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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

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 (PM_2.5) 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 PM_2.5 and ozone National Ambient Air Quality Standards (NAAQS), the 2006 PM_2.5 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 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 (PM_2.5)” (NSR PM_2.5 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 PM_2.5 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 PM_2.5 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 PM_2.5 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 PM_2.5, setting an annual standard at a level of 15 micrograms per cubic meter (μg/m³) and a 24-hour standard at a level of 65 μg/m³ (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 PM_2.5, such as visibility impairment, soiling, and materials damage. On October 17, 2006, EPA revised the primary and secondary NAAQS for PM_2.5. In that rulemaking action, EPA reduced the 24-hour NAAQS for PM_2.5 to 35 μg/m³ and retained the existing annual PM_2.5 NAAQS of 15 μg/m³ (71 FR 61236).

B. Implementation of NSR Requirements for PM _2.5 —the NSR PM _2.5 Rule

On May 16, 2008, EPA promulgated a rule (the NSR PM_2.5 Rule) to implement the 1997 PM_2.5 NAAQS, including changes to the NSR program (73 FR 28321). The 2008 NSR PM_2.5 Rule revised the NSR program requirements to establish the framework for implementing preconstruction permit review for the PM_2.5 NAAQS in both attainment and nonattainment areas. The 2008 NSR PM_2.5 Rule also established the following NSR requirements to implement the PM_2.5 NAAQS: (1) Require NSR permits to address directly emitted PM_2.5 and precursor pollutants; (2) establish significant emission rates for direct PM_2.5 and precursor pollutants (including sulfur dioxide (SO₂) and oxides of nitrogen (NO_X); (3) establish PM_2.5 emission offsets; and (4) require states to account for gases that condense to form particles (condensables) in PM_2.5 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 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 PM_2.5, 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 PM_2.5 NAAQS, 1997 ozone NAAQS, and 2006 PM_2.5 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 PM_2.5 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 PM_2.5 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 PM_2.5 NAAQS, 1997 ozone NAAQS, and 2006 PM_2.5 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 PM_2.5 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.