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[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Proposed Rules]
[Pages 45302-45304]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18664]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0388; FRL-9705-9]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the West Virginia 
State Implementation Plan (SIP), submitted by the West Virginia 
Department of Environmental Protection (WVDEP) on August 31, 2011. 
These revisions pertaining to West Virginia's Prevention of Significant 
Deterioration (PSD) program incorporate preconstruction permitting 
regulations for fine particulate matter (PM2.5) and 
Greenhouse Gases (GHGs) into the West Virginia SIP. In addition, EPA is 
proposing to approve these revisions and portions of other related 
submissions for the purpose of determining that West Virginia has met 
its statutory obligations with respect to the infrastructure 
requirements of the Clean Air Act (CAA) which relate to West Virginia's 
PSD permitting program and are necessary to implement, maintain, and 
enforce the 1997 PM2.5 and ozone National Ambient Air 
Quality Standards (NAAQS), the 2006 PM2.5 NAAQS, and the 
2008 lead and ozone NAAQS. EPA is proposing to approve these revisions 
in accordance with the requirements of the CAA.

DATES: Written comments must be received on or before August 30, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0388 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: cox.kathleen@epa.gov.
    C. Mail: EPA-R03-OAR-2012-0388, Kathleen Cox, Associate Director, 
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0388. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your

[[Page 45303]]

comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in www.regulations.gov or 
in hard copy 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

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On August 31, 2011, WVDEP submitted a formal 
revision to its SIP (the August 2011 SIP submission). The SIP revision 
consists of amendments to the PSD permitting regulations under West 
Virginia State Rule 45CSR14. This action will replace the current SIP-
approved version of 45CSR14, Permits for Construction and Major 
Modification of Major Stationary Sources of Air Pollution for the 
Prevention of Significant Deterioration, which was previously approved 
by EPA on May 27, 2011 (76 FR 30832).
    The SIP revision submitted by West Virginia generally pertains to 
two Federal rulemaking actions. The first is the ``Implementation of 
the New Source Review (NSR) Program for Particulate Matter less than 
2.5 Micrometers (PM2.5)'' (NSR PM2.5 Rule), which 
was promulgated on May 16, 2008 (73 FR 28321). The second is the 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule'' (Tailoring Rule), which was promulgated on June 3, 
2010 (75 FR 31514).
    Whenever a new or revised NAAQS is promulgated, section 110(a) of 
the CAA imposes obligations upon states to submit SIP revisions that 
provide for the implementation, maintenance, and enforcement of the new 
or revised NAAQS within three years following the promulgation of such 
NAAQS--the ``infrastructure SIP'' revisions. Although states typically 
have met many of the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
particulate matter (PM) standards, states (including all the EPA Region 
III states) were still required to submit SIP revisions that address 
section 110(a)(2) for the 1997 and 2006 PM2.5 NAAQS. In 
addition to the August 2011 SIP submission, West Virginia has 
previously submitted SIP revisions addressing requirements set forth in 
CAA section 110(a)(2) for the 1997 and 2006 PM2.5 NAAQS, as 
well as the 1997 ozone NAAQS and 2008 ozone and lead NAAQS. Because 
these SIP submissions addressed West Virginia's compliance with CAA 
section 110(a)(2), these SIP submissions are referred to as 
infrastructure SIP submissions. These previous submittals, as well as a 
technical support document (TSD), are included in the docket for 
today's action. The TSD contains a detailed discussion of these 
submittals and their relationship to the requirements of CAA section 
110(a)(2).

A. Fine Particulate Matter and the NAAQS

    On July 18, 1997, EPA revised the NAAQS for PM to add new standards 
for fine particles, using PM2.5 as the indicator. 
Previously, EPA used PM10 (inhalable particles smaller than 
or equal to 10 micrometers in diameter) as the indicator for the PM 
NAAQS. EPA established health-based (primary) annual and 24-hour 
standards for PM2.5, setting an annual standard at a level 
of 15 micrograms per cubic meter ([mu]g/m\3\) and a 24-hour standard at 
a level of 65 [mu]g/m\3\ (62 FR 38652). At the time the 1997 primary 
standards were established, EPA also established welfare-based 
(secondary) standards identical to the primary standards. The secondary 
standards are designed to protect against major environmental effects 
of PM2.5, such as visibility impairment, soiling, and 
materials damage. On October 17, 2006, EPA revised the primary and 
secondary NAAQS for PM2.5. In that rulemaking action, EPA 
reduced the 24-hour NAAQS for PM2.5 to 35 [mu]g/m\3\ and 
retained the existing annual PM2.5 NAAQS of 15 [mu]g/m\3\ 
(71 FR 61236).

B. Implementation of NSR Requirements for PM2.5--the NSR PM2.5 Rule

    On May 16, 2008, EPA promulgated a rule (the NSR PM2.5 
Rule) to implement the 1997 PM2.5 NAAQS, including changes 
to the NSR program (73 FR 28321). The 2008 NSR PM2.5 Rule 
revised the NSR program requirements to establish the framework for 
implementing preconstruction permit review for the PM2.5 
NAAQS in both attainment and nonattainment areas. The 2008 NSR 
PM2.5 Rule also established the following NSR requirements 
to implement the PM2.5 NAAQS: (1) Require NSR permits to 
address directly emitted PM2.5 and precursor pollutants; (2) 
establish significant emission rates for direct PM2.5 and 
precursor pollutants (including sulfur dioxide (SO2) and 
oxides of nitrogen (NOX); (3) establish PM2.5 
emission offsets; and (4) require states to account for gases that 
condense to form particles (condensables) in PM2.5 emission 
limits.

C. GHG Requirements

    On June 3, 2010 (effective August 2, 2010), EPA promulgated a final 
rulemaking action, known as the Tailoring Rule, which established GHG 
emission thresholds for determining the applicability of PSD 
requirements to GHG-emitting sources. In a letter dated July 30, 2010 
(the 60-day letter), West Virginia stated that it could interpret the 
current version of 45CSR14 to apply the meaning of the term ``subject 
to regulation'' established by EPA in the Tailoring Rule in 
implementing the PSD program, but would still pursue rulemaking action 
to be consistent with Federal counterpart language. West Virginia has 
chosen to adopt changes under West Virginia State Rule 45CSR14 
consistent with those incorporated by the Tailoring Rule on June 3, 
2010 (75 FR 31514). A detailed explanation of GHGs, climate change and 
the impact on health, society, and the environment is included in EPA's 
technical support documents (TSDs) for EPA's GHG endangerment finding 
final rule (Document ID No. EPA-HQ-OAR-2009-0472-11292 at 
www.regulations.gov), as well as the TSD for this current action.
    West Virginia has also included in this revision automatic 
rescission provisions for the regulation of GHGs in the event that an 
EPA final rule, an act of the United States Congress, a Presidential 
Executive Order, a final order of the District of Columbia Circuit 
Court of Appeals, or an order of the United States Supreme Court 
results in GHGs not being subject to regulation

[[Page 45304]]

under the PSD program. EPA's analysis of the approvability of West 
Virginia's automatic rescission language is provided in the TSD for 
this current action.

D. Infrastructure Requirements Relating to West Virginia's PSD Permit 
Program

    With the addition of the requirements for PSD described above, West 
Virginia's program contains all of the emission limitations and control 
measures and other program elements required by 40 CFR 51.166 related 
to the PM2.5, ozone, and lead NAAQS. Therefore, we are 
proposing to approve the August 31, 2011 SIP submittal and relevant 
portions of West Virginia's infrastructure SIP submittals for the 
purpose of determining that West Virginia has met its statutory 
obligations relating to its PSD permit program under CAA sections 
110(a)(2)(C), (D)(i)(II), and (J) for the 2008 lead NAAQS and 2008 
ozone NAAQS. EPA is also making a determination that West Virginia has 
met its obligations relating to the PSD permit program pursuant to CAA 
section 110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS, 1997 
ozone NAAQS, and 2006 PM2.5 NAAQS . As already noted, the 
TSD for this action contains a detailed discussion of the relevant 
submissions and EPA's rationale for making this determination.

II. Summary of SIP Revision

    The SIP revision submitted by WVDEP consists of amendments to the 
PSD permitting regulations of Articles 45CSR14. The revision fulfills 
the Federal program requirements established by the EPA rulemaking 
actions discussed above. The amendments establish the major source 
threshold and significant emission rate for PM2.5 pursuant 
to the May 2008 NSR PM 2.5 Rule, and establish thresholds at 
which GHGs become subject to regulation under the PSD program pursuant 
to the June 2010 Tailoring Rule. Several minor revisions were made as 
well in order to be consistent with Federal counterpart language.
    The version of 45CSR14 submitted by West Virginia for approval into 
the SIP was adopted by West Virginia on March 18, 2011, and effective 
on June 16, 2011. They include revisions to 45CSR14--Permits for 
Construction and Major Modification of Major Stationary Sources of Air 
Pollution for the Prevention of Significant Deterioration. Based upon 
EPA's review of the revisions submitted by West Virginia for approval 
into the SIP, EPA find these revisions to be consistent with their 
Federal counterparts. A detailed summary of the NSR PM2.5 
rule, the Tailoring Rule, and a list of revisions to the state rule is 
available in the TSD.

III. Proposed Action

    EPA's review of the August 31, 2011 submittal finds the regulations 
consistent with their Federal counterparts. Therefore, EPA is proposing 
to approve this West Virginia SIP revision. Additionally, in light of 
this SIP revision, EPA is proposing to approve the portions of West 
Virginia's submissions dated December 3, 2007, December 11, 2007, April 
3, 2008, October 1, 2009, October 26, 2011, and February 17, 2012 which 
address the obligations set forth at CAA sections 110(a)(2)(C), 
(D)(i)(II) and (J) relating to the West Virginia PSD permit program. 
EPA is proposing to determine that West Virginia's SIP meets the 
statutory obligations relating to its PSD permit program set forth at 
CAA sections 110(a)(2)(C), (D)(i)(II) and (J) for the 2008 lead NAAQS, 
as well as the 2008 ozone NAAQS. Based on these and previous SIP 
submittals, EPA is also proposing to make a determination that West 
Virginia has met its obligations relating to the PSD permit program 
pursuant to CAA section 110(a)(2)(D)(i)(II) for the 1997 
PM2.5 NAAQS, 1997 ozone NAAQS, and 2006 PM2.5 
NAAQS. EPA is soliciting public comments on the issues discussed in 
this document. These comments will be considered before taking final 
action.

IV. 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 proposes to approve 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 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 proposed rule pertaining to NSR requirements for 
PM2.5 and GHGs for the West Virginia SIP 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: July 18, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-18664 Filed 7-30-12; 8:45 am]
BILLING CODE 6560-50-P
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