Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Prevention of Significant Deterioration, 16449-16452 [2013-06068]
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Federal Register / Vol. 78, No. 51 / Friday, March 15, 2013 / Proposed Rules
The advisory committee will hold its
fifth meeting on March 26 and 27, 2013.
The agenda includes the following:
• Review of previous committee
work;
• Review and discussion of
subcommittee work and
recommendations;
• Continued discussion on
recommendations for transfer surface
height and Transfer support location
and configuration
• Consideration of issues proposed by
committee members; and
• Discussion of administrative issues.
The preliminary meeting agenda,
along with information about the
committee, is available at the Access
Board’s Web site (https://www.accessboard.gov/medical-equipment.htm).
Committee meetings are open to the
public and interested persons can attend
the meetings and communicate their
views. Members of the public will have
opportunities to address the committee
on issues of interest to them during
public comment periods scheduled on
each day of the meeting.
The meetings will be accessible to
persons with disabilities. An assistive
listening system, computer assisted realtime transcription (CART), and sign
language interpreters will be provided.
Persons attending the meetings are
requested to refrain from using perfume,
cologne, and other fragrances for the
comfort of other participants (see
www.access-board.gov/about/policies/
fragrance.htm for more information).
Also, persons wishing to provide
handouts or other written information to
the committee are requested to provide
electronic formats to Rex Pace via email
prior to the meetings so that alternate
formats can be distributed to committee
members.
permit rule for sources subject to the
state operating permit program
regulations at 40 CFR part 70. These
provisions authorize the state to
incorporate terms from Federal consent
decrees or Federal district court orders
into these construction permits. EPA is
also approving public notice
requirements for these permit actions.
These rules will help streamline the
process for making Federal consent
decree and Federal district court order
requirements permanent and Federally
enforceable.
David M. Capozzi,
Executive Director.
Comments must be received on
or before April 15, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2012–0650, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: damico.genevieve@epa.gov.
3. Fax: (312) 385–5501.
4. Mail: Genevieve Damico, Chief, Air
Permits Section, Air Programs Branch
(AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: Genevieve Damico,
Chief, Air Permits Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted
during the Regional Office normal hours
of operation, and special arrangements
should be made for deliveries of boxed
information. The Regional Office official
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Please see the direct final rule which
is located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
[FR Doc. 2013–05936 Filed 3–14–13; 8:45 am]
FOR FURTHER INFORMATION CONTACT:
DATES:
40 CFR Part 52
Sam
Portanova, Environmental Engineer, Air
Permits Section, Air Programs Branch
(AR–18J), Environmental Protection
Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604,
(312) 886–3189,
portanova.sam@epa.gov.
[EPA–R05–OAR–2012–0650; FRL–9789–8]
SUPPLEMENTARY INFORMATION:
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ENVIRONMENTAL PROTECTION
AGENCY
Approval and Promulgation of Air
Quality Implementation Plans; Indiana;
Consent Decree Requirements
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to approve
a portion of Indiana’s construction
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In the
Final Rules section of this Federal
Register, EPA is approving the State’s
SIP submittal as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
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further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment. For additional information,
see the direct final rule which is located
in the Rules section of this Federal
Register.
Dated: March 4, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013–05953 Filed 3–14–13; 8:45 am]
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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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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
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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 previouslylisted 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
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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
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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
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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,
16451
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 disapproved in
this action
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Submittal(s) dated
NAAQS
December 11, 2007 .......................................................
April 3, 2008.
December 3, 2007 .........................................................
December 11, 2007.
October 1, 2009 .............................................................
October 26, 2011 ...........................................................
February 17, 2012 .........................................................
1997 PM2.5 .....................................................................
110(a)(2)(D)(i)(II).
1997 ozone ....................................................................
110(a)(2)(D)(i)(II).
2006 PM2.5 .....................................................................
2008 lead .......................................................................
2008 ozone ....................................................................
110(a)(2)(D)(i)(II).
110(a)(2)(D)(i)(II), (C), and (J).
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
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(CAA sections 171–193), or is required
in response to a finding of substantial
inadequacy as described in CAA section
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110(k)(5) starts a sanction clock. The
specific provisions in the submissions
we are proposing to disapprove, due to
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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
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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.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0406; FRL–9790–8]
Approval and Promulgation of
Implementation Plans; North Dakota;
Regional Haze State Implementation
Plan; Federal Implementation Plan for
Interstate Transport of Pollution
Affecting Visibility and Regional Haze;
Reconsideration
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: On April 6, 2012, EPA
published a final rule partially
approving and partially disapproving a
North Dakota State Implementation Plan
(SIP) submittal addressing regional haze
submitted by the Governor of North
Dakota on March 3, 2010, along with
SIP Supplement No. 1 submitted on July
27, 2010, and part of SIP Amendment
No. 1 submitted on July 28, 2011. The
Administrator subsequently received a
petition requesting EPA to reconsider
certain provisions in the final rule.
Specifically, the petition raised several
objections to EPA’s approval of the
State’s best available retrofit technology
(BART) emission limits for nitrogen
oxides (NOX) for Milton R. Young
Station Units 1 and 2 and Leland Olds
Station Unit 2, which are coal-fired
power plants in North Dakota.
In this action, EPA is initiating the
reconsideration of its approval of the
NOX BART limits for these units,
proposing to affirm its approval of these
limits, and requesting comment on this
proposal. We are not reconsidering or
requesting comment on any other
provisions of the final rule.
DATES: Comments: Comments must be
received on or before May 14, 2013
unless a public hearing is held, which
would extend the comment period (see
below).
Public Hearing: If anyone contacts
EPA requesting to speak at a public
hearing by April 8, 2013, a public
hearing will be held in May 2013 in
Bismarck, North Dakota. If a public
hearing is held, the record for this
action will remain open for 30 days after
the hearing to accommodate submittal
of information related to a public
hearing and any other comments on this
action, and EPA will publish a
document in the Federal Register
extending the comment period. For
more information on a public hearing
and requests to speak, see the General
Information section of this preamble.
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[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.
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Infrastructure element(s) proposed to be
Submittal(s) dated NAAQS disapproved in this action
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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).
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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]
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