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[Federal Register Volume 83, Number 167 (Tuesday, August 28, 2018)]
[Proposed Rules]
[Pages 43836-43841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18524]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0633; FRL-9982-79--Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Revisions to Regulation for Control of Ozone Season 
Nitrogen Oxide Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve two state implementation plan (SIP) revisions submitted by the 
State of West Virginia. The revisions pertain to a West Virginia 
regulation that established the nitrogen oxides (NOX) ozone 
season trading program under the Clean Air Interstate Rule (CAIR), 
which implemented requirements for NOX reductions necessary 
to reduce interstate transport of pollution. The EPA-administered 
trading programs under CAIR were discontinued upon the implementation 
of the Cross-State Air Pollution Rule (CSAPR), which was promulgated by 
EPA to replace CAIR. CSAPR established federal implementation plans 
(FIPs) for 28 states, including West Virginia, and applied to electric 
generating units (EGUs) as defined. The SIP submittals are comprised of 
revisions to the West Virginia regulation that implemented the CAIR 
ozone season NOX trading program and that had previously 
been included in the West Virginia SIP. The revised West Virginia 
regulation removed the CAIR ozone season NOX trading program 
provisions, which also addressed certain large non-electric generating 
units (non-EGUs), established new requirements for these large non-
EGUs, included a state-wide NOX emissions cap, and 
recodified certain other provisions that address the NOX 
emission reductions required for cement kilns and internal combustion 
engines. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 27, 
2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017- 0633 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the ``For Further Information Contact'' section. For the 
full EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On July 13, 2016, the State of West 
Virginia, through the West Virginia Department of Environmental 
Protection (WVDEP), submitted a revised version of West Virginia 
Regulation 45CSR40--Control of Ozone Season Nitrogen Oxides Emissions 
for inclusion in the West Virginia SIP. The revised 45CSR40 made the 
following changes--(1) removed the provisions that implemented the CAIR 
ozone season trading program, (2) added new requirements to address the 
NOX reduction obligations for non-EGUs in the State that 
were trading under the CAIR ozone season trading program but are no 
longer part of a trading program, and (3) recodified the requirements 
that applied to cement kilns and internal combustion engines. On 
October 13, 2017, WVDEP provided a supplemental SIP submission 
comprised of a demonstration showing that NOX emissions from 
applicable non-EGUs do not exceed the West Virginia NOX 
budget under the NOX SIP Call.

I. Background

    On October 27, 1998 (63 FR 57356), EPA finalized the ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone''--commonly called the NOX SIP Call. The

[[Page 43837]]

NOX SIP Call was designed to mitigate significant transport 
of NOX, one of the precursors of ozone. EPA developed the 
NOX Budget Trading Program, an allowance trading program 
that states could adopt to meet their obligations under the 
NOX SIP Call. The NOX Budget Trading Program 
allowed EGUs greater than 25 megawatts and industrial non-electric 
generating units, such as boilers and turbines, with a rated heat input 
greater than 250 million British thermal units per hour (MMBtu/hr), 
referred to as ``large non-EGUs'', to participate in a regional 
NOX cap and trade program. The NOX SIP call also 
established NOX reduction requirements for other non-EGUs, 
including cement kilns and stationary internal combustion (IC) engines. 
EPA has implementing regulations for the NOX SIP Call at 40 
CFR 51.121.
    On May 12, 2005, 70 FR 25162, EPA promulgated CAIR to address 
transported emissions that significantly contributed to downwind 
states' nonattainment and maintenance of the 1997 ozone and fine 
particulate matter (PM2.5) national ambient air quality 
standards (NAAQS). CAIR required 28 states, including West Virginia, to 
reduce emissions of NOX and sulfur dioxide (SO2), 
which are precursors to ozone and PM2.5. Under CAIR, EPA 
established separate cap and trade programs for annual NOX, 
ozone season NOX, and annual SO2 emissions. On 
April 28, 2006 (71 FR 25328), EPA also promulgated FIPs requiring the 
EGUs in each affected state, but not large non-EGUs, to participate in 
the CAIR trading programs. States could comply with the requirements of 
CAIR by either remaining on the FIP, which applied only to EGUs, or by 
submitting a CAIR SIP revision that included as trading sources EGUs 
and the non-EGUs that formerly traded in the NOX Budget 
Trading Program under the NOX SIP Call. EPA discontinued 
administration of the NOX Budget Trading Program in 2009 
upon the start of the CAIR trading programs.\1\ The NOX SIP 
Call requirements continued to apply, however, and EGUs that were 
formerly trading under the NOX Budget Trading Program 
continued to meet their NOX SIP Call requirements under the 
generally more stringent requirements of the CAIR ozone season trading 
program. Large non-EGUs that were trading under the NOX 
Budget Trading Program were not addressed in the CAIR FIPs. States 
therefore needed to assess their NOX SIP Call requirements 
and take other regulatory action as necessary to ensure that their 
obligations for the large non-EGUs continued to be met. Under CAIR, 
states had the option to include the non-EGUs as trading participants 
in the regional CAIR ozone season trading program either through a full 
CAIR SIP or through an abbreviated CAIR SIP. In either of these 
options, expansion of the applicability to include the non-EGUs and 
increasing the ozone season NOX budget by the amount of the 
non-EGU budget in 40 CFR part 97 Appendix C of Subpart E effected 
inclusion of the non-EGUs into the trading program. Otherwise, states 
needed to assess their NOX SIP Call requirements and take 
other regulatory action as necessary to ensure that their obligations 
for these units continued to be met. West Virginia chose to include the 
non-EGUs as CAIR trading sources, and submitted, for inclusion in the 
SIP Regulation 45CSR40 which consisted of provisions that implemented 
the CAIR NOX ozone season trading program, included the 
large non-EGUs as trading sources, and also included emission reduction 
requirements for certain non-trading non-EGUs (cement kilns and IC 
engines) that were subject to the NOX SIP Call. EPA approved 
Regulation 45CSR 40 into the West Virginia SIP on August 4, 2009 (74 FR 
38536).
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    \1\ CAIR was subsequently vacated and remanded. See North 
Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008), modified by 550 F.3d 
1176 (remanding CAIR). CAIR was replaced with the Cross-State Air 
Pollution Rule, or CSAPR (76 FR 48208, August 8, 2011), which, after 
legal challenges, was implemented starting in January 2015. The 
NOX Ozone Season Trading Program under CSAPR was replaced 
in West Virginia and most other states by a new trading program for 
ozone season NOX under the CSAPR Update rule in January 
2017 (81 FR 74504, October 26, 2016).
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    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008,\2\ but 
ultimately remanded the rule to EPA without vacatur to preserve the 
environmental benefits provided by CAIR.\3\ The ruling allowed CAIR to 
remain in effect temporarily until a replacement rule consistent with 
the Court's opinion was developed. While EPA worked on developing a 
replacement rule, the CAIR program continued as planned with the 
NOX annual and ozone season programs beginning in 2009 and 
the SO2 annual program beginning in 2010.
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    \2\ North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008).
    \3\ North Carolina v. EPA, 550 F.3d 1176 (DC Cir. 2008).
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    On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's 
remand, EPA promulgated CSAPR to replace CAIR and to address the 
interstate transport of emissions contributing to nonattainment and 
interfering with maintenance of the two air quality standards covered 
by CAIR as well as the 2006 PM2.5 NAAQS. The rule also 
contained provisions that would sunset CAIR-related obligations on a 
schedule coordinated with the implementation of CSAPR compliance 
requirements. CSAPR was to become effective January 1, 2012; however, 
the timing of CSAPR's implementation was delayed by litigation, and EPA 
began implementing CSAPR on January 1, 2015.
    Starting in January 2015, the CSAPR FIP trading programs for annual 
NOX, ozone season NOX and annual SO2 
were applicable in West Virginia. Thus, since January 1, 2015, the 
provisions related to implementation of the CAIR ozone season trading 
program in West Virginia regulation 45CSR40 have become obsolete. The 
CSAPR FIP trading programs applied only to EGUs and, unlike CAIR, did 
not provide for expansion of the ozone season trading program to 
include the NOX SIP Call non-EGUs. States, like West 
Virginia, whose non-EGUs had previously traded in the CAIR ozone season 
trading program, were therefore required to address the non-EGU 
reduction requirements of the NOX SIP Call outside of a 
regional trading program.\4\
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    \4\ Subsequent to West Virginia's July 13, 2016 submission, EPA 
finalized the CSAPR Update Rule to address transport related to the 
2008 ozone NAAQS. It is noted that CSAPR Update included flexibility 
for states to submit SIPs that expand the CSAPR ozone season trading 
program to include the large non-EGUs.
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    On October 26, 2016 (81 FR 74504), EPA finalized the CSAPR Update 
Rule to address interstate transport of ozone pollution with respect to 
the 2008 ozone NAAQS, and issued FIPs that updated the ozone season 
NOX budgets for 22 states, including West Virginia. Starting 
in January 2017, the CSAPR Update budgets were implemented via 
establishment of a new CSAPR NOX ozone season allowance 
trading program that was established under the original CSAPR. The 
CSAPR Update Rule reinstates the option for States to allow non-EGUs to 
participate in a regional trading program. States wishing to do this 
can at any time submit a SIP revision that expands the CSAPR Ozone 
Season NOX budget and applicability to include large non-
EGUs.

II. Summary of SIP Revision and EPA Analysis

    Regulation 45CSR40 was originally adopted by WVDEP to implement the 
ozone season trading program under CAIR, which included as CAIR trading 
sources EGUs and the non-EGUs that had formerly been trading under the 
NOX SIP Call trading program. As noted previously, WVDEP 
consolidated all the

[[Page 43838]]

NOX SIP Call and CAIR ozone season requirements into 
45CSR40, including the requirements that apply to stationary IC engines 
and cement manufacturing kilns. The CSAPR FIPs which replaced CAIR only 
applied to EGUs, and, at the time West Virginia developed its SIP 
submittal, states did not have an option under CSAPR to bring their 
non-EGUs into the CSAPR NOX Ozone Season Trading Program. 
So, while EGU compliance with CSAPR satisfied their NOX SIP 
Call requirements, West Virginia needed to modify its ozone season 
NOX regulation to address the NOX SIP Call 
requirements for the large non-EGUs that were formerly trading in the 
CAIR NOX ozone season trading program. 40 CFR 51.121(f) sets 
forth alternatives for states to address NOX SIP Call 
reduction obligations for non-EGUs including (1) imposing a 
NOX mass emissions cap on each source, (2) imposing a 
NOX emissions rate limit on each source and assuming maximum 
operating capacity for every such source for purposes of estimating 
NOX mass emissions, or (3) imposing other regulatory 
requirements that the state has demonstrated to EPA provide equivalent 
or greater assurance that the state will comply with its ozone season 
NOX budget.
    The July 13, 2016 West Virginia SIP submittal includes a modified 
45CSR40 which removed the CAIR ozone season trading program provisions, 
retained the definitions, applicability, and other provisions 
responding to the NOX SIP Call, added new requirements to 
address its NOX SIP Call obligations for sources that were 
trading under CAIR but are no longer part of a trading program, and 
retained and recodified the limits on NOX emissions that 
applied to stationary IC engines and cement kilns previously in the 
former version of 45CSR40 (with a State effective date of May 1, 2008) 
which EPA had included in the West Virginia SIP.

Removal of CAIR Ozone Season Trading Program Requirements

    Former Regulation 45CSR40 (State effective date of May 1, 2008), 
which was approved into the West Virginia SIP, was originally adopted 
by WVDEP to implement the ozone season trading program under CAIR and 
to address NOX SIP Call requirements. The July 13, 2016 SIP 
submission (with revised 45CSR40, effective in West Virginia on July 1, 
2016) removed all the requirements in sections 1 through 75 that 
pertained to the CAIR ozone season trading program, but retained the 
general provisions, definitions (including references to continuous 
emissions monitoring under 40 CFR part 75, subpart H), and 
applicability provisions that applied to the West Virginia regulated 
sources under the NOX SIP Call. As the CAIR trading program 
has been replaced by the trading programs under CSAPR, as described 
previously, these revisions removing references to CAIR are approvable 
for CAA 110(l) as the provisions related to CAIR were moot as CAIR was 
replaced by CSAPR and thus CAIR no longer yielded reductions in 
pollutants nor presently applied to any sources. In addition, sources 
formerly subject to CAIR are now subject to the more stringent 
NOX and SO2 provisions of CSAPR to which the EGU 
sources in West Virginia are subject via a FIP. See 81 FR 74504.

Requirements for Non-EGUs Subject to the NOX SIP Call Formerly Trading 
Under CAIR

    New sections 4 through 8 of 45CSR40 (effective July 1, 2016) 
established new ozone season NOX requirements for the large 
non-EGUs that were formerly trading in the CAIR NOX ozone 
season trading program. These requirements are summarized as follows:
    Section 4--Applicability requires the owner or operator of a unit 
that has a maximum heat input greater than 250 MMBtu/hr to comply with 
the ozone season NOX emission limits, monitoring, 
recordkeeping, and reporting requirements established in sections 5 and 
6 of 45CSR40. This section also specifically excludes any unit that is 
already subject to the federal CSAPR NOX Ozone Season 
Trading Program via a FIP.
    Section 5--Ozone Season NOX Emission Limitation requires that an 
owner or operator of affected units (see section 4) limit ozone season 
NOX emissions pursuant to specific limits established in a 
permit issued under West Virginia regulations 45CSR13, 45CSR14, or 
45CSR19, or under a consent order issued by the State, including any 
limits on operating time during the ozone season.
    Section 6--Monitoring, Recordkeeping and Reporting Requirements 
requires continuous emissions monitoring, reporting, and recording in 
accordance with 40 CFR part 75, subpart H for the non-EGUs to be used 
to determine compliance with the requirements in section 5.
    Section 7--Violation establishes enforcement provisions in the 
event a unit emits in excess of its ozone season NOX 
emission limitations established via section 5.
    Section 8--Ozone Season NOX Budget Demonstration establishes a 
NOX ozone season budget of 2,184 tons for all applicable 
units in the State. Subsection 8.2 requires submittal to EPA of a 
demonstration showing that the sum of NOX emissions from all 
affected units does not exceed the ozone season NOX budget, 
based on each unit's permitted limits or consent order limits operating 
at maximum capacity (or at the operational limit if required in the 
permit or consent order). Subsection 8.3 requires that whenever a new 
unit meets the applicability requirements under section 4, the 
demonstration is required to be revised to show continuing compliance 
with the statewide NOX budget.
    The July 13, 2016 SIP revision submittal did not include the 
demonstration required under section 8.2 of 45CSR40. On October 11, 
2017, WVDEP submitted a supplemental SIP revision consisting of such 
demonstration showing that total ozone season emissions from large non-
EGUs in the State subject to the NOX SIP Call do not exceed 
the West Virginia non-EGU ozone season trading budget of 2,184 tons.\5\ 
The demonstration identifies seven sources that meet the applicability 
criteria for large non-EGUs subject to NOX SIP Call 
requirements. Table 1 in this proposed rulemaking shows that with these 
limits at maximum operating capacity, or at permitted operating time 
restrictions if applicable, the total NOX emissions from 
these sources subject to the NOX SIP Call are 941 tons, 
which is less than 50 percent of the West Virginia ozone season 
NOX budget of 2,184 tons.
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    \5\ See 40 CFR part 97, Appendix C of Subpart E for non-EGU 
trading budgets for affected states.

[[Page 43839]]

                                     Table 1--Total Ozone Season NOX Emissions From Large Non-EGUs in West Virginia
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Maximum design   Ozone season
                 Source                         Units (boiler #)          heat input    operating time       NOX emission rate limit       Ozone season
                                                                          (mmBtu/hr)         (hrs)                                           emissions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appalachian Power Company, John E Amos..  AUX1                                     642             876  0.20 lb/mmBtu...................              56
                                          AUX3                                     600             876  0.20 lb/mmBtu...................              53
Appalachian Power Company, Mountaineer..  AUX1                                     600             876  99.67 pounds per hour (lb/hr)...              44
                                          AUX2                                     600             876  99.67 lb/hr.....................              44
Westlake Chemical, Natrium..............  5                                        999           3,672  0.16 lb/mmBtu...................             293
Chemours Company, Belle.................  10                                       275           3,672  0.20 lb/mmBtu...................             101
Kentucky Power Company, Mitchell........  AUX1                                     663             876  99.45 lb/hr.....................              44
Union Carbide...........................  16                                       350           3,672  .036 lb/mmBtu...................              23
Corporation, Institute..................  17                                       350           3,672  .036 lb/mmBtu...................              23
Union Carbide Corporation, South          26                                       352           3,672  70.4 lb/hr......................             130
 Charleston.
                                          27                                       353           3,672  70.6 lb/hr......................             130
                                         ---------------------------------------------------------------------------------------------------------------
    Total Ozone Season NOX (tons).......  ............................  ..............  ..............  ................................             941
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The October 11, 2017 West Virginia supplemental SIP submission of 
an initial demonstration shows that total ozone season NOX 
emissions from non-EGUs in the State that are subject to the 
NOX SIP Call do not exceed the West Virginia ozone season 
budget of 2,184 tons for non-EGUs that the State established in its SIP 
in 2002 responding to the NOX SIP Call.\6\ The maximum 
potential ozone season NOX emissions of 941 tons based on 
permit limits shown in Table 1 for Appalachian Power, Westlake 
Chemical, Kentucky Power, and Union Carbide and the Consent Order 
limits for Chemours is less than 50 percent of the total West Virginia 
NOX budget and leaves 1,245 tons in the budget available for 
new units which may at a later date become subject to NOX 
SIP Call requirements. Whenever a new unit that meets the applicability 
of section 4.1 (and thus is also subject to the NOX SIP 
Call) commences operation or an existing unit becomes newly applicable, 
West Virginia is required under subsection 8.3 of 45CSR40 to submit a 
revised demonstration to EPA that shows continuing compliance with the 
state-wide emissions cap of 2,184 tons. EPA finds West Virginia's 
revised provisions in 45CSR40 meet requirements for NOX SIP 
Call in CAA (including section 110) and 40 CFR 51.121 for the large non 
EGUs.
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    \6\ See 67 FR 31733, 31735 (May 10, 2002). EPA notes that the 
non-EGU budget amount adopted by West Virginia in its NOX 
Budget Trading Program regulations matches the budget amount 
separately established for the state's non-EGUs under a different 
federal rule promulgated contemporaneously with the NOX 
SIP Call pursuant to CAA section 126. See 40 CFR part 97, subpart E, 
appendix C.
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Recodification of Previously SIP-Approved Provisions

    The previously SIP-approved section 90 of 45CSR40 (effective 200x) 
entitled Ozone Season NOX Reduction Requirements for Stationary 
Internal Combustion Engines has been recodified as section 9. Other 
than revisions to cross referencing necessitated by the recodification 
and removal of references to the CAIR program, the provisions in 
section 9 which were formerly in section 90 are unchanged and include 
the same ozone season NOX caps for affected sources and 
compliance requirements including a compliance plan, monitoring, 
recordkeeping, and reporting requirements for IC engines as was in the 
regulation when EPA previously approved 45CSR40 for the West Virginia 
SIP.
    Similarly, section 100 of 45CSR40 entitled Ozone Season NOX 
Reduction Requirements for Emissions of NOX from Cement Manufacturing 
Kilns has been recodified as section 10. Other than revisions to cross 
referencing necessitated by the recodification, the provisions in 
section 10 which were formerly in section 100 for cement kilns are 
unchanged and include the same requirements for specific controls (or 
reductions equivalent to that achieved by the control) and compliance 
plan requirements, and monitoring, recordkeeping, and reporting 
requirements for cement kilns as was in the regulation when EPA 
previously approved 45CSR40 for the West Virginia SIP.
    The changes West Virginia has made to 45CSR40 are approvable under 
CAA section 110 because--(1) CAIR has been replaced by CSAPR and thus 
removal of CAIR provisions is appropriate; (2) the applicability 
provisions at section 4.1 of 45CSR40 cover all existing and new 
NOX SIP Call non-EGUs not subject to the current CSAPR 
trading program for ozone season NOX emissions; (3) the 
enforceable cap on collective ozone season NOX emissions 
from covered non-EGUs in section 8.1 of the State's rule does not 
exceed the non-EGU emissions budget adopted by West Virginia in its SIP 
responding to the NOX SIP Call and identified in 40 CFR part 
97, subpart E, appendix C.; (4) monitoring, recordkeeping and reporting 
in accordance with 40 CFR part 75 continue to be required for the non-
EGUs; (5) the cement kiln and IC engine provisions are identical to 
requirements previously applicable to such sources in the West Virginia 
SIP and are merely recodified; and (6) the revised 45CSR40 generally 
addresses the requirements for large non-EGUs for the NOX 
SIP Call pursuant to 40 CFR 51.121. The SIP revision addresses 
provisions in CAA section 110(l) for revisions to a state's SIP because 
it maintains the NOX ozone season budget originally 
established under the NOX SIP Call and in the West Virginia 
SIP, removes the obsolete CAIR provisions, and recodifies other 
provisions maintaining requirements already in the SIP for cement kilns 
and IC engines. Thus, EPA does not expect any emission increases, or 
interference with attainment or maintenance of the NAAQS, reasonable 
further progress or any other CAA requirements.
    On February 8, 2018, WVDEP provided a letter clarifying a provision 
in the July 13, 2016 SIP submittal. The letter is available in the 
docket for this rulemaking and is available on www.regulations.gov. 
Specifically, subsection 4.1 of 45CSR40, which sets forth applicability 
provisions, exempted any unit that is already subject to the CSAPR 
NOX Ozone Season Trading

[[Page 43840]]

program under 40 CFR part 97 Subpart BBBBB. The letter explains that 
when West Virginia revised regulation 45CSR40, it cited to the CSAPR 
NOX Ozone Season Trading Program that was in effect at the 
time the rule was finalized. Subsequent to WVDEP's submission of the 
SIP revision in 2016, EPA finalized an update to CSAPR that removed 
EGUs in West Virginia from the original CSAPR trading program for ozone 
season NOX emissions at 40 CFR part 97, subpart BBBBB and 
instead made the state's EGUs subject to the new CSAPR NOX 
Ozone Season Group 2 Trading Program at 40 CFR part 97, subpart EEEEE. 
The February 8, 2018 letter clarifies that the West Virginia regulation 
was intended to refer to current provisions of CSAPR, and thus is 
intended to refer to the updated CSAPR provisions. The letter states 
that West Virginia will work towards revising 45CSR40 as expeditiously 
as possible to conform the regulation to refer to currently enforceable 
CSAPR provisions and will submit the revised 45CSR40 as a SIP revision 
to EPA for approval once the regulation correctly refers to 40 CFR part 
97, subpart EEEEE.\7\ EPA finds 45CSR40 approvable for the West 
Virginia SIP (despite this inadvertent incorrect citation to CSAPR 
using subpart BBBBB in lieu of subpart EEEEE) as the revised regulation 
addresses CAA requirements in section 110 and 40 CFR 51.121 for the 
NOX SIP Call and for units subject to the NOX SIP 
Call as discussed specifically above and because West Virginia 
clarified its intent to refer specifically to provisions of CSAPR 
presently enforceable and its intent to address the minor citation 
cross reference expeditiously with a future SIP revision submittal.
---------------------------------------------------------------------------

    \7\ West Virginia has drafted the revision to 45CSR40 that 
corrects the reference to CSAPR, and expects to finalize the 
revision in its 2019 legislative session.
---------------------------------------------------------------------------

III. Proposed Action

    EPA's review of this material indicates the July 13, 2016 SIP 
revision submittal as supplemented on October 11, 2017 and clarified on 
February 8, 2018 is approvable. The 2016 SIP submission as amended by 
the 2017 submission and clarified on February 8, 2018, requests EPA 
include the amended version of 45CSR40 in the West Virginia SIP. 
Amended regulation 45CSR40 removes the moot provisions that implemented 
the CAIR NOX Ozone Season Trading Program, establishes new 
requirements to address the NOX SIP Call obligations for 
large non-EGUs in the State that were trading under CAIR but are no 
longer part of a trading program, establishes an enforceable statewide 
cap on ozone season NOX emissions for these non-EGUs in 
accordance with West Virginia's state budget under the NOX 
SIP Call, and recodifies previously SIP-approved provisions that apply 
to IC engines and cement kilns. The non-EGUs are also required to meet 
the monitoring, recordkeeping, and reporting requirements under 40 CFR 
part 75, as required under 50 CFR 51.121. The October 11, 2017 
supplemental submittal demonstrates that the total NOX 
emissions from all affected non-EGUs in West Virginia are less than the 
State cap previously established for West Virginia. As the amended 
regulation establishes a NOX emissions cap equal to the 
amount of the West Virginia NOX budget under the 
NOX SIP Call as discussed in this proposal and West Virginia 
has demonstrated that emissions from non-EGUs are well below the cap, 
there is no expected emissions impact on any pollutant and thus SIP 
revision is not expected to interfere with reasonable further progress, 
any NAAQS or any other CAA requirement, therefore meeting the 
requirements under section 110(l) of the CAA. EPA is proposing to 
approve the West Virginia SIP revision submitted on July 13, 2016, as 
supplemented on October 11, 2017, because the revised 45CSR40 addresses 
CAA requirements in section 110 and 40 CFR 51.121 for the 
NOX SIP Call and for units subject to the NOX SIP 
Call. EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

IV. Incorporation by Reference

    In this document, EPA is proposing to include regulatory text in a 
final EPA rule that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the revisions to West Virginia regulation 45CSR40--Control of 
Ozone Season Nitrogen Oxides Emissions. EPA has made, and will continue 
to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the For Further Information Contact section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    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 proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 proposing approval of revisions to West 
Virginia regulation 45CSR40 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.

[[Page 43841]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

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

    Dated: August 9, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2018-18524 Filed 8-27-18; 8:45 am]
 BILLING CODE 6560-50-P
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