
[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Proposed Rules]
[Pages 16449-16452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-06068]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0113; FRL-9790-9]


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 disapprove a narrow portion of a State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia on August 31, 2011. EPA is proposing this action because a 
narrow portion of the submittal does not satisfy the Federal 
requirement for the inclusion of condensable emissions of particulate 
matter (condensables) within the definition of ``regulated new source 
review (NSR) pollutant.'' Additionally, because West Virginia's August 
31, 2011 SIP revision does not adequately account for condensable 
emissions within the definition of ``regulated NSR pollutant,'' EPA is 
also proposing to disapprove specific Prevention of Significant 
Deterioration (PSD) portions of related infrastructure submissions 
required by the Clean Air Act (CAA) to implement, maintain, and enforce 
the 1997 fine particulate matter (PM2.5) and ozone National 
Ambient Air Quality Standards (NAAQS), the 2006 PM2.5 NAAQS, 
and the 2008 lead and ozone

[[Page 16450]]

NAAQS. This action is being taken under the CAA.

DATES: Written comments must be received on or before April 15, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0113 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-2013-0113, 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-
2013-0113. 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

A. Federal Definition of ``Regulated NSR Pollutant''

    On May 16, 2008, EPA promulgated a rule to implement the 1997 
PM2.5 NAAQS, including changes to the NSR program (the NSR 
PM2.5 Rule). See 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. Among other things, 
the 2008 NSR PM2.5 Rule required states to account for 
condensables in emissions of particulate matter (PM), PM less than or 
equal to ten micrometers in diameter (PM10), and 
PM2.5 no later than January 1, 2011. In an October 25, 2012 
final rule (77 FR 65107), EPA clarified that condensable PM should be 
included as part of the emissions measurements only for regulation of 
PM2.5 and PM10. The final rule removed the 
inadvertent requirement in the 2008 NSR PM2.5 Rule that 
measurements of condensable PM be included as part of the measurement 
and regulation of PM.

B. U.S. Court of Appeals' Decision in Natural Resources Defense Council 
v. EPA

    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, No. 08-1250, 2013 WL 45653 (D.C. Cir., filed 
July 15, 2008) (consolidated with 09-1102, 11-1430), issued a judgment 
that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The Court ordered the EPA to ``repromulgate 
these rules pursuant to Subpart 4 consistent with this opinion.'' Id. 
at *8. Subpart 4 of Part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' 73 FR 28321 (May 
16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in both nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, EPA does not consider the portions 
of the 2008 rule that address requirements for PM2.5 
attainment and unclassifiable areas to be affected by the Court's 
opinion. Moreover, EPA does not anticipate the need to revise any PSD 
requirements promulgated in the 2008 rule in order to comply with the 
Court's decision. Accordingly, EPA's narrow disapproval of West 
Virginia's infrastructure SIP as to elements (C), (D)(i)(II), or (J) 
with respect to the PSD requirements promulgated by the 2008 
implementation rule does not conflict with the Court's opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does not 
affect EPA's current action on the related infrastructure submittals. 
EPA interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.

C. West Virginia's August 2011 SIP Submission

    On August 31, 2011, the State of West Virginia through the West 
Virginia Department of Environmental Protection (WVDEP) submitted a 
formal revision to its SIP (the August 2011 SIP submission). The August 
2011 SIP submission consisted of amendments to the PSD permitting 
regulations under West Virginia State Rule 45CSR14. On July 31, 2012 
(77 FR 45302), EPA proposed full approval of West Virginia's August 
2011 SIP submission, as well as the PSD portions of other related 
infrastructure submissions required by the CAA which are

[[Page 16451]]

necessary to implement, maintain, and enforce the 1997 PM2.5 
and ozone NAAQS, the 2006 PM2.5 NAAQS, and the 2008 lead and 
ozone NAAQS. During the public comment period, EPA received adverse 
comment on West Virginia State Rule 45CSR14 and the extent to which 
condensables were not included in the rule. The commenter stated that 
West Virginia's PSD regulations did not properly account for 
condensable emissions of PM. The inclusion of condensable emissions of 
PM is required by the Federal counterpart language in 40 CFR 52.21 and 
51.166 and the NSR PM2.5 Rule.
    In light of this comment, in an October 17, 2012 final rule (77 FR 
63736), EPA granted full approval of West Virginia's August 2011 SIP 
submission, as well as the PSD portions of other related infrastructure 
SIP submissions required by the CAA, with the exception of the narrow 
issue of the requirement to include condensables in the definition of 
``regulated NSR pollutant.'' In the October 17, 2012 final rule, EPA 
stated that West Virginia State Rule 45CSR14 would be reviewed to 
determine the extent to which condensables were addressed in the August 
2011 SIP submission and that this issue would be addressed in a 
separate rulemaking action. See 77 FR 63736.

II. Summary of SIP Revision

    As previously stated, on October 17, 2012, EPA granted full 
approval to the August 2011 SIP submission and PSD portions of other 
related infrastructure elements required by the CAA, with the exception 
of the narrow issue of the requirement to include condensables in the 
definition of ``regulated NSR pollutant.'' Subsequently, EPA has 
reviewed the remaining portion of the West Virginia August 2011 SIP 
submission regarding the definition of ``regulated NSR pollutant'' and 
is proposing to determine that condensable emissions are omitted from 
the 45CSR14 definition of ``regulated NSR pollutant.'' Therefore, this 
remaining portion of the August 2011 SIP submission does not satisfy 
the requirements of the corresponding Federal definition of ``regulated 
NSR pollutant'' and the NSR PM2.5 Rule. EPA is therefore 
proposing to disapprove this remaining narrow portion of the August 
2011 SIP submission. Also, because condensable emissions are a 
requirement for a PSD program by CAA section 110(a)(2)(C), (D)(i)(II) 
and (J), EPA is proposing to disapprove the narrow part of the PSD 
portions related to the definition of ``regulated NSR pollutant'' in 
other related West Virginia infrastructure SIP submissions required by 
the CAA which are necessary to implement, maintain, and enforce the 
1997 PM2.5 and ozone NAAQS, the 2006 PM2.5 NAAQS, 
and the 2008 lead and ozone NAAQS.

III. Proposed Action

    EPA is proposing to disapprove the narrow portion of West 
Virginia's August 2011 SIP submission related to the failure to include 
condensables in the ``regulated NSR pollutant'' definition on which we 
took no action in the October 17, 2012 final rule. See 77 FR 63736.
    Specifically, EPA is proposing to disapprove a narrow portion of 
West Virginia's August 2011 SIP submission because it does not satisfy 
the requirement that PM2.5 and PM10 emissions 
shall include gaseous emissions from a source or activity which 
condense to form PM at ambient temperatures. Because these grounds for 
disapproval are narrow and extend only to the lack of condensable 
emissions within the definition of ``regulated NSR pollutant,'' this 
proposal does not alter EPA's October 17, 2012 approval of the 
remaining portions of West Virginia's August 2011 SIP submittal.
    Additionally, EPA is proposing to disapprove specific portions of 
West Virginia's infrastructure SIP submissions dated December 3, 2007, 
December 11, 2007, April 3, 2008, October 1, 2009, October 26, 2011, 
and February 17, 2012 (collectively, the West Virginia Infrastructure 
SIP Submissions) which address certain obligations set forth at CAA 
sections 110(a)(2)(C), (D)(i)(II) and (J) relating to the West Virginia 
PSD permit program. In the October 17, 2012 final rule, EPA granted 
full approval of the PSD portions of the West Virginia infrastructure 
SIP submissions, with the exception of the narrow issue of the 
requirement to include condensables in the definition of ``regulated 
NSR pollutant.'' Because West Virginia's definition of ``regulated NSR 
pollutant'' in 45CSR14 does not address condensables, EPA is proposing 
to determine that West Virginia's infrastructure SIP submissions do not 
meet certain statutory and regulatory obligations relating to a PSD 
permit program set forth at CAA sections 110(a)(2)(C), (D)(i)(II) and 
(J) for the narrow issue of condensables as set forth in the table 
below. EPA is proposing to disapprove the narrow portion of the October 
26, 2011 and February 17, 2012 infrastructure SIP submissions from West 
Virginia because West Virginia has not met its obligations relating to 
the PSD permit program pursuant to CAA section 110(a)(2)(C), 
(D)(i)(II), and (J) due to the failure to include condensables in the 
definition of ``regulated NSR pollutant.'' EPA is also proposing to 
disapprove the narrow portion of the December 3, 2007, December 11, 
2007, April 3, 2008, and October 1, 2009 infrastructure SIP submissions 
from West Virginia because West Virginia has not met its obligations 
relating to the PSD permit program pursuant to CAA section 
110(a)(2)(D)(i)(II) for the 1997 PM2.5 and ozone NAAQS and 
the 2006 PM2.5 NAAQS due to the failure to include 
condensables in the definition of ``regulated NSR pollutant.'' Specific 
infrastructure elements and submittal dates are listed in the following 
table.

----------------------------------------------------------------------------------------------------------------
                                                                     Infrastructure element(s)  proposed to be
          Submittal(s) dated                      NAAQS                      disapproved in this action
----------------------------------------------------------------------------------------------------------------
December 11, 2007.....................  1997 PM2.5...............  110(a)(2)(D)(i)(II).
April 3, 2008.
December 3, 2007......................  1997 ozone...............  110(a)(2)(D)(i)(II).
December 11, 2007.
October 1, 2009.......................  2006 PM2.5...............  110(a)(2)(D)(i)(II).
October 26, 2011......................  2008 lead................  110(a)(2)(D)(i)(II), (C), and (J).
February 17, 2012.....................  2008 ozone...............  110(a)(2)(D)(i)(II), (C), and (J).
----------------------------------------------------------------------------------------------------------------

    Under CAA section 179(a), final disapproval of a submission that 
addresses a requirement of a Part D Plan (CAA sections 171-193), or is 
required in response to a finding of substantial inadequacy as 
described in CAA section 110(k)(5) starts a sanction clock. The 
specific provisions in the submissions we are proposing to disapprove, 
due to

[[Page 16452]]

the omission of condensables in the definition of ``regulated NSR 
pollutant,'' were not submitted by West Virginia to meet either of 
those requirements. Therefore, if EPA takes final action to disapprove 
these submissions, no sanctions under CAA section 179 will be 
triggered.
    The full or partial disapproval of a SIP revision triggers the 
requirement under CAA section 110(c) that EPA promulgate a Federal 
Implementation Plan (FIP) no later than two years from the date of the 
disapproval unless the State corrects the deficiency, and the 
Administrator approves the plan or plan revision before the 
Administrator promulgates such FIP. From discussions with the State, 
EPA anticipates that WVDEP will make a submission rectifying the 
deficiency regarding condensables. Further, EPA anticipates acting on 
WVDEP's submissions within the two year time frame prior to our FIP 
obligation on this very narrow issue. In the interim, EPA expects WVDEP 
to account for condensable emissions of PM consistent with Federal 
regulations for PSD permitting. EPA is soliciting public comments only 
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. In this case, EPA is 
proposing to disapprove a narrow portion of the West Virginia August 
2011 SIP submittal and PSD portions of other related infrastructure 
submissions required by the CAA that do not meet Federal requirements. 
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 does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the proposed rule to disapprove a narrow provision in the 
August 2011 SIP submission and to disapprove narrow portions related to 
the definition of ``regulated NSR pollutant'' in portions of the West 
Virginia infrastructure SIP submissions is not approved to apply in 
Indian country located in the state, and EPA notes that this action 
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, 
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: March 6, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-06068 Filed 3-14-13; 8:45 am]
BILLING CODE 6560-50-P


