons
discussed in the NPR, EPA has found that West Virginia's program meets
federal requirements and is now making such approvals.
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\2\ See Memorandum from John Seitz re Options for Limiting the
Potential to Emit (PTE) of a Stationary Source under section 112 and
Title V of the Clean Air Act (January 25, 1995); Memorandum from
John Seitz re Release of Interim Policy on Federal Enforceability of
Limitations on Potential to Emit (January 22, 1996); Memorandum from
John Seitz re Second Extension of January 25, 1995 Potential to Emit
Transition Policy and Clarification of Interim Policy (July 10,
1998).
\3\ See Memorandum from John Seitz re Release of Interim Policy
on Federal Enforceability of Limitations on Potential to Emit
(January 22, 1996).
\4\ West Virginia already had a minor new source review
permitting program approved into its SIP. While permits issued
pursuant to such program are federally enforceable, they are not
specifically recognized as being federally enforceable for purposes
of limiting a source's potential to emit.
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Until EPA promulgates rules establishing otherwise, states may be
able to establish permit programs or other mechanisms that limit
potential to emit and thereby avoid applicability of certain
requirements even if such limits are not federally enforceable, if
those limits are shown to be effective. See NMA, 59 F.3d at 1363. Given
the uncertainty of the final outcome of the requirement for federal
enforceability, however, EPA does not recommend that states postpone
submitting state permit programs for section 110 or 112(l) approval, or
withdraw programs previously approved under such authorities. Sources
with federally enforceable limits on potential emissions will be less
likely to have to apply for revised permits or be subject to major
source requirements should the requirement for federal enforceability
be reinstated or the section 112 transition policy be revoked.
Moreover, it is important to recognize that West Virginia's
regulated
[[Page 2044]]
community may benefit from being able to take limits on potential to
emit that are federally enforceable. Currently, West Virginia's SIP-
approved major non-attainment new source review program requires that
limitations on potential to emit be federally enforceable. Approval of
West Virginia's minor new source review and existing stationary source
operating permit program into the SIP under 110 will allow sources to
continue to rely on minor new source review permits to ``net out'' of
major nonattainment new source review requirements.
With respect to NEDA/CARP's comment that it would be inappropriate
for EPA to approve West Virginia's 112(l) program into the SIP, EPA
wishes to make clear that its approval of West Virginia's submission
under section 112(l) of the Act is separate from EPA's concurrent
approval of the submission under section 110 of the Act as a SIP
revision. The Agency is not approving the 112(l) program into the SIP.
III. Final Action
EPA is approving in part, and disapproving in part, changes to West
Virginia's minor new source review program as a revision to the West
Virginia SIP under section 110 of the Act. EPA is disapproving West
Virginia's exemption of sources with Title V permits from minor new
source review. EPA is also disapproving West Virginia's temporary
permitting procedure. Such provisions do not comport with federal
requirements for state minor new source review programs. At the same
time, EPA is approving all other portions of West Virginia's minor new
source review program as a revision to the West Virginia SIP. This
action approves and makes federally enforceable many of the updates and
improvements from the SIP approved version of West Virginia's minor new
source review program, and at the same time prevents serious
relaxations related to the program's scope and public participation
requirements.
EPA is also approving West Virginia's minor new source review and
existing stationary source operating permit program under sections 110
and 112(l) as meeting federal requirements for limiting a source's
potential to emit criteria pollutants and HAPs. Approval under sections
110 and 112(l) of the Clean Air Act will recognize West Virginia's
minor new source review and existing stationary source operating permit
program as capable of establishing federally enforceable limitations on
criteria pollutants and hazardous air pollutants, respectively. Such
approval will confer federal enforceability status to PTE limitations
in permits issued pursuant to West Virginia's minor new source review
and existing stationary source operating permit program which meet
applicable June 28, 1989 and section 112(l) criteria, including permits
which have been issued prior to EPA's final action.
Accordingly, EPA is revising 40 CFR 52.2520 (Identification of
plan) to reflect EPA's approval action. At the same time, EPA is
revising 40 CFR 52.2522 (Approval status) to announce EPA's disapproval
of the provisions which exempt sources with Title V permits from minor
new source review and which govern the issuance of temporary
construction and modification permits as revisions to the West Virginia
SIP.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This final rule 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, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely approves a state rule
implementing a federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act.'' Thus, the requirements of section 6 of the Executive Order
do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that the EPA determines: (1) Is
``economically significant,'' as defined under Executive Order 12866,
and (2) the environmental health or safety risk addressed by the rule
has a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to Executive Order 13045 because it
is not an economically significant regulatory action as defined by
Executive Order 12866, and it does not address an environmental health
or safety risk that would have a disproportionate effect on children.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to
[[Page 2045]]
develop an effective process permitting elected and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. This action does not involve or impose any
requirements that affect Indian Tribes. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of a flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
This final rule will not have a significant impact on a substantial
number of small entities because EPA's disapproval of the State request
under section 110 and subchapter I, part D of the CAA does not affect
any existing requirements applicable to small entities. Any pre-
existing federal requirements remain in place after this disapproval.
Federal disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, I certify that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
This Federal disapproval action maintains pre-existing Federal
requirements that have been in effect since November 10, 1975.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector result from this action.
G. 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 rule 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical. EPA believes that VCS are inapplicable to this action.
Today's action does not require the public to perform activities
conducive to the use of VCS.
I. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action on West Virginia's minor new source
review and existing stationary source operating permit program must be
filed in the United States Court of Appeals for the appropriate circuit
by March 13, 2000. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule 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 approving in part and disapproving in part revisions to
West Virginia's changes to West Virginia's minor new source review
program under section 110, and approving West Virginia's minor new
source review and existing stationary source operating permit program
under sections 110 and 112(l) of the Clean Air Act for purposes of
limiting potential to emit 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, Intergovernmental relations.
Dated: November 30, 1999.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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. Section 52.2520 is amended by adding paragraph (c)(43) to read
as follows:
Sec. 52.2520 Identification of plan.
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[[Page 2046]]
(c) * * *
(43) Revisions to West Virginia Regulation 45 CSR 13 submitted on
August 26, 1994 by the West Virginia Department of Environmental
Protection.
(I) Incorporation by reference.
(A) Letter of August 26, 1994 from the West Virginia Department of
Environmental Protection transmitting 45 CSR 13 ``Permits for
Construction, Modification, Relocation and Operation of Stationary
Sources of Air Pollutants, Notification Requirements, Temporary
Permits, General Permits, and Procedures for Evaluation''.
(B) Revised version of 45 CSR 13 ``Permits for Construction,
Modification, Relocation and Operation of Stationary Sources of Air
Pollutants, Notification Requirements, Temporary Permits, General
Permits, and Procedures for Evaluation'', sections: 1 except for the
reference in subsection 1.1 to major stationary sources which have not
been issued a permit pursuant to 45 CSR 30, 2-8, 10, 11 except for
subsection 11.2, and Tables 45-13A and 45-13B, effective April 27,
1994.
(ii) Additional Material.
(A) Remainder of August 26, 1994 State submittal pertaining to 45
CSR 13, ``Permits for Construction, Modification, Relocation and
Operation of Stationary Sources of Air Pollutants, Notification
Requirements, Temporary Permits, General Permits, and Procedures for
Evaluation''.
(B) Letter of September 5, 1996 from the West Virginia Office of
Air Quality requesting EPA approval of 45 CSR 13 under 112(l) of the
Clean Air Act, and clarifying that the definition of ``major stationary
source'' in 45 CSR 13 will be interpreted consistently with the 45 CSR
14 and 45 CSR 19 programs as to the types of source categories which
need to include fugitive emissions.
3. Section 52.2522 is amended by adding paragraph (h) to read as
follows:
Sec. 52.2522 Approval status.
* * * * *
(h) EPA disapproves the portion of 45 CSR 13 subsection 1
referencing major stationary sources which have not been issued a
permit pursuant to 45 CSR 30 and section 11.2, submitted by the West
Virginia Department of Environmental Protection on August 26, 1994, as
revisions to the West Virginia SIP. These provisions do not meet the
requirements of 40 CFR 51.160 for scope. EPA also disapproves 45 CSR 13
section 9, submitted by the West Virginia Department of Environmental
Protection on August 26, 1994, as a revision to the West Virginia SIP.
These provisions do not meet the requirements of 40 CFR 51.161 for
public participation.
[FR Doc. 00-490 Filed 1-12-00; 8:45 am]
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