Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revisions to Regulation for Control of Ozone Season Nitrogen Oxide Emissions, 43836-43841 [2018-18524]
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Federal Register / Vol. 83, No. 167 / Tuesday, August 28, 2018 / Proposed Rules
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• 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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: August 16, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018–18640 Filed 8–27–18; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0633; FRL–9982–
79—Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; Revisions to Regulation for
Control of Ozone Season Nitrogen
Oxide Emissions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
two state implementation plan (SIP)
revisions submitted by the State of West
Virginia. The revisions pertain to a West
Virginia regulation that established the
nitrogen oxides (NOX) ozone season
trading program under the Clean Air
Interstate Rule (CAIR), which
implemented requirements for NOX
reductions necessary to reduce
interstate transport of pollution. The
EPA-administered trading programs
under CAIR were discontinued upon the
implementation of the Cross-State Air
Pollution Rule (CSAPR), which was
promulgated by EPA to replace CAIR.
CSAPR established federal
implementation plans (FIPs) for 28
states, including West Virginia, and
applied to electric generating units
(EGUs) as defined. The SIP submittals
are comprised of revisions to the West
Virginia regulation that implemented
the CAIR ozone season NOX trading
program and that had previously been
included in the West Virginia SIP. The
revised West Virginia regulation
removed the CAIR ozone season NOX
trading program provisions, which also
addressed certain large non-electric
generating units (non-EGUs),
established new requirements for these
large non-EGUs, included a state-wide
NOX emissions cap, and recodified
certain other provisions that address the
NOX emission reductions required for
cement kilns and internal combustion
engines. This action is being taken
under the Clean Air Act (CAA).
DATES: Written comments must be
received on or before September 27,
2018.
SUMMARY:
Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2017- 0633 at https://
www.regulations.gov, or via email to
spielberger.susan@epa.gov. For
comments submitted at Regulations.gov,
follow the online instructions for
submitting comments. Once submitted,
ADDRESSES:
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comments cannot be edited or removed
from Regulations.gov. For either manner
of submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
confidential business information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the ‘‘For Further
Information Contact’’ section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Marilyn Powers, (215) 814–2308, or by
email at powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION: On July
13, 2016, the State of West Virginia,
through the West Virginia Department
of Environmental Protection (WVDEP),
submitted a revised version of West
Virginia Regulation 45CSR40—Control
of Ozone Season Nitrogen Oxides
Emissions for inclusion in the West
Virginia SIP. The revised 45CSR40
made the following changes—(1)
removed the provisions that
implemented the CAIR ozone season
trading program, (2) added new
requirements to address the NOX
reduction obligations for non-EGUs in
the State that were trading under the
CAIR ozone season trading program but
are no longer part of a trading program,
and (3) recodified the requirements that
applied to cement kilns and internal
combustion engines. On October 13,
2017, WVDEP provided a supplemental
SIP submission comprised of a
demonstration showing that NOX
emissions from applicable non-EGUs do
not exceed the West Virginia NOX
budget under the NOX SIP Call.
I. Background
On October 27, 1998 (63 FR 57356),
EPA finalized the ‘‘Finding of
Significant Contribution and
Rulemaking for Certain States in the
Ozone Transport Assessment Group
Region for Purposes of Reducing
Regional Transport of Ozone’’—
commonly called the NOX SIP Call. The
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NOX SIP Call was designed to mitigate
significant transport of NOX, one of the
precursors of ozone. EPA developed the
NOX Budget Trading Program, an
allowance trading program that states
could adopt to meet their obligations
under the NOX SIP Call. The NOX
Budget Trading Program allowed EGUs
greater than 25 megawatts and
industrial non-electric generating units,
such as boilers and turbines, with a
rated heat input greater than 250 million
British thermal units per hour (MMBtu/
hr), referred to as ‘‘large non-EGUs’’, to
participate in a regional NOX cap and
trade program. The NOX SIP call also
established NOX reduction requirements
for other non-EGUs, including cement
kilns and stationary internal combustion
(IC) engines. EPA has implementing
regulations for the NOX SIP Call at 40
CFR 51.121.
On May 12, 2005, 70 FR 25162, EPA
promulgated CAIR to address
transported emissions that significantly
contributed to downwind states’
nonattainment and maintenance of the
1997 ozone and fine particulate matter
(PM2.5) national ambient air quality
standards (NAAQS). CAIR required 28
states, including West Virginia, to
reduce emissions of NOX and sulfur
dioxide (SO2), which are precursors to
ozone and PM2.5. Under CAIR, EPA
established separate cap and trade
programs for annual NOX, ozone season
NOX, and annual SO2 emissions. On
April 28, 2006 (71 FR 25328), EPA also
promulgated FIPs requiring the EGUs in
each affected state, but not large nonEGUs, to participate in the CAIR trading
programs. States could comply with the
requirements of CAIR by either
remaining on the FIP, which applied
only to EGUs, or by submitting a CAIR
SIP revision that included as trading
sources EGUs and the non-EGUs that
formerly traded in the NOX Budget
Trading Program under the NOX SIP
Call. EPA discontinued administration
of the NOX Budget Trading Program in
2009 upon the start of the CAIR trading
programs.1 The NOX SIP Call
requirements continued to apply,
however, and EGUs that were formerly
trading under the NOX Budget Trading
Program continued to meet their NOX
SIP Call requirements under the
1 CAIR was subsequently vacated and remanded.
See North Carolina v. EPA, 531 F.3d 896 (DC Cir.
2008), modified by 550 F.3d 1176 (remanding
CAIR). CAIR was replaced with the Cross-State Air
Pollution Rule, or CSAPR (76 FR 48208, August 8,
2011), which, after legal challenges, was
implemented starting in January 2015. The NOX
Ozone Season Trading Program under CSAPR was
replaced in West Virginia and most other states by
a new trading program for ozone season NOX under
the CSAPR Update rule in January 2017 (81 FR
74504, October 26, 2016).
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generally more stringent requirements of
the CAIR ozone season trading program.
Large non-EGUs that were trading under
the NOX Budget Trading Program were
not addressed in the CAIR FIPs. States
therefore needed to assess their NOX SIP
Call requirements and take other
regulatory action as necessary to ensure
that their obligations for the large nonEGUs continued to be met. Under CAIR,
states had the option to include the nonEGUs as trading participants in the
regional CAIR ozone season trading
program either through a full CAIR SIP
or through an abbreviated CAIR SIP. In
either of these options, expansion of the
applicability to include the non-EGUs
and increasing the ozone season NOX
budget by the amount of the non-EGU
budget in 40 CFR part 97 Appendix C
of Subpart E effected inclusion of the
non-EGUs into the trading program.
Otherwise, states needed to assess their
NOX SIP Call requirements and take
other regulatory action as necessary to
ensure that their obligations for these
units continued to be met. West Virginia
chose to include the non-EGUs as CAIR
trading sources, and submitted, for
inclusion in the SIP Regulation
45CSR40 which consisted of provisions
that implemented the CAIR NOX ozone
season trading program, included the
large non-EGUs as trading sources, and
also included emission reduction
requirements for certain non-trading
non-EGUs (cement kilns and IC engines)
that were subject to the NOX SIP Call.
EPA approved Regulation 45CSR 40 into
the West Virginia SIP on August 4, 2009
(74 FR 38536).
The United States Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit) initially vacated CAIR in 2008,2
but ultimately remanded the rule to EPA
without vacatur to preserve the
environmental benefits provided by
CAIR.3 The ruling allowed CAIR to
remain in effect temporarily until a
replacement rule consistent with the
Court’s opinion was developed. While
EPA worked on developing a
replacement rule, the CAIR program
continued as planned with the NOX
annual and ozone season programs
beginning in 2009 and the SO2 annual
program beginning in 2010.
On August 8, 2011 (76 FR 48208),
acting on the D.C. Circuit’s remand, EPA
promulgated CSAPR to replace CAIR
and to address the interstate transport of
emissions contributing to nonattainment
and interfering with maintenance of the
two air quality standards covered by
2 North Carolina v. EPA, 531 F.3d 896 (DC Cir.
2008).
3 North Carolina v. EPA, 550 F.3d 1176 (DC Cir.
2008).
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43837
CAIR as well as the 2006 PM2.5 NAAQS.
The rule also contained provisions that
would sunset CAIR-related obligations
on a schedule coordinated with the
implementation of CSAPR compliance
requirements. CSAPR was to become
effective January 1, 2012; however, the
timing of CSAPR’s implementation was
delayed by litigation, and EPA began
implementing CSAPR on January 1,
2015.
Starting in January 2015, the CSAPR
FIP trading programs for annual NOX,
ozone season NOX and annual SO2 were
applicable in West Virginia. Thus, since
January 1, 2015, the provisions related
to implementation of the CAIR ozone
season trading program in West Virginia
regulation 45CSR40 have become
obsolete. The CSAPR FIP trading
programs applied only to EGUs and,
unlike CAIR, did not provide for
expansion of the ozone season trading
program to include the NOX SIP Call
non-EGUs. States, like West Virginia,
whose non-EGUs had previously traded
in the CAIR ozone season trading
program, were therefore required to
address the non-EGU reduction
requirements of the NOX SIP Call
outside of a regional trading program.4
On October 26, 2016 (81 FR 74504),
EPA finalized the CSAPR Update Rule
to address interstate transport of ozone
pollution with respect to the 2008 ozone
NAAQS, and issued FIPs that updated
the ozone season NOX budgets for 22
states, including West Virginia. Starting
in January 2017, the CSAPR Update
budgets were implemented via
establishment of a new CSAPR NOX
ozone season allowance trading program
that was established under the original
CSAPR. The CSAPR Update Rule
reinstates the option for States to allow
non-EGUs to participate in a regional
trading program. States wishing to do
this can at any time submit a SIP
revision that expands the CSAPR Ozone
Season NOX budget and applicability to
include large non-EGUs.
II. Summary of SIP Revision and EPA
Analysis
Regulation 45CSR40 was originally
adopted by WVDEP to implement the
ozone season trading program under
CAIR, which included as CAIR trading
sources EGUs and the non-EGUs that
had formerly been trading under the
NOX SIP Call trading program. As noted
previously, WVDEP consolidated all the
4 Subsequent to West Virginia’s July 13, 2016
submission, EPA finalized the CSAPR Update Rule
to address transport related to the 2008 ozone
NAAQS. It is noted that CSAPR Update included
flexibility for states to submit SIPs that expand the
CSAPR ozone season trading program to include the
large non-EGUs.
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NOX SIP Call and CAIR ozone season
requirements into 45CSR40, including
the requirements that apply to
stationary IC engines and cement
manufacturing kilns. The CSAPR FIPs
which replaced CAIR only applied to
EGUs, and, at the time West Virginia
developed its SIP submittal, states did
not have an option under CSAPR to
bring their non-EGUs into the CSAPR
NOX Ozone Season Trading Program.
So, while EGU compliance with CSAPR
satisfied their NOX SIP Call
requirements, West Virginia needed to
modify its ozone season NOX regulation
to address the NOX SIP Call
requirements for the large non-EGUs
that were formerly trading in the CAIR
NOX ozone season trading program. 40
CFR 51.121(f) sets forth alternatives for
states to address NOX SIP Call reduction
obligations for non-EGUs including (1)
imposing a NOX mass emissions cap on
each source, (2) imposing a NOX
emissions rate limit on each source and
assuming maximum operating capacity
for every such source for purposes of
estimating NOX mass emissions, or (3)
imposing other regulatory requirements
that the state has demonstrated to EPA
provide equivalent or greater assurance
that the state will comply with its ozone
season NOX budget.
The July 13, 2016 West Virginia SIP
submittal includes a modified 45CSR40
which removed the CAIR ozone season
trading program provisions, retained the
definitions, applicability, and other
provisions responding to the NOX SIP
Call, added new requirements to
address its NOX SIP Call obligations for
sources that were trading under CAIR
but are no longer part of a trading
program, and retained and recodified
the limits on NOX emissions that
applied to stationary IC engines and
cement kilns previously in the former
version of 45CSR40 (with a State
effective date of May 1, 2008) which
EPA had included in the West Virginia
SIP.
Removal of CAIR Ozone Season Trading
Program Requirements
Former Regulation 45CSR40 (State
effective date of May 1, 2008), which
was approved into the West Virginia
SIP, was originally adopted by WVDEP
to implement the ozone season trading
program under CAIR and to address
NOX SIP Call requirements. The July 13,
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2016 SIP submission (with revised
45CSR40, effective in West Virginia on
July 1, 2016) removed all the
requirements in sections 1 through 75
that pertained to the CAIR ozone season
trading program, but retained the
general provisions, definitions
(including references to continuous
emissions monitoring under 40 CFR part
75, subpart H), and applicability
provisions that applied to the West
Virginia regulated sources under the
NOX SIP Call. As the CAIR trading
program has been replaced by the
trading programs under CSAPR, as
described previously, these revisions
removing references to CAIR are
approvable for CAA 110(l) as the
provisions related to CAIR were moot as
CAIR was replaced by CSAPR and thus
CAIR no longer yielded reductions in
pollutants nor presently applied to any
sources. In addition, sources formerly
subject to CAIR are now subject to the
more stringent NOX and SO2 provisions
of CSAPR to which the EGU sources in
West Virginia are subject via a FIP. See
81 FR 74504.
Requirements for Non-EGUs Subject to
the NOX SIP Call Formerly Trading
Under CAIR
New sections 4 through 8 of 45CSR40
(effective July 1, 2016) established new
ozone season NOX requirements for the
large non-EGUs that were formerly
trading in the CAIR NOX ozone season
trading program. These requirements are
summarized as follows:
Section 4—Applicability requires the
owner or operator of a unit that has a
maximum heat input greater than 250
MMBtu/hr to comply with the ozone
season NOX emission limits,
monitoring, recordkeeping, and
reporting requirements established in
sections 5 and 6 of 45CSR40. This
section also specifically excludes any
unit that is already subject to the federal
CSAPR NOX Ozone Season Trading
Program via a FIP.
Section 5—Ozone Season NOX
Emission Limitation requires that an
owner or operator of affected units (see
section 4) limit ozone season NOX
emissions pursuant to specific limits
established in a permit issued under
West Virginia regulations 45CSR13,
45CSR14, or 45CSR19, or under a
consent order issued by the State,
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including any limits on operating time
during the ozone season.
Section 6—Monitoring,
Recordkeeping and Reporting
Requirements requires continuous
emissions monitoring, reporting, and
recording in accordance with 40 CFR
part 75, subpart H for the non-EGUs to
be used to determine compliance with
the requirements in section 5.
Section 7—Violation establishes
enforcement provisions in the event a
unit emits in excess of its ozone season
NOX emission limitations established
via section 5.
Section 8—Ozone Season NOX Budget
Demonstration establishes a NOX ozone
season budget of 2,184 tons for all
applicable units in the State. Subsection
8.2 requires submittal to EPA of a
demonstration showing that the sum of
NOX emissions from all affected units
does not exceed the ozone season NOX
budget, based on each unit’s permitted
limits or consent order limits operating
at maximum capacity (or at the
operational limit if required in the
permit or consent order). Subsection 8.3
requires that whenever a new unit meets
the applicability requirements under
section 4, the demonstration is required
to be revised to show continuing
compliance with the statewide NOX
budget.
The July 13, 2016 SIP revision
submittal did not include the
demonstration required under section
8.2 of 45CSR40. On October 11, 2017,
WVDEP submitted a supplemental SIP
revision consisting of such
demonstration showing that total ozone
season emissions from large non-EGUs
in the State subject to the NOX SIP Call
do not exceed the West Virginia nonEGU ozone season trading budget of
2,184 tons.5 The demonstration
identifies seven sources that meet the
applicability criteria for large non-EGUs
subject to NOX SIP Call requirements.
Table 1 in this proposed rulemaking
shows that with these limits at
maximum operating capacity, or at
permitted operating time restrictions if
applicable, the total NOX emissions
from these sources subject to the NOX
SIP Call are 941 tons, which is less than
50 percent of the West Virginia ozone
season NOX budget of 2,184 tons.
5 See 40 CFR part 97, Appendix C of Subpart E
for non-EGU trading budgets for affected states.
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43839
TABLE 1—TOTAL OZONE SEASON NOX EMISSIONS FROM LARGE NON-EGUS IN WEST VIRGINIA
Units
(boiler #)
Source
Appalachian Power Company, John E Amos ..................
Appalachian Power Company, Mountaineer ....................
Westlake Chemical, Natrium ............................................
Chemours Company, Belle ..............................................
Kentucky Power Company, Mitchell .................................
Union Carbide ...................................................................
Corporation, Institute ........................................................
Union Carbide Corporation, South Charleston ................
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6 See 67 FR 31733, 31735 (May 10, 2002). EPA
notes that the non-EGU budget amount adopted by
West Virginia in its NOX Budget Trading Program
regulations matches the budget amount separately
established for the state’s non-EGUs under a
different federal rule promulgated
contemporaneously with the NOX SIP Call pursuant
to CAA section 126. See 40 CFR part 97, subpart
E, appendix C.
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Ozone
season
operating
time (hrs)
642
600
600
876
876
876
AUX2
5
10
AUX1
16
17
26
27
600
999
275
663
350
350
352
353
........................
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Ozone
season
emissions
876
3,672
3,672
876
3,672
3,672
3,672
3,672
0.20 lb/mmBtu ....
0.20 lb/mmBtu ....
99.67 pounds per
hour (lb/hr).
99.67 lb/hr ..........
0.16 lb/mmBtu ....
0.20 lb/mmBtu ....
99.45 lb/hr ..........
.036 lb/mmBtu ....
.036 lb/mmBtu ....
70.4 lb/hr ............
70.6 lb/hr ............
44
293
101
44
23
23
130
130
........................
............................
941
Recodification of Previously SIPApproved Provisions
The previously SIP-approved section
90 of 45CSR40 (effective 200x) entitled
Ozone Season NOX Reduction
Requirements for Stationary Internal
Combustion Engines has been recodified
as section 9. Other than revisions to
cross referencing necessitated by the
recodification and removal of references
to the CAIR program, the provisions in
section 9 which were formerly in
section 90 are unchanged and include
the same ozone season NOX caps for
affected sources and compliance
requirements including a compliance
plan, monitoring, recordkeeping, and
reporting requirements for IC engines as
was in the regulation when EPA
previously approved 45CSR40 for the
West Virginia SIP.
Similarly, section 100 of 45CSR40
entitled Ozone Season NOX Reduction
Requirements for Emissions of NOX
from Cement Manufacturing Kilns has
been recodified as section 10. Other
than revisions to cross referencing
necessitated by the recodification, the
provisions in section 10 which were
formerly in section 100 for cement kilns
are unchanged and include the same
requirements for specific controls (or
reductions equivalent to that achieved
by the control) and compliance plan
requirements, and monitoring,
recordkeeping, and reporting
requirements for cement kilns as was in
the regulation when EPA previously
approved 45CSR40 for the West Virginia
SIP.
The changes West Virginia has made
to 45CSR40 are approvable under CAA
section 110 because—(1) CAIR has been
replaced by CSAPR and thus removal of
CAIR provisions is appropriate; (2) the
applicability provisions at section 4.1 of
45CSR40 cover all existing and new
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NOX emission
rate limit
AUX1
AUX3
AUX1
Total Ozone Season NOX (tons) ...............................
The October 11, 2017 West Virginia
supplemental SIP submission of an
initial demonstration shows that total
ozone season NOX emissions from nonEGUs in the State that are subject to the
NOX SIP Call do not exceed the West
Virginia ozone season budget of 2,184
tons for non-EGUs that the State
established in its SIP in 2002
responding to the NOX SIP Call.6 The
maximum potential ozone season NOX
emissions of 941 tons based on permit
limits shown in Table 1 for Appalachian
Power, Westlake Chemical, Kentucky
Power, and Union Carbide and the
Consent Order limits for Chemours is
less than 50 percent of the total West
Virginia NOX budget and leaves 1,245
tons in the budget available for new
units which may at a later date become
subject to NOX SIP Call requirements.
Whenever a new unit that meets the
applicability of section 4.1 (and thus is
also subject to the NOX SIP Call)
commences operation or an existing
unit becomes newly applicable, West
Virginia is required under subsection
8.3 of 45CSR40 to submit a revised
demonstration to EPA that shows
continuing compliance with the statewide emissions cap of 2,184 tons. EPA
finds West Virginia’s revised provisions
in 45CSR40 meet requirements for NOX
SIP Call in CAA (including section 110)
and 40 CFR 51.121 for the large non
EGUs.
Maximum
design heat
input
(mmBtu/hr)
56
53
44
NOX SIP Call non-EGUs not subject to
the current CSAPR trading program for
ozone season NOX emissions; (3) the
enforceable cap on collective ozone
season NOX emissions from covered
non-EGUs in section 8.1 of the State’s
rule does not exceed the non-EGU
emissions budget adopted by West
Virginia in its SIP responding to the
NOX SIP Call and identified in 40 CFR
part 97, subpart E, appendix C.; (4)
monitoring, recordkeeping and
reporting in accordance with 40 CFR
part 75 continue to be required for the
non-EGUs; (5) the cement kiln and IC
engine provisions are identical to
requirements previously applicable to
such sources in the West Virginia SIP
and are merely recodified; and (6) the
revised 45CSR40 generally addresses
the requirements for large non-EGUs for
the NOX SIP Call pursuant to 40 CFR
51.121. The SIP revision addresses
provisions in CAA section 110(l) for
revisions to a state’s SIP because it
maintains the NOX ozone season budget
originally established under the NOX
SIP Call and in the West Virginia SIP,
removes the obsolete CAIR provisions,
and recodifies other provisions
maintaining requirements already in the
SIP for cement kilns and IC engines.
Thus, EPA does not expect any emission
increases, or interference with
attainment or maintenance of the
NAAQS, reasonable further progress or
any other CAA requirements.
On February 8, 2018, WVDEP
provided a letter clarifying a provision
in the July 13, 2016 SIP submittal. The
letter is available in the docket for this
rulemaking and is available on
www.regulations.gov. Specifically,
subsection 4.1 of 45CSR40, which sets
forth applicability provisions, exempted
any unit that is already subject to the
CSAPR NOX Ozone Season Trading
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Federal Register / Vol. 83, No. 167 / Tuesday, August 28, 2018 / Proposed Rules
program under 40 CFR part 97 Subpart
BBBBB. The letter explains that when
West Virginia revised regulation
45CSR40, it cited to the CSAPR NOX
Ozone Season Trading Program that was
in effect at the time the rule was
finalized. Subsequent to WVDEP’s
submission of the SIP revision in 2016,
EPA finalized an update to CSAPR that
removed EGUs in West Virginia from
the original CSAPR trading program for
ozone season NOX emissions at 40 CFR
part 97, subpart BBBBB and instead
made the state’s EGUs subject to the
new CSAPR NOX Ozone Season Group
2 Trading Program at 40 CFR part 97,
subpart EEEEE. The February 8, 2018
letter clarifies that the West Virginia
regulation was intended to refer to
current provisions of CSAPR, and thus
is intended to refer to the updated
CSAPR provisions. The letter states that
West Virginia will work towards
revising 45CSR40 as expeditiously as
possible to conform the regulation to
refer to currently enforceable CSAPR
provisions and will submit the revised
45CSR40 as a SIP revision to EPA for
approval once the regulation correctly
refers to 40 CFR part 97, subpart
EEEEE.7 EPA finds 45CSR40 approvable
for the West Virginia SIP (despite this
inadvertent incorrect citation to CSAPR
using subpart BBBBB in lieu of subpart
EEEEE) as the revised regulation
addresses CAA requirements in section
110 and 40 CFR 51.121 for the NOX SIP
Call and for units subject to the NOX SIP
Call as discussed specifically above and
because West Virginia clarified its intent
to refer specifically to provisions of
CSAPR presently enforceable and its
intent to address the minor citation
cross reference expeditiously with a
future SIP revision submittal.
daltland on DSKBBV9HB2PROD with PROPOSALS
III. Proposed Action
EPA’s review of this material
indicates the July 13, 2016 SIP revision
submittal as supplemented on October
11, 2017 and clarified on February 8,
2018 is approvable. The 2016 SIP
submission as amended by the 2017
submission and clarified on February 8,
2018, requests EPA include the
amended version of 45CSR40 in the
West Virginia SIP. Amended regulation
45CSR40 removes the moot provisions
that implemented the CAIR NOX Ozone
Season Trading Program, establishes
new requirements to address the NOX
SIP Call obligations for large non-EGUs
in the State that were trading under
CAIR but are no longer part of a trading
7 West Virginia has drafted the revision to
45CSR40 that corrects the reference to CSAPR, and
expects to finalize the revision in its 2019
legislative session.
VerDate Sep<11>2014
16:30 Aug 27, 2018
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program, establishes an enforceable
statewide cap on ozone season NOX
emissions for these non-EGUs in
accordance with West Virginia’s state
budget under the NOX SIP Call, and
recodifies previously SIP-approved
provisions that apply to IC engines and
cement kilns. The non-EGUs are also
required to meet the monitoring,
recordkeeping, and reporting
requirements under 40 CFR part 75, as
required under 50 CFR 51.121. The
October 11, 2017 supplemental
submittal demonstrates that the total
NOX emissions from all affected nonEGUs in West Virginia are less than the
State cap previously established for
West Virginia. As the amended
regulation establishes a NOX emissions
cap equal to the amount of the West
Virginia NOX budget under the NOX SIP
Call as discussed in this proposal and
West Virginia has demonstrated that
emissions from non-EGUs are well
below the cap, there is no expected
emissions impact on any pollutant and
thus SIP revision is not expected to
interfere with reasonable further
progress, any NAAQS or any other CAA
requirement, therefore meeting the
requirements under section 110(l) of the
CAA. EPA is proposing to approve the
West Virginia SIP revision submitted on
July 13, 2016, as supplemented on
October 11, 2017, because the revised
45CSR40 addresses CAA requirements
in section 110 and 40 CFR 51.121 for the
NOX SIP Call and for units subject to the
NOX SIP Call. EPA is soliciting public
comments on the issues discussed in
this document. These comments will be
considered before taking final action.
IV. Incorporation by Reference
In this document, EPA is proposing to
include regulatory text in a final EPA
rule that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the revisions to West Virginia regulation
45CSR40—Control of Ozone Season
Nitrogen Oxides Emissions. EPA has
made, and will continue to make, these
materials generally available through
https://www.regulations.gov and at the
EPA Region III Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
V. 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,
PO 00000
Frm 00042
Fmt 4702
Sfmt 4702
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 and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• 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 action proposing
approval of revisions to West Virginia
regulation 45CSR40 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.
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List of Subjects in 40 CFR Part 52
daltland on DSKBBV9HB2PROD with PROPOSALS
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
VerDate Sep<11>2014
16:30 Aug 27, 2018
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Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 9, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2018–18524 Filed 8–27–18; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 83, Number 167 (Tuesday, August 28, 2018)]
[Proposed Rules]
[Pages 43836-43841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18524]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0633; FRL-9982-79--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Revisions to Regulation for Control of Ozone Season
Nitrogen Oxide Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve two state implementation plan (SIP) revisions submitted by the
State of West Virginia. The revisions pertain to a West Virginia
regulation that established the nitrogen oxides (NOX) ozone
season trading program under the Clean Air Interstate Rule (CAIR),
which implemented requirements for NOX reductions necessary
to reduce interstate transport of pollution. The EPA-administered
trading programs under CAIR were discontinued upon the implementation
of the Cross-State Air Pollution Rule (CSAPR), which was promulgated by
EPA to replace CAIR. CSAPR established federal implementation plans
(FIPs) for 28 states, including West Virginia, and applied to electric
generating units (EGUs) as defined. The SIP submittals are comprised of
revisions to the West Virginia regulation that implemented the CAIR
ozone season NOX trading program and that had previously
been included in the West Virginia SIP. The revised West Virginia
regulation removed the CAIR ozone season NOX trading program
provisions, which also addressed certain large non-electric generating
units (non-EGUs), established new requirements for these large non-
EGUs, included a state-wide NOX emissions cap, and
recodified certain other provisions that address the NOX
emission reductions required for cement kilns and internal combustion
engines. This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before September 27,
2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017- 0633 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the ``For Further Information Contact'' section. For the
full EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by
email at po[email protected].
SUPPLEMENTARY INFORMATION: On July 13, 2016, the State of West
Virginia, through the West Virginia Department of Environmental
Protection (WVDEP), submitted a revised version of West Virginia
Regulation 45CSR40--Control of Ozone Season Nitrogen Oxides Emissions
for inclusion in the West Virginia SIP. The revised 45CSR40 made the
following changes--(1) removed the provisions that implemented the CAIR
ozone season trading program, (2) added new requirements to address the
NOX reduction obligations for non-EGUs in the State that
were trading under the CAIR ozone season trading program but are no
longer part of a trading program, and (3) recodified the requirements
that applied to cement kilns and internal combustion engines. On
October 13, 2017, WVDEP provided a supplemental SIP submission
comprised of a demonstration showing that NOX emissions from
applicable non-EGUs do not exceed the West Virginia NOX
budget under the NOX SIP Call.
I. Background
On October 27, 1998 (63 FR 57356), EPA finalized the ``Finding of
Significant Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone''--commonly called the NOX SIP Call. The
[[Page 43837]]
NOX SIP Call was designed to mitigate significant transport
of NOX, one of the precursors of ozone. EPA developed the
NOX Budget Trading Program, an allowance trading program
that states could adopt to meet their obligations under the
NOX SIP Call. The NOX Budget Trading Program
allowed EGUs greater than 25 megawatts and industrial non-electric
generating units, such as boilers and turbines, with a rated heat input
greater than 250 million British thermal units per hour (MMBtu/hr),
referred to as ``large non-EGUs'', to participate in a regional
NOX cap and trade program. The NOX SIP call also
established NOX reduction requirements for other non-EGUs,
including cement kilns and stationary internal combustion (IC) engines.
EPA has implementing regulations for the NOX SIP Call at 40
CFR 51.121.
On May 12, 2005, 70 FR 25162, EPA promulgated CAIR to address
transported emissions that significantly contributed to downwind
states' nonattainment and maintenance of the 1997 ozone and fine
particulate matter (PM2.5) national ambient air quality
standards (NAAQS). CAIR required 28 states, including West Virginia, to
reduce emissions of NOX and sulfur dioxide (SO2),
which are precursors to ozone and PM2.5. Under CAIR, EPA
established separate cap and trade programs for annual NOX,
ozone season NOX, and annual SO2 emissions. On
April 28, 2006 (71 FR 25328), EPA also promulgated FIPs requiring the
EGUs in each affected state, but not large non-EGUs, to participate in
the CAIR trading programs. States could comply with the requirements of
CAIR by either remaining on the FIP, which applied only to EGUs, or by
submitting a CAIR SIP revision that included as trading sources EGUs
and the non-EGUs that formerly traded in the NOX Budget
Trading Program under the NOX SIP Call. EPA discontinued
administration of the NOX Budget Trading Program in 2009
upon the start of the CAIR trading programs.\1\ The NOX SIP
Call requirements continued to apply, however, and EGUs that were
formerly trading under the NOX Budget Trading Program
continued to meet their NOX SIP Call requirements under the
generally more stringent requirements of the CAIR ozone season trading
program. Large non-EGUs that were trading under the NOX
Budget Trading Program were not addressed in the CAIR FIPs. States
therefore needed to assess their NOX SIP Call requirements
and take other regulatory action as necessary to ensure that their
obligations for the large non-EGUs continued to be met. Under CAIR,
states had the option to include the non-EGUs as trading participants
in the regional CAIR ozone season trading program either through a full
CAIR SIP or through an abbreviated CAIR SIP. In either of these
options, expansion of the applicability to include the non-EGUs and
increasing the ozone season NOX budget by the amount of the
non-EGU budget in 40 CFR part 97 Appendix C of Subpart E effected
inclusion of the non-EGUs into the trading program. Otherwise, states
needed to assess their NOX SIP Call requirements and take
other regulatory action as necessary to ensure that their obligations
for these units continued to be met. West Virginia chose to include the
non-EGUs as CAIR trading sources, and submitted, for inclusion in the
SIP Regulation 45CSR40 which consisted of provisions that implemented
the CAIR NOX ozone season trading program, included the
large non-EGUs as trading sources, and also included emission reduction
requirements for certain non-trading non-EGUs (cement kilns and IC
engines) that were subject to the NOX SIP Call. EPA approved
Regulation 45CSR 40 into the West Virginia SIP on August 4, 2009 (74 FR
38536).
---------------------------------------------------------------------------
\1\ CAIR was subsequently vacated and remanded. See North
Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008), modified by 550 F.3d
1176 (remanding CAIR). CAIR was replaced with the Cross-State Air
Pollution Rule, or CSAPR (76 FR 48208, August 8, 2011), which, after
legal challenges, was implemented starting in January 2015. The
NOX Ozone Season Trading Program under CSAPR was replaced
in West Virginia and most other states by a new trading program for
ozone season NOX under the CSAPR Update rule in January
2017 (81 FR 74504, October 26, 2016).
---------------------------------------------------------------------------
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008,\2\ but
ultimately remanded the rule to EPA without vacatur to preserve the
environmental benefits provided by CAIR.\3\ The ruling allowed CAIR to
remain in effect temporarily until a replacement rule consistent with
the Court's opinion was developed. While EPA worked on developing a
replacement rule, the CAIR program continued as planned with the
NOX annual and ozone season programs beginning in 2009 and
the SO2 annual program beginning in 2010.
---------------------------------------------------------------------------
\2\ North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008).
\3\ North Carolina v. EPA, 550 F.3d 1176 (DC Cir. 2008).
---------------------------------------------------------------------------
On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's
remand, EPA promulgated CSAPR to replace CAIR and to address the
interstate transport of emissions contributing to nonattainment and
interfering with maintenance of the two air quality standards covered
by CAIR as well as the 2006 PM2.5 NAAQS. The rule also
contained provisions that would sunset CAIR-related obligations on a
schedule coordinated with the implementation of CSAPR compliance
requirements. CSAPR was to become effective January 1, 2012; however,
the timing of CSAPR's implementation was delayed by litigation, and EPA
began implementing CSAPR on January 1, 2015.
Starting in January 2015, the CSAPR FIP trading programs for annual
NOX, ozone season NOX and annual SO2
were applicable in West Virginia. Thus, since January 1, 2015, the
provisions related to implementation of the CAIR ozone season trading
program in West Virginia regulation 45CSR40 have become obsolete. The
CSAPR FIP trading programs applied only to EGUs and, unlike CAIR, did
not provide for expansion of the ozone season trading program to
include the NOX SIP Call non-EGUs. States, like West
Virginia, whose non-EGUs had previously traded in the CAIR ozone season
trading program, were therefore required to address the non-EGU
reduction requirements of the NOX SIP Call outside of a
regional trading program.\4\
---------------------------------------------------------------------------
\4\ Subsequent to West Virginia's July 13, 2016 submission, EPA
finalized the CSAPR Update Rule to address transport related to the
2008 ozone NAAQS. It is noted that CSAPR Update included flexibility
for states to submit SIPs that expand the CSAPR ozone season trading
program to include the large non-EGUs.
---------------------------------------------------------------------------
On October 26, 2016 (81 FR 74504), EPA finalized the CSAPR Update
Rule to address interstate transport of ozone pollution with respect to
the 2008 ozone NAAQS, and issued FIPs that updated the ozone season
NOX budgets for 22 states, including West Virginia. Starting
in January 2017, the CSAPR Update budgets were implemented via
establishment of a new CSAPR NOX ozone season allowance
trading program that was established under the original CSAPR. The
CSAPR Update Rule reinstates the option for States to allow non-EGUs to
participate in a regional trading program. States wishing to do this
can at any time submit a SIP revision that expands the CSAPR Ozone
Season NOX budget and applicability to include large non-
EGUs.
II. Summary of SIP Revision and EPA Analysis
Regulation 45CSR40 was originally adopted by WVDEP to implement the
ozone season trading program under CAIR, which included as CAIR trading
sources EGUs and the non-EGUs that had formerly been trading under the
NOX SIP Call trading program. As noted previously, WVDEP
consolidated all the
[[Page 43838]]
NOX SIP Call and CAIR ozone season requirements into
45CSR40, including the requirements that apply to stationary IC engines
and cement manufacturing kilns. The CSAPR FIPs which replaced CAIR only
applied to EGUs, and, at the time West Virginia developed its SIP
submittal, states did not have an option under CSAPR to bring their
non-EGUs into the CSAPR NOX Ozone Season Trading Program.
So, while EGU compliance with CSAPR satisfied their NOX SIP
Call requirements, West Virginia needed to modify its ozone season
NOX regulation to address the NOX SIP Call
requirements for the large non-EGUs that were formerly trading in the
CAIR NOX ozone season trading program. 40 CFR 51.121(f) sets
forth alternatives for states to address NOX SIP Call
reduction obligations for non-EGUs including (1) imposing a
NOX mass emissions cap on each source, (2) imposing a
NOX emissions rate limit on each source and assuming maximum
operating capacity for every such source for purposes of estimating
NOX mass emissions, or (3) imposing other regulatory
requirements that the state has demonstrated to EPA provide equivalent
or greater assurance that the state will comply with its ozone season
NOX budget.
The July 13, 2016 West Virginia SIP submittal includes a modified
45CSR40 which removed the CAIR ozone season trading program provisions,
retained the definitions, applicability, and other provisions
responding to the NOX SIP Call, added new requirements to
address its NOX SIP Call obligations for sources that were
trading under CAIR but are no longer part of a trading program, and
retained and recodified the limits on NOX emissions that
applied to stationary IC engines and cement kilns previously in the
former version of 45CSR40 (with a State effective date of May 1, 2008)
which EPA had included in the West Virginia SIP.
Removal of CAIR Ozone Season Trading Program Requirements
Former Regulation 45CSR40 (State effective date of May 1, 2008),
which was approved into the West Virginia SIP, was originally adopted
by WVDEP to implement the ozone season trading program under CAIR and
to address NOX SIP Call requirements. The July 13, 2016 SIP
submission (with revised 45CSR40, effective in West Virginia on July 1,
2016) removed all the requirements in sections 1 through 75 that
pertained to the CAIR ozone season trading program, but retained the
general provisions, definitions (including references to continuous
emissions monitoring under 40 CFR part 75, subpart H), and
applicability provisions that applied to the West Virginia regulated
sources under the NOX SIP Call. As the CAIR trading program
has been replaced by the trading programs under CSAPR, as described
previously, these revisions removing references to CAIR are approvable
for CAA 110(l) as the provisions related to CAIR were moot as CAIR was
replaced by CSAPR and thus CAIR no longer yielded reductions in
pollutants nor presently applied to any sources. In addition, sources
formerly subject to CAIR are now subject to the more stringent
NOX and SO2 provisions of CSAPR to which the EGU
sources in West Virginia are subject via a FIP. See 81 FR 74504.
Requirements for Non-EGUs Subject to the NOX SIP Call Formerly Trading
Under CAIR
New sections 4 through 8 of 45CSR40 (effective July 1, 2016)
established new ozone season NOX requirements for the large
non-EGUs that were formerly trading in the CAIR NOX ozone
season trading program. These requirements are summarized as follows:
Section 4--Applicability requires the owner or operator of a unit
that has a maximum heat input greater than 250 MMBtu/hr to comply with
the ozone season NOX emission limits, monitoring,
recordkeeping, and reporting requirements established in sections 5 and
6 of 45CSR40. This section also specifically excludes any unit that is
already subject to the federal CSAPR NOX Ozone Season
Trading Program via a FIP.
Section 5--Ozone Season NOX Emission Limitation requires that an
owner or operator of affected units (see section 4) limit ozone season
NOX emissions pursuant to specific limits established in a
permit issued under West Virginia regulations 45CSR13, 45CSR14, or
45CSR19, or under a consent order issued by the State, including any
limits on operating time during the ozone season.
Section 6--Monitoring, Recordkeeping and Reporting Requirements
requires continuous emissions monitoring, reporting, and recording in
accordance with 40 CFR part 75, subpart H for the non-EGUs to be used
to determine compliance with the requirements in section 5.
Section 7--Violation establishes enforcement provisions in the
event a unit emits in excess of its ozone season NOX
emission limitations established via section 5.
Section 8--Ozone Season NOX Budget Demonstration establishes a
NOX ozone season budget of 2,184 tons for all applicable
units in the State. Subsection 8.2 requires submittal to EPA of a
demonstration showing that the sum of NOX emissions from all
affected units does not exceed the ozone season NOX budget,
based on each unit's permitted limits or consent order limits operating
at maximum capacity (or at the operational limit if required in the
permit or consent order). Subsection 8.3 requires that whenever a new
unit meets the applicability requirements under section 4, the
demonstration is required to be revised to show continuing compliance
with the statewide NOX budget.
The July 13, 2016 SIP revision submittal did not include the
demonstration required under section 8.2 of 45CSR40. On October 11,
2017, WVDEP submitted a supplemental SIP revision consisting of such
demonstration showing that total ozone season emissions from large non-
EGUs in the State subject to the NOX SIP Call do not exceed
the West Virginia non-EGU ozone season trading budget of 2,184 tons.\5\
The demonstration identifies seven sources that meet the applicability
criteria for large non-EGUs subject to NOX SIP Call
requirements. Table 1 in this proposed rulemaking shows that with these
limits at maximum operating capacity, or at permitted operating time
restrictions if applicable, the total NOX emissions from
these sources subject to the NOX SIP Call are 941 tons,
which is less than 50 percent of the West Virginia ozone season
NOX budget of 2,184 tons.
---------------------------------------------------------------------------
\5\ See 40 CFR part 97, Appendix C of Subpart E for non-EGU
trading budgets for affected states.
[[Page 43839]]
Table 1--Total Ozone Season NOX Emissions From Large Non-EGUs in West Virginia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum design Ozone season
Source Units (boiler #) heat input operating time NOX emission rate limit Ozone season
(mmBtu/hr) (hrs) emissions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appalachian Power Company, John E Amos.. AUX1 642 876 0.20 lb/mmBtu................... 56
AUX3 600 876 0.20 lb/mmBtu................... 53
Appalachian Power Company, Mountaineer.. AUX1 600 876 99.67 pounds per hour (lb/hr)... 44
AUX2 600 876 99.67 lb/hr..................... 44
Westlake Chemical, Natrium.............. 5 999 3,672 0.16 lb/mmBtu................... 293
Chemours Company, Belle................. 10 275 3,672 0.20 lb/mmBtu................... 101
Kentucky Power Company, Mitchell........ AUX1 663 876 99.45 lb/hr..................... 44
Union Carbide........................... 16 350 3,672 .036 lb/mmBtu................... 23
Corporation, Institute.................. 17 350 3,672 .036 lb/mmBtu................... 23
Union Carbide Corporation, South 26 352 3,672 70.4 lb/hr...................... 130
Charleston.
27 353 3,672 70.6 lb/hr...................... 130
---------------------------------------------------------------------------------------------------------------
Total Ozone Season NOX (tons)....... ............................ .............. .............. ................................ 941
--------------------------------------------------------------------------------------------------------------------------------------------------------
The October 11, 2017 West Virginia supplemental SIP submission of
an initial demonstration shows that total ozone season NOX
emissions from non-EGUs in the State that are subject to the
NOX SIP Call do not exceed the West Virginia ozone season
budget of 2,184 tons for non-EGUs that the State established in its SIP
in 2002 responding to the NOX SIP Call.\6\ The maximum
potential ozone season NOX emissions of 941 tons based on
permit limits shown in Table 1 for Appalachian Power, Westlake
Chemical, Kentucky Power, and Union Carbide and the Consent Order
limits for Chemours is less than 50 percent of the total West Virginia
NOX budget and leaves 1,245 tons in the budget available for
new units which may at a later date become subject to NOX
SIP Call requirements. Whenever a new unit that meets the applicability
of section 4.1 (and thus is also subject to the NOX SIP
Call) commences operation or an existing unit becomes newly applicable,
West Virginia is required under subsection 8.3 of 45CSR40 to submit a
revised demonstration to EPA that shows continuing compliance with the
state-wide emissions cap of 2,184 tons. EPA finds West Virginia's
revised provisions in 45CSR40 meet requirements for NOX SIP
Call in CAA (including section 110) and 40 CFR 51.121 for the large non
EGUs.
---------------------------------------------------------------------------
\6\ See 67 FR 31733, 31735 (May 10, 2002). EPA notes that the
non-EGU budget amount adopted by West Virginia in its NOX
Budget Trading Program regulations matches the budget amount
separately established for the state's non-EGUs under a different
federal rule promulgated contemporaneously with the NOX
SIP Call pursuant to CAA section 126. See 40 CFR part 97, subpart E,
appendix C.
---------------------------------------------------------------------------
Recodification of Previously SIP-Approved Provisions
The previously SIP-approved section 90 of 45CSR40 (effective 200x)
entitled Ozone Season NOX Reduction Requirements for Stationary
Internal Combustion Engines has been recodified as section 9. Other
than revisions to cross referencing necessitated by the recodification
and removal of references to the CAIR program, the provisions in
section 9 which were formerly in section 90 are unchanged and include
the same ozone season NOX caps for affected sources and
compliance requirements including a compliance plan, monitoring,
recordkeeping, and reporting requirements for IC engines as was in the
regulation when EPA previously approved 45CSR40 for the West Virginia
SIP.
Similarly, section 100 of 45CSR40 entitled Ozone Season NOX
Reduction Requirements for Emissions of NOX from Cement Manufacturing
Kilns has been recodified as section 10. Other than revisions to cross
referencing necessitated by the recodification, the provisions in
section 10 which were formerly in section 100 for cement kilns are
unchanged and include the same requirements for specific controls (or
reductions equivalent to that achieved by the control) and compliance
plan requirements, and monitoring, recordkeeping, and reporting
requirements for cement kilns as was in the regulation when EPA
previously approved 45CSR40 for the West Virginia SIP.
The changes West Virginia has made to 45CSR40 are approvable under
CAA section 110 because--(1) CAIR has been replaced by CSAPR and thus
removal of CAIR provisions is appropriate; (2) the applicability
provisions at section 4.1 of 45CSR40 cover all existing and new
NOX SIP Call non-EGUs not subject to the current CSAPR
trading program for ozone season NOX emissions; (3) the
enforceable cap on collective ozone season NOX emissions
from covered non-EGUs in section 8.1 of the State's rule does not
exceed the non-EGU emissions budget adopted by West Virginia in its SIP
responding to the NOX SIP Call and identified in 40 CFR part
97, subpart E, appendix C.; (4) monitoring, recordkeeping and reporting
in accordance with 40 CFR part 75 continue to be required for the non-
EGUs; (5) the cement kiln and IC engine provisions are identical to
requirements previously applicable to such sources in the West Virginia
SIP and are merely recodified; and (6) the revised 45CSR40 generally
addresses the requirements for large non-EGUs for the NOX
SIP Call pursuant to 40 CFR 51.121. The SIP revision addresses
provisions in CAA section 110(l) for revisions to a state's SIP because
it maintains the NOX ozone season budget originally
established under the NOX SIP Call and in the West Virginia
SIP, removes the obsolete CAIR provisions, and recodifies other
provisions maintaining requirements already in the SIP for cement kilns
and IC engines. Thus, EPA does not expect any emission increases, or
interference with attainment or maintenance of the NAAQS, reasonable
further progress or any other CAA requirements.
On February 8, 2018, WVDEP provided a letter clarifying a provision
in the July 13, 2016 SIP submittal. The letter is available in the
docket for this rulemaking and is available on www.regulations.gov.
Specifically, subsection 4.1 of 45CSR40, which sets forth applicability
provisions, exempted any unit that is already subject to the CSAPR
NOX Ozone Season Trading
[[Page 43840]]
program under 40 CFR part 97 Subpart BBBBB. The letter explains that
when West Virginia revised regulation 45CSR40, it cited to the CSAPR
NOX Ozone Season Trading Program that was in effect at the
time the rule was finalized. Subsequent to WVDEP's submission of the
SIP revision in 2016, EPA finalized an update to CSAPR that removed
EGUs in West Virginia from the original CSAPR trading program for ozone
season NOX emissions at 40 CFR part 97, subpart BBBBB and
instead made the state's EGUs subject to the new CSAPR NOX
Ozone Season Group 2 Trading Program at 40 CFR part 97, subpart EEEEE.
The February 8, 2018 letter clarifies that the West Virginia regulation
was intended to refer to current provisions of CSAPR, and thus is
intended to refer to the updated CSAPR provisions. The letter states
that West Virginia will work towards revising 45CSR40 as expeditiously
as possible to conform the regulation to refer to currently enforceable
CSAPR provisions and will submit the revised 45CSR40 as a SIP revision
to EPA for approval once the regulation correctly refers to 40 CFR part
97, subpart EEEEE.\7\ EPA finds 45CSR40 approvable for the West
Virginia SIP (despite this inadvertent incorrect citation to CSAPR
using subpart BBBBB in lieu of subpart EEEEE) as the revised regulation
addresses CAA requirements in section 110 and 40 CFR 51.121 for the
NOX SIP Call and for units subject to the NOX SIP
Call as discussed specifically above and because West Virginia
clarified its intent to refer specifically to provisions of CSAPR
presently enforceable and its intent to address the minor citation
cross reference expeditiously with a future SIP revision submittal.
---------------------------------------------------------------------------
\7\ West Virginia has drafted the revision to 45CSR40 that
corrects the reference to CSAPR, and expects to finalize the
revision in its 2019 legislative session.
---------------------------------------------------------------------------
III. Proposed Action
EPA's review of this material indicates the July 13, 2016 SIP
revision submittal as supplemented on October 11, 2017 and clarified on
February 8, 2018 is approvable. The 2016 SIP submission as amended by
the 2017 submission and clarified on February 8, 2018, requests EPA
include the amended version of 45CSR40 in the West Virginia SIP.
Amended regulation 45CSR40 removes the moot provisions that implemented
the CAIR NOX Ozone Season Trading Program, establishes new
requirements to address the NOX SIP Call obligations for
large non-EGUs in the State that were trading under CAIR but are no
longer part of a trading program, establishes an enforceable statewide
cap on ozone season NOX emissions for these non-EGUs in
accordance with West Virginia's state budget under the NOX
SIP Call, and recodifies previously SIP-approved provisions that apply
to IC engines and cement kilns. The non-EGUs are also required to meet
the monitoring, recordkeeping, and reporting requirements under 40 CFR
part 75, as required under 50 CFR 51.121. The October 11, 2017
supplemental submittal demonstrates that the total NOX
emissions from all affected non-EGUs in West Virginia are less than the
State cap previously established for West Virginia. As the amended
regulation establishes a NOX emissions cap equal to the
amount of the West Virginia NOX budget under the
NOX SIP Call as discussed in this proposal and West Virginia
has demonstrated that emissions from non-EGUs are well below the cap,
there is no expected emissions impact on any pollutant and thus SIP
revision is not expected to interfere with reasonable further progress,
any NAAQS or any other CAA requirement, therefore meeting the
requirements under section 110(l) of the CAA. EPA is proposing to
approve the West Virginia SIP revision submitted on July 13, 2016, as
supplemented on October 11, 2017, because the revised 45CSR40 addresses
CAA requirements in section 110 and 40 CFR 51.121 for the
NOX SIP Call and for units subject to the NOX SIP
Call. EPA is soliciting public comments on the issues discussed in this
document. These comments will be considered before taking final action.
IV. Incorporation by Reference
In this document, EPA is proposing to include regulatory text in a
final EPA rule that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the revisions to West Virginia regulation 45CSR40--Control of
Ozone Season Nitrogen Oxides Emissions. EPA has made, and will continue
to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact
the person identified in the For Further Information Contact section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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 action proposing approval of revisions to West
Virginia regulation 45CSR40 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.
[[Page 43841]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 9, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2018-18524 Filed 8-27-18; 8:45 am]
BILLING CODE 6560-50-P
