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[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Rules and Regulations]
[Pages 27062-27065]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10935]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0113; FRL-9810-7]

Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving a narrow portion of a State Implementation 
Plan (SIP) revision submitted by the State of West Virginia on August 
31, 2011. EPA is taking this final action because the

[[Page 27063]]

submittal does not satisfy the Federal requirement for inclusion of 
condensable emissions of particulate matter (condensables) within the 
definition of ``regulated new source review (NSR) pollutant'' for fine 
particulate matter (PM2.5) and particulate matter emissions 
less than or equal to ten micrometers in diameter (PM10). In 
addition, because West Virginia's August 31, 2011 SIP revision does not 
adequately account for condensable emissions within the definition of 
``regulated NSR pollutant,'' EPA is also disapproving specific 
Prevention of Significant Deterioration (PSD) portions of related 
infrastructure SIP submissions required by the Clean Air Act (CAA) to 
implement, maintain, and enforce the 1997 fine particulate matter 
(PM2.5) and ozone National Ambient Air Quality Standards 
(NAAQS), the 2006 PM2.5 NAAQS, and the 2008 lead and ozone 
NAAQS. This action is being taken under the CAA.

DATES: This final rule is effective on June 10, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0113. 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: Mike Gordon, (215) 814-2039, or by 
email at gordon.mike@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    EPA granted full approval of West Virginia's August 2011 SIP 
submission and the PSD portions of related infrastructure submissions 
required by the CAA on October 17, 2012 (77 FR 63736) but took no 
action on the narrow issue of the requirement to include condensable 
emissions in the definition of ``regulated NSR pollutant'' in the 
State's PSD program for PM2.5 and PM10. EPA has 
subsequently determined that the omission of condensables from this 
definition in the state's regulation at 45CSR14 is cause for 
disapproval of that narrow portion of the SIP submittal and the related 
infrastructure submissions.
    As a result of this omission, on March 15, 2013 (78 FR 16449), EPA 
proposed disapproval of a narrow portion of the August 2011 SIP 
revision, as well as specific PSD portions of related infrastructure 
submissions required by the CAA to implement, maintain, and enforce the 
1997 PM2.5 and ozone NAAQS, the 2006 PM2.5 NAAQS, 
and the 2008 lead and ozone NAAQS. A full discussion on the background 
of this action and other related actions are available in the NPR. No 
comments were received during the public comment period.

II. Summary of SIP Revision

    This action disapproves the remaining narrow portion of the August 
2011 SIP submission in which EPA took no action in the October 17, 2012 
final rule, specifically, the requirement to include condensables in 
the definition of ``regulated NSR pollutant.'' Also, because 
condensables must be included in a PSD program by CAA section 
110(a)(2)(C), (D)(i)(II) and (J), EPA is disapproving specific PSD 
portions of related infrastructure submissions which are necessary to 
implement, maintain, and enforce the 1997 PM2.5 and ozone 
NAAQS, the 2006 PM2.5 NAAQS, and the 2008 lead and ozone 
NAAQS.

III. Final Action

    EPA is disapproving the narrow portion of West Virginia's August 
2011 SIP submission related to the failure to include condensables in 
the definition of ``regulated NSR pollutant'' for PM2.5 and 
PM10. EPA is disapproving this narrow portion of West 
Virginia's August 2011 SIP submission because the definition does not 
satisfy the requirement that PM2.5 and PM10 
emissions must include gaseous emissions which condense to form 
particulate matter at ambient temperatures. Because these grounds for 
disapproval are narrow and extend only to the lack of condensables 
within the definition of ``regulated NSR pollutant'', this disapproval 
does not alter EPA's October 17, 2012 approval of the remaining 
portions of West Virginia's August 2011 SIP submittal.
    Additionally, EPA is disapproving specific portions of West 
Virginia's infrastructure SIP submissions dated December 3, 2007, 
December 11, 2007, April 3, 2008, October 1, 2009, October 26, 2011, 
and February 17, 2012 (collectively, the West Virginia infrastructure 
SIP submissions) which address certain obligations set forth at CAA 
sections 110(a)(2)(C), (D)(i)(II) and (J) relating to the West Virginia 
PSD permit program. Because West Virginia's definition of ``regulated 
NSR pollutant'' in 45CSR14 does not include condensable particulate 
emissions, EPA is determining that West Virginia's infrastructure SIP 
submissions do not meet certain statutory and regulatory obligations 
relating to a PSD permit program set forth at CAA sections 
110(a)(2)(C), (D)(i)(II) and (J). EPA is disapproving the narrow 
portion of the October 26, 2011 and February 17, 2012 infrastructure 
SIP submissions from West Virginia because West Virginia has not met 
its obligations relating to the PSD permit program pursuant to CAA 
section 110(a)(2)(C), (D)(i)(II), and (J) due to the failure to include 
condensables in the definition of ``regulated NSR pollutant.'' EPA is 
also disapproving the narrow portions of the December 3, 2007, December 
11, 2007, April 3, 2008, and October 1, 2009 infrastructure SIP 
submissions from West Virginia because West Virginia has not met its 
obligations relating to the PSD permit program pursuant to CAA section 
110(a)(2)(D)(i)(II) for the 1997 PM2.5 and ozone NAAQS and 
the 2006 PM2.5 NAAQS due to the failure to include 
condensables in the definition of ``regulated NSR pollutant.'' Specific 
infrastructure elements which EPA is disapproving and their submittal 
dates are listed in the following table.

----------------------------------------------------------------------------------------------------------------
                                                                  Infrastructure element(s) disapproved in this
        Submittal dates                      NAAQS                                   action
----------------------------------------------------------------------------------------------------------------
December 11, 2007..............  1997 PM2.5...................  110(a)(2)(D)(i)(II).
April 3, 2008
December 3, 2007...............  1997 ozone...................  110(a)(2)(D)(i)(II).
December 11, 2007
October 1, 2009................  2006 PM2.5...................  110(a)(2)(D)(i)(II).

[[Page 27064]]

 
October 26, 2011...............  2008 lead....................  110(a)(2)(D)(i)(II), (C), and (J).
February 17, 2012..............  2008 ozone...................  110(a)(2)(D)(i)(II), (C), and (J).
----------------------------------------------------------------------------------------------------------------

    Under CAA section 179(a), final disapproval of a submission that 
addresses a requirement of a Part D Plan (CAA sections 171-193), or is 
required in response to a finding of substantial inadequacy as 
described in CAA section 110(k)(5) starts a sanction clock. The 
specific provisions in the submissions EPA is disapproving, due to the 
omission of condensables in the definition of ``regulated NSR 
pollutant'', were not submitted by West Virginia to meet either of 
those requirements. Therefore, this disapproval does not trigger 
sanctions under CAA section 179.
    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. From discussions with West 
Virginia, EPA anticipates that the State will make a submission 
rectifying the deficiency regarding condensables. Further, EPA 
anticipates acting on West Virginia's submissions within the two year 
time frame prior to our FIP obligation on this very narrow issue. In 
the interim, EPA expects the State to account for condensables in 
emissions of PM2.5 and PM10 consistent with 
Federal regulations for PSD permitting.

IV. 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. In this case, EPA 
disapproving a narrow portion of the West Virginia August 2011 SIP 
submittal and PSD portions of other related infrastructure submissions 
required by the CAA that do not meet Federal requirements. 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 action does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because this rule to disapprove a narrow provision in the August 2011 
SIP submission and to disapprove narrow portions related to the 
definition of ``regulated NSR pollutant'' in the West Virginia 
infrastructure SIP submissions is not approved to apply in Indian 
country located in the state, and EPA notes that this action 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 July 8, 2013. 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 disapproving a narrow portion of the August 2011 
West Virginia SIP submissions and certain PSD related infrastructure 
submissions 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, Lead, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 25, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

[[Page 27065]]

Subpart XX--West Virginia

0
2. In Sec.  52.2522, paragraph (j) is added to read as follows.

Sec.  52.2522  Approval status.

* * * * *
    (j)(1) EPA is disapproving a narrow portion of West Virginia's 
August 31, 2011 submittal because it does not satisfy the requirement 
that emissions of PM2.5 and PM10 shall include 
gaseous emissions which condense to form particulate matter at ambient 
temperatures. This disapproval extends only to the lack of condensable 
emissions within the definition of ``regulated NSR pollutant,'' found 
at 45CSR14 section 2.66, and does not alter EPA's October 17, 2012 (77 
FR 63736) approval of the remaining portions of West Virginia's August 
2011 SIP submittal.
    (2) EPA is disapproving specific portions of West Virginia's 
infrastructure SIP submissions dated December 3, 2007, December 11, 
2007, April 3, 2008, October 1, 2009, October 26, 2011, and February 
17, 2012 which address certain obligations set forth at CAA sections 
110(a)(2)(C), (D)(i)(II) and (J) relating to the West Virginia PSD 
permit program. Because West Virginia's definition of ``regulated NSR 
pollutant'' in 45CSR14 does not address condensables for 
PM2.5 and PM10 emissions, EPA is determining that 
West Virginia's infrastructure SIP submissions do not meet certain 
statutory and regulatory obligations relating to a PSD permit program 
set forth at CAA sections 110(a)(2)(C), (D)(i)(II) and (J) for the 
narrow issue of condensables as set forth in the following table.

----------------------------------------------------------------------------------------------------------------
                                                                  Infrastructure element(s) disapproved in this
        Submittal dates                      NAAQS                                   action
----------------------------------------------------------------------------------------------------------------
December 11, 2007; April 3,      1997 PM2.5...................  110(a)(2)(D)(i)(II).
 2008.
December 3, 2007; December 11,   1997 ozone...................  110(a)(2)(D)(i)(II).
 2007.
October 1, 2009................  2006 PM2.5...................  110(a)(2)(D)(i)(II).
October 26, 2011...............  2008 lead....................  110(a)(2)(D)(i)(II), (C), and (J).
February 17, 2012..............  2008 ozone...................  110(a)(2)(D)(i)(II), (C), and (J).
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[FR Doc. 2013-10935 Filed 5-8-13; 8:45 am]
BILLING CODE 6560-50-P
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