43836 Federal Register / Vol. 83, No. 167 / Tuesday, August 28, 2018 / Proposed Rules 

• 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, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: August 16, 2018. 

Cathy Stepp, 

Regional Administrator, Region 5. 

[FR Doc. 2018–18640 Filed 8–27–18; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

spielberger.susan@epa.gov. 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 powers.marilyn@epa.gov. 

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 


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1CAIR 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). 

2North Carolina v. EPA, 531 F.3d 896 (DC Cir. 

2008). 

3North Carolina v. EPA, 550 F.3d 1176 (DC Cir. 

2008). 

4Subsequent 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. 

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 nonEGUs, 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 nonEGUs continued to be met. Under CAIR, 

states had the option to include the nonEGUs 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). 

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. 

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

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 


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5See 40 CFR part 97, Appendix C of Subpart E 

for non-EGU trading budgets for affected states. 

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 nonEGU 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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6See 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. 

TABLE 1—TOTAL OZONE SEASON NOX EMISSIONS FROM LARGE NON-EGUS IN WEST VIRGINIA

Source Units 

(boiler #) 

Maximum 

design heat 

input 

(mmBtu/hr) 

Ozone 

season 

operating 

time (hrs) 

NOX emission 

rate limit 

Ozone 

season 

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 Charleston ................ 26 352 3,672 70.4 lb/hr ............ 130 

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 nonEGUs 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 statewide 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. 

Recodification of Previously SIPApproved 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 


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7West Virginia has drafted the revision to 

45CSR40 that corrects the reference to CSAPR, and 

expects to finalize the revision in its 2019 

legislative session. 

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. 

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 nonEGUs 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. 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 167 / Tuesday, August 28, 2018 / Proposed Rules 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 


daltland on DSKBBV9HB2PROD with PROPOSALS