
[Federal Register Volume 77, Number 201 (Wednesday, October 17, 2012)]
[Rules and Regulations]
[Pages 63736-63743]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25386]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0388; FRL-9738-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting full approval of revisions to the West 
Virginia State Implementation Plan (SIP), submitted by the State of 
West Virginia through the West Virginia Department of Environmental 
Protection (WVDEP) on August 31, 2011, with the exception of the narrow 
issue of the requirement to include condensable emissions of 
particulate matter (condensables) in the definition of ``regulated NSR 
pollutant'' in the State's Prevention of Significant Deterioration 
(PSD) program. These revisions pertaining to West Virginia's PSD 
program incorporate preconstruction permitting regulations for fine 
particulate matter (PM2.5) and Greenhouse Gases (GHGs) into 
the West Virginia SIP. In light of a comment received on the July 31, 
2012 proposed rule, EPA is reviewing West Virginia State Rule 45CSR14 
to determine the extent to which its definition of ``regulated NSR 
pollutant'' satisfies the corresponding Federal definition, and will 
address this issue in a separate action. In addition, EPA is granting 
full approval of the PSD portions of other related infrastructure 
submissions required by the Clean Air Act (CAA) which 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, with the 
exception of the narrow issue of the requirement to include 
condensables in the definition of ``regulated NSR pollutant.'' EPA will 
address this issue in a separate action. EPA is granting approval of 
these revisions in accordance with the requirements of the CAA.

[[Page 63737]]


DATES: This final rule is effective on November 16, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0388. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the West Virginia Department of 
Environmental Protection, Division of Air Quality, 601 57th Street SE., 
Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Michael Gordon, (215) 814-2039, or by 
email at gordon.mike@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 31, 2012 (77 FR 45302), EPA proposed approval of amendments 
to the PSD permitting regulations under West Virginia State Rule 
45CSR14, Permits for Construction and Major Modification of Major 
Stationary Sources of Air Pollution for the Prevention of Significant 
Deterioration, submitted by the WVDEP as a SIP revision on August 31, 
2011. The August 31, 2011 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). In addition to the August 
31, 2011 SIP submission, EPA also proposed to approve those portions of 
previous SIP submissions from WVDEP which address the PSD-related 
requirements set forth in CAA section 110(a)(2)(D)(i)(II) for the 1997 
PM2.5 NAAQS, 1997 8-hour ozone NAAQS, 2006 PM2.5 
NAAQS, 2008 lead NAAQS, and 2008 ozone NAAQS, as well as CAA section 
110(a)(2)(C) and (J) for the 2008 lead NAAQS and 2008 ozone NAAQS. 
These previous SIP submissions, submitted by West Virginia to satisfy 
the PSD-related provisions found in CAA section 110(a)(2) are referred 
to as infrastructure SIP submissions. All of these State submittals, as 
well as technical support documents (TSDs) in support of the proposed 
and final actions are included in the docket. The July 31, 2012 notice 
of proposed rulemaking (NPR) and its supporting TSD contain detailed 
discussions of the West Virginia SIP submissions, their relationship to 
the CAA and the Federal regulatory PSD SIP requirements of 40 CFR part 
51.166 applicable as of the time of the August 31, 2011 submittal, as 
well as the PSD-related infrastructure requirements in CAA section 
110(a)(2), and EPA's rationale for its proposed action; therefore, 
those discussions will not be restated here. A summary of the comments 
received and EPA's responses are provided in Section II of this 
document.

II. Public Comments and EPA's Responses

    EPA received comments on the July 31, 2012 proposal to approve West 
Virginia's revisions to its SIP's PSD permitting requirements and to 
approve portions of infrastructure submissions relating to West 
Virginia's PSD permit program. The portions of the infrastructure 
submittals at issue relate to the PSD requirements of CAA sections 
110(a)(2)(C), (D)(i)(II) and (J) for the 2008 lead NAAQS and the 2008 
ozone NAAQS, and CAA sections 110(a)(2)(D)(i)(II) for the 1997 
PM2.5 NAAQS, 1997 ozone NAAQS, and the 2006 PM2.5 
NAAQS. A summary of those comments and EPA's responses are as follows:
    Comment: A commenter raises issues regarding the current economy in 
the State of West Virginia and contends that Federal air pollution 
requirements imposed since the 1970s have resulted in the economic 
decline in the Northern Panhandle.
    Response: EPA thanks the commenter for the submittal. For purposes 
of background, EPA is acting on SIP submissions that reflect State law 
in effect at the time of the submittals. The commenter has not raised 
any specific issue relating to the proposed approval of West Virginia's 
SIP submittals at issue in this rulemaking process. Nor has the 
commenter given any indication of what action they would prefer EPA to 
take on West Virginia's SIP submittals. Therefore, EPA views this 
comment as being not relevant to EPA's proposed action and EPA does not 
have any obligation to respond to this general and unrelated comment. 
See Sherley v. Sebellius, 776 F. Supp. 2d 1, 53-54 (D.D.C. 2011) 
(stating Federal agency must only respond to significant comments 
relevant to an agency's decision); Conference of State Bank Supervisors 
v. Office of Thrift Supervision, 792 F. Supp. 837, 846 (D.D.C. 1992) 
(finding agencies need only respond to significant comments under the 
Administrative Procedure Act).
    Comment: EPA cannot approve the infrastructure SIPs because the 
significant emissions rates in the SIP and other de minimis exceptions 
are arbitrary and capricious with regard to the 2008 ozone and lead 
NAAQS.
    EPA's Response: EPA disagrees with the commenter that we cannot 
approve the infrastructure SIPs because the significant emissions rates 
and other de minimis exceptions are arbitrary and capricious. The 
purpose of this rulemaking is to take action on West Virginia's SIP 
revision submittals based upon their consistency with Federal 
regulations. The significant emissions applicability levels of 0.6 tons 
per year (TPY) for lead and 40 tons TPY for VOCs and for NOX 
required by West Virginia's PSD permitting regulations mirror the 
Federal requirements found at 40 CFR 51.166(b)(23)(i) and 40 CFR 
52.21(b)(23)(i). West Virginia's proposed SIP revision satisfies the 
obligation that its SIP's PSD regulation meet 40 CFR 51.166(b)(23)(i). 
In fact, West Virginia's regulatory language mirrors the Federal 
counterpart language. Therefore, EPA has no basis to disapprove West 
Virginia's regulatory language and require West Virginia to meet an 
alternative standard which EPA has not established through the required 
administrative rulemaking process. West Virginia is not required to 
revise the significant emissions rates in question unless and until EPA 
revises the Federal requirements at 40 CFR 51.166(b)(23)(i) and 40 CFR 
52.21(b)(23)(i). For these reasons, EPA disagrees with the commenter's 
assertion that the significant emissions applicability thresholds in 
the West Virginia SIP's PSD regulation are arbitrary and capricious 
with regard to the 2008 ozone and lead NAAQS.
    Comment: One commenter objects to the EPA's proposed approval of 
the State's infrastructure SIP submissions for the 1997 and 2006 
PM2.5 and the 1997 and 2008 8-hour ozone and the 2008 lead 
NAAQS on the grounds that ``EPA has promulgated increments for 
PM2.5. See 75 FR 64,864 (Oct. 20, 2010).

[[Page 63738]]

However, the proposed West Virginia SIP does not include these 
increments even though the increments became applicable on October 12, 
2011 * * *. Therefore EPA cannot approve the West Virginia 
Infrastructure SIP regarding the PSD elements for PM2.5.'' 
\1\ The commenter argues that ``(s)tates are required to include these 
increments in their SIPs before EPA can fully-approve an infrastructure 
submission.'' However, the commenter also acknowledges that the States 
had until July 20, 2012 to amend their SIPs to address the 
PM2.5 increments required by the requirements of the 2010 
PM2.5 NSR/PSD Rule. With respect to this July 20, 2012 
deadline, the commenter asserts that because the proposed rule at issue 
was published in the Federal Register on July 31, 2012, the proposed 
rule was published after the deadline by which States were required to 
submit SIP revisions in compliance with the 2010 PM2.5 NSR/
PSD Rule. Therefore, as of the date that the proposed rule was 
published in the Federal Register (July 31, 2012), the PM2.5 
increments were required to be included in West Virginia's SIP in order 
for West Virginia to meet the PSD requirements of sections 
110(a)(2)(C), (D)(i)(II) and (J) of the CAA.
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    \1\ The commenter is referring to a separate rulemaking action 
by EPA: ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant 
Monitoring Concentration (SMC),'' 75 FR 64864 (Oct. 20, 2010). This 
collateral rulemaking concerned various issues relevant to 
PM2.5 and PSD, including increments, significant impact 
levels, and a significant monitoring concentration. This rule will 
be referred to herein as the ``2010 PM2.5 NSR/PSD Rule.''
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    In addition to the above assertions, the commenter sets forth three 
reasons why EPA should not approve the specific CAA 110(a)(2) SIPs 
without first ensuring that West Virginia's SIP includes the 
PM2.5 increments set forth at 40 CFR Sec.  51.166(c): (1) 
EPA should not allow proposed major sources in West Virginia ``to avoid 
PSD requirements like PM2.5 increments, while proposed major 
sources in other states * * * have to comply with this requirement''; 
(2) because EPA has proposed approval of the PSD requirements of CAA 
110(a)(2) for the 2008 ozone and lead NAAQS, EPA will not have another 
opportunity to ``revisit this issue of lack of PM2.5 
increments''; and (3) because emissions of PM2.5 and its 
precursors have negative effects on public health and welfare, EPA's 
full approval of West Virginia's infrastructure SIPs ``would cause 
innocent people to be killed by illegal PM2.5 emissions.'' 
The commenter concludes by stating that: ``EPA must disapprove the PSD 
elements of the Infrastructure SIPs for failure to include the 
PM2.5 increments. In the alternative, EPA could grant a 
conditional approval if West Virginia agrees to adopt the 
PM2.5 increments into its SIP within one year.''
    Response: EPA disagrees with the commenter that we cannot approve 
this SIP submission without inclusion of increments. The commenter 
asserts that the EPA should now disapprove the West Virginia 
infrastructure SIP because, since the date of EPA's proposal, the 
deadline for the submission of a SIP revision addressing the 
PM2.5 increments has passed. However, pursuant to the 2010 
PM2.5 NSR/PSD Rule and CAA section 166(b), States were not 
required to submit a revised SIP addressing the PM2.5 
increments until July 20, 2012. EPA proposed action on the West 
Virginia infrastructure SIP in a notice signed on July 18, 2012.\2\ 
Therefore, on the date that the proposed rule was signed by the 
Regional Administrator, the PM2.5 increments were not 
required to be included in the West Virginia SIP in order for West 
Virginia to meet the PSD requirements of CAA sections 110(a)(2)(C), 
(D)(i)(II) and (J) of the Act.\3\
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    \2\ Although the notice was published by the Federal Register on 
July 31, 2012, the notice was signed by the Regional Administrator 
on July 18, 2012, before the statutory deadline for submission of 
the SIP revision addressing the PM2.5 increments.
    \3\ The commenter cites to a rulemaking in Region 5 wherein EPA 
proposed to narrowly disapprove a Michigan SIP to the extent that it 
failed to address the requirement to account for PM2.5 
precursors in the State's PSD program. That rulemaking, however, 
addressed requirements from the 2008 PM2.5 NSR 
Implementation Rule for which the deadline for States to revise 
their SIPs had passed more than a year prior at the time of 
proposal. See 77 Fed. Reg. 45,992 (Aug. 2, 2012). In this case, the 
deadline for West Virginia to revise its SIP to address 
PM2.5 increments had not passed at the time of proposal.
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    The commenter's concerns relate to the timing of EPA action on 
collateral, yet related, SIP submissions. These concerns highlight an 
important overarching question that the EPA has to confront when 
assessing the various infrastructure SIP submittals addressed in the 
proposed rule: how to proceed when the timing and sequencing of 
multiple related SIP submissions impact the ability of the State and 
the EPA to address certain substantive issues in the infrastructure SIP 
submission in a reasonable fashion.
    It is appropriate for the EPA to take into consideration the timing 
and sequence of related SIP submissions as part of determining what it 
is reasonable to expect a State to have addressed in an infrastructure 
SIP submission for a NAAQS at the time when the EPA acts on such 
submission. The EPA has historically interpreted section 110(a)(2)(C), 
section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to require the 
EPA to assess a State's infrastructure SIP submission with respect to 
the then-applicable and Federally enforceable PSD regulations required 
to be included in a State's SIP at the time EPA takes action on the 
SIP. However, the EPA does not consider it reasonable to interpret 
section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 
110(a)(2)(J) to require the EPA to propose to disapprove a State's 
infrastructure SIP submissions because the State had not yet, at the 
time of proposal, made a submission that was not yet due for the 2010 
PM2.5 NSR/PSD Rule. To adopt a different approach by which 
the EPA could not act on an infrastructure SIP, or at least could not 
approve an infrastructure SIP, whenever there was any impending 
revision to the SIP required by another collateral rulemaking action 
would result in regulatory gridlock and make it impracticable or 
impossible for EPA to act on infrastructure SIPs if EPA is in the 
process of revising collateral PSD regulations. The EPA believes that 
such an outcome would be an unreasonable reading of the statutory 
process for the infrastructure SIPs contemplated in section 110(a)(1) 
and (2).
    The EPA acknowledges that it is important that these additional PSD 
program revisions be evaluated and approved into the State's SIP in 
accordance with the CAA. In fact, West Virginia made the submission 
required by the 2010 PM2.5 NSR/PSD Rule on June 12, 2010, 
and the EPA therefore intends to address the PM2.5 
increments in a subsequent rulemaking. EPA also acknowledges the 
commenter's concern about the potential for sources not being evaluated 
with respect to increments during the interim period while new PSD 
program revisions are being evaluated. However, EPA notes that it is 
implicit in the SIP processing procedures under CAA section 110(k) and 
the timing of notice and comment rulemaking that there will often be 
interim periods during which a State has adopted and submitted a new 
State law requirement in order to meet a CAA requirement, but the EPA 
will not yet have acted upon it to make it a Federally enforceable part 
of the State's SIP.
    Moreover, major sources in West Virginia are subject to the 
PM2.5 increments pursuant to the version of the regulation, 
45CSR14, currently in effect in West Virginia. Because the regulations 
relating to PM2.5 increments are currently effective and 
enforceable

[[Page 63739]]

as a matter of State law, as of June 1, 2012, the EPA in the interim 
believes that proposed major sources in West Virginia are being 
required as a matter of State law to comply with the PSD requirements 
like PM2.5 increments and thus that these sources are not 
being treated differently under State law than similar sources in other 
States that have approved SIP revisions that include the increments. 
The only distinction between West Virginia and the other States 
identified by the commenter is that those other States submitted their 
SIP revisions addressing the PM2.5 increments far enough in 
advance of EPA's action on the States' infrastructure SIPs to begin the 
administrative rulemaking process for such SIP revisions. Thus, the EPA 
does not believe that approving the State's infrastructure SIP 
submissions at this time will lead to major sources in West Virginia 
being treated differently than similar sources in the other States as a 
factual matter. If the commenter determines that sources are not being 
evaluated in accordance with applicable State law requirements during 
the interim before EPA acts on a later SIP submission, those concerns 
can be addressed in the State's permitting process.
    The EPA shares the commenter's concerns that emissions of 
PM2.5 and its precursors have negative effects on public 
health and welfare. However, EPA has no basis on which to find that 
EPA's approval of West Virginia's infrastructure SIPs ``would cause 
innocent people to be killed by illegal PM2.5 emissions.'' 
As explained above, the State is addressing PM2.5 increments 
in the version of 45CSR14 currently adopted pursuant to State 
regulatory requirements. West Virginia made the SIP submission required 
by the 2010 PM2.5 NSR/PSD Rule to reflect that its PSD 
permitting program now includes PM2.5 increments as required 
by the 2010 PM2.5 NSR/PSD Rule. EPA will be acting on that 
submission in a separate rulemaking action in accordance with section 
110(k). Until such time as EPA evaluates West Virginia's submission and 
takes the necessary rulemaking actions, EPA notes the fact that the 
revisions have been made and are currently enforceable for purposes of 
State law.
    Finally, EPA has considered the suggestion that, rather than 
approving the State's infrastructure SIPs, the EPA ``could grant a 
conditional approval'' of the infrastructure SIPs if West Virginia 
agrees to adopt the PM2.5 increments as required by the 2010 
PM2.5 NSR/PSD Rule into its SIP within one year.
    The EPA interprets the commenter's suggestion that EPA grant 
``conditional approval'' of the State's infrastructure SIP submissions 
to be a reference to the concept of conditional approval under section 
110(k)(4). The EPA considered the commenter's suggestion as a means of 
addressing the SIP submission timing issue, but EPA is constrained by 
the provisions of the statute. Section 110(k)(4), under the rubric of 
``conditional approval,'' explicitly authorizes EPA to approve a SIP 
submission ``based on a commitment of the State to adopt specific 
enforceable measures by a date certain, but not later than 1 year after 
the date of approval of the plan revision.'' Courts have confirmed that 
conditional approvals are an available course of action under section 
110(k), but only if the statutory conditions for such conditional 
approvals can be met.
    Based on the specific language of section 110(k)(4), EPA concludes 
that it would not be appropriate to use the mechanism of a conditional 
approval in this action on the West Virginia PSD-related infrastructure 
SIP submissions. The statute clearly contemplates use of this approach 
when a State has made a commitment to make a submission in the future 
that meets the statutory criteria. In this instance, however, on June 
12, 2012, West Virginia submitted the SIP revision required by the 2010 
PM2.5 NSR/PSD Rule. Therefore, the EPA does not believe that 
it is appropriate to use the mechanism of a conditional approval in 
these circumstances.
    Comment: EPA cannot approve the infrastructure SIPs because West 
Virginia's SIP does not clearly regulate condensable direct 
PM2.5.
    Response: The 2008 NSR PM2.5 Rule changed the Federal 
definition of ``regulated NSR pollutant,'' found at 40 CFR 
51.166(b)(49)(vi) to require that States account for condensable 
emissions of particulate matter (condensables) in issuing NSR permits. 
In light of this comment, EPA is reviewing West Virginia State Rule 
45CSR14 to determine the extent to which its definition of ``regulated 
NSR pollutant'' satisfies the requirements of section 51.166(b)(49)(vi) 
insofar as it applies to particulate matter. For this reason, EPA is 
deferring taking action on the definition of ``regulated NSR 
pollutant'' in section 2.66 of West Virginia State Rule 45CSR14 with 
regard to the requirement to account for condensables. EPA will address 
this issue in a separate rulemaking action.

III. Final Actions

    EPA is fully approving WVDEP's August 31, 2011 submittal, except 
for the narrow issue of the requirement to include condensable 
emissions of particulate matter in the definition of ``regulated NSR 
pollutant'' found at 45CSR14 section 2.66. Except for this narrow 
issue, EPA is approving all other portions of the submittal, including 
but not limited to, the remainder of section 2.66. In approving West 
Virginia State Rule 45CSR14 with regard to all other CAA and Federal 
regulatory SIP requirements for PSD applicable as of the August 31, 
2011 SIP revision submission date, EPA is acknowledging that it meets 
the ``Prevention of Significant Deterioration and Title V Greenhouse 
Gas Tailoring Rule'' (Tailoring Rule), which was promulgated on June 3, 
2010 (75 FR 31514). EPA is also approving those portions of West 
Virginia's SIP submissions dated December 3, 2007, December 11, 2007, 
April 3, 2008, October 1, 2009, October 26, 2011, and February 17, 2012 
which address the PSD-related requirements set forth in CAA section 
110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS, 1997 8-hour 
ozone NAAQS, 2006 PM2.5 NAAQS, 2008 lead NAAQS, and 2008 
ozone NAAQS, as well as CAA section 110(a)(2)(C) and (J) for the 2008 
lead NAAQS and 2008 ozone NAAQS, except for the narrow issue of the 
requirement to include condensable emissions of particulate matter in 
the definition of ``regulated NSR pollutant'' found at 45CSR14 section 
2.66.
    EPA is not finalizing its proposed approval of WVDEP's August 31, 
2011 submittal with respect to the narrow issue of the requirement to 
include condensable emissions of particulate matter in the definition 
of ``regulated NSR pollutant'' found at 45CSR14 section 2.66. 
Additionally, EPA is not finalizing its proposed approval of WVDEP's 
SIP submissions dated December 3, 2007, December 11, 2007, April 3, 
2008, October 1, 2009, October 26, 2011, and February 17, 2012 
submitted to meet the PSD-related infrastructure SIP obligations set 
forth at CAA sections 110(a)(2)(C), (D)(i)(II) and (J) with respect to 
the narrow issue of the requirement to include condensable emissions of 
particulate matter in the definition of ``regulated NSR pollutant'' 
found at 45CSR14 section 2.66. EPA will address these issues in a 
separate action.

[[Page 63740]]

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements, 
except as noted in this document, and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by [Insert date 60 days from date of 
publication of this document in the Federal Register]. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action on the West Virginia SIP PSD 
provisions may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

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

    Dated: September 27, 2012.
W. C. Early,
Acting Regional Administrator, Region III.

    40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520,
0
a. The table in paragraph (c) is amended by revising the entries for 
[45 CSR] Series 14 regarding Permits for Construction and Major 
Modification of Major Stationary Sources of Air Pollution for the 
Prevention of Significant Deterioration.
0
b. The table in paragraph (e) is amended by:
    i. Revising the entries regarding the Section 110(a)(2) PSD-related 
Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS, the 1997 
PM2.5 NAAQS, the 2006 PM2.5 NAAQS, the 2008 Lead 
NAAQS, and the 2008 ozone NAAQS.
    ii. Adding at the end of the table an entry regarding the Section 
110(a)(2) PSD-related Infrastructure Requirements 110(a)(2)(C), 
(D)(i)(II), and (J) for the 2008 8-Hour Ozone NAAQS.
    The revisions and addition read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved Regulations in the West Virginia SIP
----------------------------------------------------------------------------------------------------------------
                                                          State                          Additional explanation/
State citation [Chapter 16-20 or     Title/subject      effective    EPA approval date      citation at 40 CFR
            45 CSR ]                                       date                                  52.2565
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
[45CSR] Series 14 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution
 for the Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------

[[Page 63741]]

 
Section 45-14-1.................  General............      6/16/11  10/17/12 [Insert
                                                                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-2.................  Definitions........      6/16/11  10/17/12 [Insert     1. Inclusion of PM2.5
                                                                     page number where    significant emissions
                                                                     the document         rates and precursors
                                                                     begins].             and GHG provisions.
                                                                                         2. Taking no action on
                                                                                          the definition of
                                                                                          ``regulated NSR
                                                                                          pollutant'' found at
                                                                                          45CSR14 section 2.66.
                                                                                          only as it relates to
                                                                                          the requirement to
                                                                                          include condensable
                                                                                          emissions of
                                                                                          particulate matter in
                                                                                          that definition. See
                                                                                          Sec.   52.2522(i).
Section 45-14-3.................  Applicability......      6/16/11  10/17/12 [Insert
                                                                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-4.................  Ambient Air Quality      6/16/11  10/17/12 [Insert     .......................
                                   Increments and                    page number where
                                   Ceilings.                         the document
                                                                     begins].
Section 45-14-5.................  Area Classification      6/16/11  10/17/12 [Insert
                                                                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-6.................  Prohibition of           6/16/11  10/17/12 [Insert
                                   Dispersion                        page number where
                                   Enhancement                       the document
                                   Techniques.                       begins].
Section 45-14-7.................  Registration,            6/16/11  10/17/12 [Insert
                                   Report and Permit                 page number where
                                   Requirements for                  the document
                                   Major Stationary                  begins].
                                   Sources and Major
                                   Modifications.
Section 45-14-8.................  Requirements             6/16/11  10/17/12 [Insert
                                   Relating to                       page number where
                                   Control Technology.               the document
                                                                     begins].
Section 45-14-9.................  Requirements             6/16/11  10/17/12 [Insert
                                   Relating to the                   page number where
                                   Source's Impact on                the document
                                   Air Quality.                      begins].
Section 45-14-10................  Modeling                 6/16/11  10/17/12 [Insert
                                   Requirements.                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-11................  Air Quality              6/16/11  10/17/12 [Insert
                                   Monitoring                        page number where
                                   Requirements.                     the document
                                                                     begins].
Section 45-14-12................  Additional Impacts       6/16/11  10/17/12 [Insert
                                   Analysis                          page number where
                                   Requirements.                     the document
                                                                     begins].
Section 45-14-13................  Additional               6/16/11  10/17/12 [Insert
                                   Requirements and                  page number where
                                   Variances for                     the document
                                   Source Impacting                  begins].
                                   Federal Class 1
                                   Areas.
Section 45-14-14................  Procedures for           6/16/11  10/17/12 [Insert
                                   Sources Employing                 page number where
                                   Innovative Control                the document
                                   Technology.                       begins].
Section 45-14-15................  Exclusions From          6/16/11  10/17/12 [Insert
                                   Increment                         page number where
                                   Consumption.                      the document
                                                                     begins].
Section 45-14-16................  Specific Exemptions      6/16/11  10/17/12 [Insert
                                                                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-17................  Public Review            6/16/11  10/17/12 [Insert
                                   Procedures.                       page number where
                                                                     the document
                                                                     begins].
Section 45-14-18................  Public Meetings....      6/16/11  10/17/12 [Insert
                                                                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-19................  Permit Transfer,         6/16/11  10/17/12 [Insert
                                   Cancellation and                  page number where
                                   Responsibility.                   the document
                                                                     begins].
Section 45-14-20................  Disposition of           6/16/11  10/17/12 [Insert
                                   Permits.                          page number where
                                                                     the document
                                                                     begins].

[[Page 63742]]

 
Section 45-14-21................  Conflict with Other      6/16/11  10/17/12 [Insert
                                   Permitting Rules.                 page number where
                                                                     the document
                                                                     begins].
Section 45-14-25................  Actual PALs........      6/16/11  10/17/12 [Insert
                                                                     page number where
                                                                     the document
                                                                     begins].
Section 45-14-26................  Inconsistency            6/16/11  10/17/12 [Insert
                                   Between Rules.                    page number where
                                                                     the document
                                                                     begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                   Applicable
  Name of  non-regulatory  SIP     geographic     State  submittal date    EPA approval date      Additional
            revision                  area                                                        explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure    Statewide   12/3/07, 5/21/08          8/4/11, 76 FR,      This action
 Requirements for the 1997 8-                                              47062.              addresses the
 Hour Ozone NAAQS.                                                                             following CAA
                                                                                               elements or
                                                                                               portions thereof:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(ii), (E),
                                                                                               (F), (G), (H),
                                                                                               (J), (K), (L),
                                                                                               and (M).
                                                12/3/07, 12/11/07, 8/31/  10/17/12 [Insert    Approval of the
                                                 11                        page number where   following PSD-
                                                                           the document        related elements
                                                                           begins].            or portions
                                                                                               thereof:
                                                                                               110(a)(2)(D)(i)(I
                                                                                               I), except taking
                                                                                               no action on the
                                                                                               definition of
                                                                                               ``regulated NSR
                                                                                               pollutant'' found
                                                                                               at 45CSR14
                                                                                               section 2.66 only
                                                                                               as it relates to
                                                                                               the requirement
                                                                                               to include
                                                                                               condensable
                                                                                               emissions of
                                                                                               particulate
                                                                                               matter in that
                                                                                               definition. See
                                                                                               Sec.
                                                                                               52.2522(i).
Section 110(a)(2) Infrastructure    Statewide   4/3/08, 5/21/08, 7/9/08,  8/4/11, 76 FR,      This action
 Requirements for the 1997 PM2.5                 3/18/10                   47062.              addresses the
 NAAQS.                                                                                        following CAA
                                                                                               elements or
                                                                                               portions thereof:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(ii), (E),
                                                                                               (F), (G), (H),
                                                                                               (J), (K), (L),
                                                                                               and (M).
                                                12/11/07, 4/3/08, 8/31/   10/17/12 [Insert    Approval of the
                                                 11                        page number where   following PSD-
                                                                           the document        related elements
                                                                           begins].            or portions
                                                                                               thereof:
                                                                                               110(a)(2)(D)(i)(I
                                                                                               I), except taking
                                                                                               no action on the
                                                                                               definition of
                                                                                               ``regulated NSR
                                                                                               pollutant'' found
                                                                                               at 45CSR14
                                                                                               section 2.66 only
                                                                                               as it relates to
                                                                                               the requirement
                                                                                               to include
                                                                                               condensable
                                                                                               emissions of
                                                                                               particulate
                                                                                               matter in that
                                                                                               definition. See
                                                                                               Sec.
                                                                                               52.2522(i).
Section 110(a)(2) Infrastructure    Statewide   10/1/09, 3/18/10          8/4/11, 76 FR,      This action
 Requirements for the 2006 PM2.5                                           47062.              addresses the
 NAAQS.                                                                                        following CAA
                                                                                               elements or
                                                                                               portions thereof:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(ii), (E),
                                                                                               (F), (G), (H),
                                                                                               (J), (K), (L),
                                                                                               and (M).
                                                10/1/09, 8/31/11          10/17/12 [Insert    Approval of the
                                                                           page number where   following PSD-
                                                                           the document        related elements
                                                                           begins].            or portions
                                                                                               thereof:
                                                                                               110(a)(2)(D)(i)(I
                                                                                               I), except taking
                                                                                               no action on the
                                                                                               definition of
                                                                                               ``regulated NSR
                                                                                               pollutant'' found
                                                                                               at 45CSR14
                                                                                               section 2.66 only
                                                                                               as it relates to
                                                                                               the requirement
                                                                                               to include
                                                                                               condensable
                                                                                               emissions of
                                                                                               particulate
                                                                                               matter in that
                                                                                               definition. See
                                                                                               Sec.
                                                                                               52.2522(i).
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure    Statewide   10/26/11                  9/10/12, 77 FR,     This action
 Requirements for the 2008 Lead                                            55417.              addresses the
 NAAQS.                                                                                        following CAA
                                                                                               elements:
                                                                                               110(a)(2)(A),
                                                                                               (B), (C), (D),
                                                                                               (E), (F), (G),
                                                                                               (H), (J), (K),
                                                                                               (L), and (M), or
                                                                                               portions thereof.
                                                8/31/11, 10/26/11         10/17/12 [Insert    Approval of the
                                                                           page number where   following
                                                                           the document        elements or
                                                                           begins].            portions thereof:
                                                                                               110(a)(2)(C),
                                                                                               (D)(i)(II), and
                                                                                               (J), except
                                                                                               taking no action
                                                                                               on the definition
                                                                                               of ``regulated
                                                                                               NSR pollutant''
                                                                                               found at 45CSR14
                                                                                               section 2.66 only
                                                                                               as it relates to
                                                                                               the requirement
                                                                                               to include
                                                                                               condensable
                                                                                               emissions of
                                                                                               particulate
                                                                                               matter in that
                                                                                               definition. See
                                                                                               Sec.
                                                                                               52.2522(i).

[[Page 63743]]

 
Section 110(a)(2) Infrastructure    Statewide   8/31/11, 2/17/12          10/17/12 [Insert    Approval of the
 Requirements for the 2008 8-                                              page number where   following PSD-
 Hour Ozone NAAQS.                                                         the document        related elements
                                                                           begins].            or portions
                                                                                               thereof:
                                                                                               110(a)(2)(C),
                                                                                               (D)(i)(II), and
                                                                                               (J), except
                                                                                               taking no action
                                                                                               on the definition
                                                                                               of ``regulated
                                                                                               NSR pollutant''
                                                                                               found at 45CSR14
                                                                                               section 2.66 only
                                                                                               as it relates to
                                                                                               the requirement
                                                                                               to include
                                                                                               condensable
                                                                                               emissions of
                                                                                               particulate
                                                                                               matter in that
                                                                                               definition. See
                                                                                               Sec.
                                                                                               52.2522(i).
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  52.2522, paragraph (i) is added to read as follows.


Sec.  52.2522  Approval status.

* * * * *
    (i)(1) EPA is fully approving WVDEP's August 31, 2011 submittal, 
except for the narrow issue of the requirement to include condensable 
emissions of particulate matter in the definition of ``regulated NSR 
pollutant'' found at 45CSR14 section 2.66. Except for this narrow 
issue, EPA is approving all other portions of the submittal, including 
but not limited to, the remainder of section 2.66. In approving West 
Virginia State Rule 45CSR14 with regard to all other CAA and Federal 
regulatory SIP requirements for PSD applicable as of the August 31, 
2011 SIP revision submission date, EPA is acknowledging that it is 
consistent with the ``Prevention of Significant Deterioration and Title 
V Greenhouse Gas Tailoring Rule'' (Tailoring Rule), which was 
promulgated on June 3, 2010 (75 FR 31514). EPA is not finalizing its 
proposed approval of WVDEP's August 31, 2011 submittal with respect to 
the narrow issue of the requirement to include condensable emissions of 
particulate matter in the definition of ``regulated NSR pollutant'' 
found at 45CSR14 section 2.66. In light of a comment received on its 
July 31, 2012 proposed rule (77 FR 45302), EPA is reviewing West 
Virginia State Rule 45CSR14 to determine the extent to which its 
definition of ``regulated NSR pollutant'' satisfies the corresponding 
Federal definition, and will address this issue in a separate action.
    (2) EPA is also approving those portions of West Virginia's SIP 
submissions dated December 3, 2007, December 11, 2007, April 3, 2008, 
October 1, 2009, October 26, 2011, and February 17, 2012 which address 
the PSD-related requirements set forth in CAA section 
110(a)(2)(D)(i)(II) for the 1997 PM2.5 NAAQS, 1997 8-hour 
ozone NAAQS, 2006 PM2.5 NAAQS, 2008 lead NAAQS, and 2008 
ozone NAAQS, as well as CAA Section 110(a)(2)(C) and (J) for the 2008 
lead NAAQS and 2008 ozone NAAQS, except for the narrow issue of the 
requirement to include condensable emissions of particulate matter in 
the definition of ``regulated NSR pollutant'' found at 45CSR14 section 
2.66. EPA is not finalizing its July 31, 2012 proposed approval (77 FR 
45302) of WVDEP's SIP submissions dated December 3, 2007, December 11, 
2007, April 3, 2008, October 1, 2009, October 26, 2011, and February 
17, 2012 submitted to meet the PSD-related infrastructure SIP 
obligations set forth at CAA sections 110(a)(2)(C), (D)(i)(II) and (J) 
with respect to the narrow issue of the requirement to include 
condensable emissions of particulate matter in the definition of 
``regulated NSR pollutant'' found at 45CSR14 section 2.66. EPA will 
address this issue in a separate action.

[FR Doc. 2012-25386 Filed 10-16-12; 8:45 am]
BILLING CODE 6560-50-P


