Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality, 48716-48719 [2018-20966]
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Federal Register / Vol. 83, No. 188 / Thursday, September 27, 2018 / Rules and Regulations
Department of Transportation, and the
U.S. Department of Transportation are
required to use the provisions of the
Missoula PM10 LMP for future
transportation conformity
determinations for projects in the
Missoula PM10 nonattainment area.
Please refer to 40 CFR 81.327 for a
description of the nonattainment area
boundary. On the effective date of this
adequacy determination, the previouslyapproved PM10 MVEB of 16,119 pounds
per day of PM104 for the Missoula PM10
NAAQS nonattainment area will no
longer be applicable for transportation
conformity purposes.
Please note that our adequacy review
of the LMP for transportation
conformity is separate from our future
rulemaking action on the Missoula PM10
redesignation request and LMP SIP
revision and should not be used to
prejudge our ultimate approval or
disapproval of that SIP revision. Even if
we find the Missoula PM10 LMP
adequate for transportation conformity
purposes now, we may later find it
necessary to disapprove the SIP
revision. Should this situation arise, we
would revisit our adequacy finding.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 14, 2018.
Douglas Benevento,
Regional Administrator, EPA Region 8.
[FR Doc. 2018–20446 Filed 9–26–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0502; FRL–9984–
48—Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; Permits for Construction and
Major Modification of Major Stationary
Sources for the Prevention of
Significant Deterioration of Air Quality
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the State of West Virginia.
This revision pertains to West Virginia’s
Prevention of Significant Deterioration
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SUMMARY:
4 The PM
10 MVEB was originally derived from the
motor vehicle source category of the emissions
inventory for the Missoula PM10 nonattainment
area; see the EPA ’s SIP approvals of December 13,
1994 (59 FR 64133) and August 30, 1995 (60 FR
45051.)
VerDate Sep<11>2014
16:04 Sep 26, 2018
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(PSD) program. This action is being
taken under the Clean Air Act (CAA).
DATES: This final rule is effective on
October 29, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2017–0502. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On July 5, 2018 (83 FR 31348), EPA
published a notice of proposed
rulemaking (NPRM) for the State of
West Virginia. In the NPRM, EPA
proposed approval of a revision to the
PSD regulations found at title 45,
chapter 14 of the Code of State Rules
(CSR) as a revision to the West Virginia
SIP. The formal SIP revision was
submitted by West Virginia Department
of Environmental Protection (WVDEP)
on behalf of the State of West Virginia
on June 6, 2017.
WVDEP’s June 6, 2017 SIP submittal
included a number of revisions to West
Virginia’s PSD regulations under
45CSR14. The revisions were largely
non-substantive and administrative in
nature. However, as discussed in
subsequent sections of this notice,
WVDEP’s SIP submittal also contained
revisions to PSD provisions relating to
the regulation of greenhouse gases
(GHGs).
In a June 3, 2010 final rulemaking
action, EPA promulgated regulations
known as ‘‘the Tailoring Rule,’’ which
phased in permitting requirements for
GHG emissions from stationary sources
under the CAA PSD and title V
permitting programs. See 75 FR 31514.
For Step 1 of the Tailoring Rule, which
began on January 2, 2011, PSD or title
V requirements applied to sources of
GHG emissions only if the sources were
subject to PSD or title V ‘‘anyway’’ due
to their emissions of non-GHG
pollutants. These sources are referred to
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as ‘‘anyway sources.’’ Step 2 of the
Tailoring Rule, which began on July 1,
2011, applied the PSD and title V
permitting requirements under the CAA
to sources that were classified as major,
and, thus, required to obtain a permit,
based solely on their potential GHG
emissions. Step 2 also applied to
modifications of otherwise major
sources that required a PSD permit
because they increased only GHGs
above applicable levels in the EPA
regulations.
On June 23, 2014, the United States
Supreme Court, in Utility Air Regulatory
Group (UARG) v. Environmental
Protection Agency,1 issued a decision
addressing the Tailoring Rule and the
application of PSD permitting
requirements to GHG emissions. The
Supreme Court said that the EPA may
not treat GHGs as an air pollutant for
purposes of determining whether a
source is a major source required to
obtain a PSD permit. The Court also said
that the EPA could continue to require
that PSD permits, otherwise required
based on emissions of pollutants other
than GHGs, contain limitations on GHG
emissions based on the application of
Best Available Control Technology
(BACT). The Supreme Court decision
effectively upheld PSD permitting
requirements for GHG emissions under
Step 1 of the Tailoring Rule for ‘‘anyway
sources’’ and invalidated PSD
permitting requirements for Step 2
sources.
In accordance with the Supreme
Court decision, on April 10, 2015, the
U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) issued
an amended judgment vacating the
regulations that implemented Step 2 of
the Tailoring Rule, but not the
regulations that implement Step 1 of the
Tailoring Rule.2 The amended judgment
preserves, without the need for
additional rulemaking by the EPA, the
application of the BACT requirement to
GHG emissions from sources that are
required to obtain a PSD permit based
on emissions of pollutants other than
GHGs (i.e., the ‘‘anyway’’ sources). The
D.C. Circuit’s judgment vacated the
regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ‘‘to
the extent they require a stationary
source to obtain a PSD permit if
greenhouse gases are the only pollutant
(i) that the source emits or has the
potential to emit above the applicable
major source thresholds, or (ii) for
1 See
134 S.Ct. 2427.
for Responsible Regulation v. EPA,
D.C. Cir., No. 09–1322, 06/26/20, judgment entered
for No. 09–1322 on 04/10/2015.
2 Coalition
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which there is a significant emissions
increase from a modification.’’ 3
In response to these court decisions,
EPA took final action on August 19,
2015 to remove the vacated elements
from the federal PSD program. See 80
FR 50199. As discussed further in
Section II of this notice, WVDEP’s June
6, 2017 submittal included revisions
enacted in order to make WVDEP’s PSD
program consistent with the federal
program.
are included in the docket for this
action. However, the comments did not
concern any of the specific issues raised
in the NPR, nor did they address EPA’s
rationale for the proposed approval of
WVDEP’s submittal. Therefore, EPA is
not addressing them here.
II. Summary of SIP Revision and EPA
Analysis
WVDEP’s June 6, 2017 submittal
included revisions to the definition of
‘‘subject to regulation’’ at subdivision
2.80 of 45–14–2. Specifically,
subdivisions 2.80.e, 2.80.f, and 2.80.g
were deleted in their entirety. These
subdivisions were the mechanism
through which WVDEP implemented
the Tailoring Rule Step 2 provisions
which were vacated and revised by EPA
as a result of the UARG v. EPA decision
discussed in Section I of this notice.
WVDEP’s revised definition of ‘‘subject
to regulation’’ is consistent with the
federal definition at 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v), and
ensures that the preconstruction
permitting requirements of WVDEP’s
PSD program will be applied to GHG
sources in a manner consistent with the
Supreme Court decision in UARG v.
EPA. Further, EPA finds that these
deletions are in accordance with section
110(l) of the CAA because they will not
interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
applicable CAA requirement.
In addition to the previously
discussed revisions, WVDEP’s June 6,
2017 submittal included a number of
non-substantive, clarifying or
administrative revisions. These include
the filing date and effective date at
subdivisions 45–14–1.3 and 45–14–1.4,
and the removal of references to the
deleted subdivisions discussed in
Section II.A of this notice. WVDEP
provided an underline/strikeout version
of 45CSR14 so that all of the revisions
can be tracked. A copy of this is
included in the docket for today’s
action.
Other specific requirements of West
Virginia’s June 6, 2017 submittal and
the rationale for EPA’s proposed action
are explained in the NPR and will not
be restated here.
V. Incorporation by Reference
III. Public Comments
EPA received one set of comments on
the July 5, 2018 NPR. These comments
3 Id.
VerDate Sep<11>2014
IV. Final Action
EPA is approving WVDEP’s June 6,
2017 submittal as a revision to the West
Virginia SIP.
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of the West Virginia rules
regarding definitions and permitting
requirements discussed in Section II of
this preamble. EPA has made, and will
continue to make, these materials
generally available through
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).
Therefore, these materials have been
approved by EPA for inclusion in the
SIP, have been incorporated by
reference by EPA into that plan, are
fully federally enforceable under
sections 110 and 113 of the CAA as of
the effective date of the final rulemaking
of EPA’s approval, and will be
incorporated by reference in the next
update to the SIP compilation.4
VI. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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
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16:04 Sep 26, 2018
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FR 27968 (May 22, 1997).
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48717
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 rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
B. Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
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Federal Register / Vol. 83, No. 188 / Thursday, September 27, 2018 / Rules and Regulations
enforce its requirements. (See section
307(b)(2).)
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by November 26, 2018. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action.
This action pertaining to West
Virginia’s PSD program may not be
challenged later in proceedings to
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
List of Subjects in 40 CFR Part 52
1. The authority citation for part 52
continues to read as follows:
■
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Subpart XX—West Virginia
2. In § 52.2520, the table entitled
‘‘EPA-Approved Regulations in the West
Virginia SIP’’ in paragraph (c) is
amended by revising the entries for
sections 45–14–1 through 45–14–21,
45–14–25, and 45–14–26 to read as
follows:
■
Dated: September 10, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
§ 52.2520
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP
State citation
[Chapter 16–20 or
45 CSR]
*
*
[45CSR] Series 1
*
*
6/1/17
Section 45–14–2 ....
Definitions ......................................................
6/1/17
Section 45–14–3 ....
Applicability ....................................................
6/1/17
Section 45–14–4 ....
Ambient Air Quality Increments and Ceilings
6/1/17
Section 45–14–5 ....
Area Classification .........................................
6/1/17
Section 45–14–6 ....
6/1/17
Section 45–14–10 ..
Prohibition of Dispersion Enhancement
Techniques.
Registration, Report and Permit Requirements for Major Stationary Sources and
Major Modifications.
Requirements Relating to Control Technology.
Requirements Relating to the Source’s Impact on Air Quality.
Modeling Requirements .................................
Section 45–14–11 ..
Air Quality Monitoring Requirements ............
6/1/17
Section 45–14–12 ..
Additional Impacts Analysis Requirements ...
6/1/17
Section 45–14–13 ..
6/1/17
Section 45–14–15 ..
Additional Requirements and Variances for
Source Impacting Federal Class 1 Areas.
Procedures for Sources Employing Innovative Control Technology.
Exclusions From Increment Consumption ....
Section 45–14–16 ..
Specific Exemptions ......................................
6/1/17
Section 45–14–17 ..
Public Review Procedures ............................
6/1/17
Section 45–14–18 ..
Public Meetings .............................................
6/1/17
Section 45–14–19 ..
Permit Transfer, Cancellation and Responsibility.
6/1/17
Section 45–14–9 ....
Section 45–14–14 ..
VerDate Sep<11>2014
*
*
Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of
Significant Deterioration
General ..........................................................
Section 45–14–8 ....
Additional explanation/
citation at
40 CFR 52.2565
EPA approval date
*
Section 45–14–1 ....
Section 45–14–7 ....
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State
effective
date
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Administrative changes.
Administrative changes; revised definition of ‘‘subject to
regulation’’.
New state effective date.
New state effective date.
New state effective date.
New state effective date.
Administrative changes.
Administrative changes.
Administrative changes.
New state effective date.
Administrative changes.
New state effective date.
Administrative changes.
Administrative changes.
Administrative changes.
Administrative changes.
Administrative changes.
New state effective date.
Administrative changes.
48719
Federal Register / Vol. 83, No. 188 / Thursday, September 27, 2018 / Rules and Regulations
EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP—Continued
State citation
[Chapter 16–20 or
45 CSR]
Title/subject
State
effective
date
Section 45–14–20 ..
Disposition of Permits .......................................
6/1/17
Section 45–14–21 ..
Conflict with Other Permitting Rules ................
6/1/17
Section 45–14–25 ..
Actual PALs ......................................................
6/1/17
Section 45–14–26 ..
Inconsistency Between Rules ...........................
6/1/17
*
*
*
*
*
*
*
*
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 64
[Docket ID FEMA–2018–0002; Internal
Agency Docket No. FEMA–8549]
Suspension of Community Eligibility
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This rule identifies
communities where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP) that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur and
a notice of this will be provided by
publication in the Federal Register on a
subsequent date. Also, information
identifying the current participation
status of a community can be obtained
from FEMA’s Community Status Book
(CSB). The CSB is available at https://
www.fema.gov/national-floodinsurance-program-community-statusbook.
daltland on DSKBBV9HB2PROD with RULES
SUMMARY:
The effective date of each
community’s scheduled suspension is
the third date (‘‘Susp.’’) listed in the
third column of the following tables.
DATES:
VerDate Sep<11>2014
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9/27/2018 [Insert Federal
Register citation].
9/27/2018 [Insert Federal
Register citation].
9/27/2018 [Insert Federal
Register citation].
9/27/2018 [Insert Federal
Register citation].
*
*
If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact Adrienne L.
Sheldon, PE, CFM, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 400 C
Street SW, Washington, DC 20472, (202)
212–3966.
SUPPLEMENTARY INFORMATION: The NFIP
enables property owners to purchase
Federal flood insurance that is not
otherwise generally available from
private insurers. In return, communities
agree to adopt and administer local
floodplain management measures aimed
at protecting lives and new construction
from future flooding. Section 1315 of
the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4022,
prohibits the sale of NFIP flood
insurance unless an appropriate public
body adopts adequate floodplain
management measures with effective
enforcement measures. The
communities listed in this document no
longer meet that statutory requirement
for compliance with program
regulations, 44 CFR part 59.
Accordingly, the communities will be
suspended on the effective date in the
third column. As of that date, flood
insurance will no longer be available in
the community. We recognize that some
of these communities may adopt and
submit the required documentation of
legally enforceable floodplain
management measures after this rule is
published but prior to the actual
suspension date. These communities
will not be suspended and will continue
to be eligible for the sale of NFIP flood
insurance. A notice withdrawing the
suspension of such communities will be
published in the Federal Register.
In addition, FEMA publishes a Flood
Insurance Rate Map (FIRM) that
identifies the Special Flood Hazard
Areas (SFHAs) in these communities.
The date of the FIRM, if one has been
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2018–20966 Filed 9–26–18; 8:45 am]
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Additional explanation/citation
at 40 CFR 52.2565
EPA approval date
New state effective date.
Administrative changes.
Administrative changes.
Administrative changes.
*
*
published, is indicated in the fourth
column of the table. No direct Federal
financial assistance (except assistance
pursuant to the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act not in connection with a
flood) may be provided for construction
or acquisition of buildings in identified
SFHAs for communities not
participating in the NFIP and identified
for more than a year on FEMA’s initial
FIRM for the community as having
flood-prone areas (section 202(a) of the
Flood Disaster Protection Act of 1973,
42 U.S.C. 4106(a), as amended). This
prohibition against certain types of
Federal assistance becomes effective for
the communities listed on the date
shown in the last column. The
Administrator finds that notice and
public comment procedures under 5
U.S.C. 553(b), are impracticable and
unnecessary because communities listed
in this final rule have been adequately
notified.
Each community receives 6-month,
90-day, and 30-day notification letters
addressed to the Chief Executive Officer
stating that the community will be
suspended unless the required
floodplain management measures are
met prior to the effective suspension
date. Since these notifications were
made, this final rule may take effect
within less than 30 days.
National Environmental Policy Act.
FEMA has determined that the
community suspension(s) included in
this rule is a non-discretionary action
and therefore the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) does not apply.
Regulatory Flexibility Act. The
Administrator has determined that this
rule is exempt from the requirements of
the Regulatory Flexibility Act because
the National Flood Insurance Act of
1968, as amended, Section 1315, 42
U.S.C. 4022, prohibits flood insurance
coverage unless an appropriate public
body adopts adequate floodplain
management measures with effective
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]]>Agencies
[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Rules and Regulations]
[Pages 48716-48719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20966]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0502; FRL-9984-48--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Permits for Construction and Major Modification of Major
Stationary Sources for the Prevention of Significant Deterioration of
Air Quality
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the State of West
Virginia. This revision pertains to West Virginia's Prevention of
Significant Deterioration (PSD) program. This action is being taken
under the Clean Air Act (CAA).
DATES: This final rule is effective on October 29, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0502. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
https://www.regulations.gov, or please contact the person identified in
the For Further Information Contact section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On July 5, 2018 (83 FR 31348), EPA published a notice of proposed
rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA
proposed approval of a revision to the PSD regulations found at title
45, chapter 14 of the Code of State Rules (CSR) as a revision to the
West Virginia SIP. The formal SIP revision was submitted by West
Virginia Department of Environmental Protection (WVDEP) on behalf of
the State of West Virginia on June 6, 2017.
WVDEP's June 6, 2017 SIP submittal included a number of revisions
to West Virginia's PSD regulations under 45CSR14. The revisions were
largely non-substantive and administrative in nature. However, as
discussed in subsequent sections of this notice, WVDEP's SIP submittal
also contained revisions to PSD provisions relating to the regulation
of greenhouse gases (GHGs).
In a June 3, 2010 final rulemaking action, EPA promulgated
regulations known as ``the Tailoring Rule,'' which phased in permitting
requirements for GHG emissions from stationary sources under the CAA
PSD and title V permitting programs. See 75 FR 31514. For Step 1 of the
Tailoring Rule, which began on January 2, 2011, PSD or title V
requirements applied to sources of GHG emissions only if the sources
were subject to PSD or title V ``anyway'' due to their emissions of
non-GHG pollutants. These sources are referred to as ``anyway
sources.'' Step 2 of the Tailoring Rule, which began on July 1, 2011,
applied the PSD and title V permitting requirements under the CAA to
sources that were classified as major, and, thus, required to obtain a
permit, based solely on their potential GHG emissions. Step 2 also
applied to modifications of otherwise major sources that required a PSD
permit because they increased only GHGs above applicable levels in the
EPA regulations.
On June 23, 2014, the United States Supreme Court, in Utility Air
Regulatory Group (UARG) v. Environmental Protection Agency,\1\ issued a
decision addressing the Tailoring Rule and the application of PSD
permitting requirements to GHG emissions. The Supreme Court said that
the EPA may not treat GHGs as an air pollutant for purposes of
determining whether a source is a major source required to obtain a PSD
permit. The Court also said that the EPA could continue to require that
PSD permits, otherwise required based on emissions of pollutants other
than GHGs, contain limitations on GHG emissions based on the
application of Best Available Control Technology (BACT). The Supreme
Court decision effectively upheld PSD permitting requirements for GHG
emissions under Step 1 of the Tailoring Rule for ``anyway sources'' and
invalidated PSD permitting requirements for Step 2 sources.
---------------------------------------------------------------------------
\1\ See 134 S.Ct. 2427.
---------------------------------------------------------------------------
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the Tailoring Rule, but not the regulations that
implement Step 1 of the Tailoring Rule.\2\ The amended judgment
preserves, without the need for additional rulemaking by the EPA, the
application of the BACT requirement to GHG emissions from sources that
are required to obtain a PSD permit based on emissions of pollutants
other than GHGs (i.e., the ``anyway'' sources). The D.C. Circuit's
judgment vacated the regulations at issue in the litigation, including
40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary
source to obtain a PSD permit if greenhouse gases are the only
pollutant (i) that the source emits or has the potential to emit above
the applicable major source thresholds, or (ii) for
[[Page 48717]]
which there is a significant emissions increase from a modification.''
\3\
---------------------------------------------------------------------------
\2\ Coalition for Responsible Regulation v. EPA, D.C. Cir., No.
09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015.
\3\ Id.
---------------------------------------------------------------------------
In response to these court decisions, EPA took final action on
August 19, 2015 to remove the vacated elements from the federal PSD
program. See 80 FR 50199. As discussed further in Section II of this
notice, WVDEP's June 6, 2017 submittal included revisions enacted in
order to make WVDEP's PSD program consistent with the federal program.
II. Summary of SIP Revision and EPA Analysis
WVDEP's June 6, 2017 submittal included revisions to the definition
of ``subject to regulation'' at subdivision 2.80 of 45-14-2.
Specifically, subdivisions 2.80.e, 2.80.f, and 2.80.g were deleted in
their entirety. These subdivisions were the mechanism through which
WVDEP implemented the Tailoring Rule Step 2 provisions which were
vacated and revised by EPA as a result of the UARG v. EPA decision
discussed in Section I of this notice. WVDEP's revised definition of
``subject to regulation'' is consistent with the federal definition at
40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), and ensures that the
preconstruction permitting requirements of WVDEP's PSD program will be
applied to GHG sources in a manner consistent with the Supreme Court
decision in UARG v. EPA. Further, EPA finds that these deletions are in
accordance with section 110(l) of the CAA because they will not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable CAA requirement.
In addition to the previously discussed revisions, WVDEP's June 6,
2017 submittal included a number of non-substantive, clarifying or
administrative revisions. These include the filing date and effective
date at subdivisions 45-14-1.3 and 45-14-1.4, and the removal of
references to the deleted subdivisions discussed in Section II.A of
this notice. WVDEP provided an underline/strikeout version of 45CSR14
so that all of the revisions can be tracked. A copy of this is included
in the docket for today's action.
Other specific requirements of West Virginia's June 6, 2017
submittal and the rationale for EPA's proposed action are explained in
the NPR and will not be restated here.
III. Public Comments
EPA received one set of comments on the July 5, 2018 NPR. These
comments are included in the docket for this action. However, the
comments did not concern any of the specific issues raised in the NPR,
nor did they address EPA's rationale for the proposed approval of
WVDEP's submittal. Therefore, EPA is not addressing them here.
IV. Final Action
EPA is approving WVDEP's June 6, 2017 submittal as a revision to
the West Virginia SIP.
V. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the West
Virginia rules regarding definitions and permitting requirements
discussed in Section II of this preamble. EPA has made, and will
continue to make, these materials generally available through
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). Therefore, these materials have
been approved by EPA for inclusion in the SIP, have been incorporated
by reference by EPA into that plan, are fully federally enforceable
under sections 110 and 113 of the CAA as of the effective date of the
final rulemaking of EPA's approval, and will be incorporated by
reference in the next update to the SIP compilation.\4\
---------------------------------------------------------------------------
\4\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VI. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it
[[Page 48718]]
is published in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 26, 2018. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action.
This action pertaining to West Virginia's PSD program may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 10, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
0
2. In Sec. 52.2520, the table entitled ``EPA-Approved Regulations in
the West Virginia SIP'' in paragraph (c) is amended by revising the
entries for sections 45-14-1 through 45-14-21, 45-14-25, and 45-14-26
to read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the West Virginia SIP
----------------------------------------------------------------------------------------------------------------
Additional
State citation [Chapter 16-20 State explanation/
or 45 CSR] Title/subject effective EPA approval date citation at 40 CFR
date 52.2565
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[45CSR] Series 1 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution
for the Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------
Section 45-14-1............... General.............. 6/1/17 9/27/2018 [Insert Administrative
Federal Register changes.
citation].
Section 45-14-2............... Definitions.......... 6/1/17 9/27/2018 [Insert Administrative
Federal Register changes; revised
citation]. definition of
``subject to
regulation''.
Section 45-14-3............... Applicability........ 6/1/17 9/27/2018 [Insert New state effective
Federal Register date.
citation].
Section 45-14-4............... Ambient Air Quality 6/1/17 9/27/2018 [Insert New state effective
Increments and Federal Register date.
Ceilings. citation].
Section 45-14-5............... Area Classification.. 6/1/17 9/27/2018 [Insert New state effective
Federal Register date.
citation].
Section 45-14-6............... Prohibition of 6/1/17 9/27/2018 [Insert New state effective
Dispersion Federal Register date.
Enhancement citation].
Techniques.
Section 45-14-7............... Registration, Report 6/1/17 9/27/2018 [Insert Administrative
and Permit Federal Register changes.
Requirements for citation].
Major Stationary
Sources and Major
Modifications.
Section 45-14-8............... Requirements Relating 6/1/17 9/27/2018 [Insert Administrative
to Control Federal Register changes.
Technology. citation].
Section 45-14-9............... Requirements Relating 6/1/17 9/27/2018 [Insert Administrative
to the Source's Federal Register changes.
Impact on Air citation].
Quality.
Section 45-14-10.............. Modeling Requirements 6/1/17 9/27/2018 [Insert New state effective
Federal Register date.
citation].
Section 45-14-11.............. Air Quality 6/1/17 9/27/2018 [Insert Administrative
Monitoring Federal Register changes.
Requirements. citation].
Section 45-14-12.............. Additional Impacts 6/1/17 9/27/2018 [Insert New state effective
Analysis Federal Register date.
Requirements. citation].
Section 45-14-13.............. Additional 6/1/17 9/27/2018 [Insert Administrative
Requirements and Federal Register changes.
Variances for Source citation].
Impacting Federal
Class 1 Areas.
Section 45-14-14.............. Procedures for 6/1/17 9/27/2018 [Insert Administrative
Sources Employing Federal Register changes.
Innovative Control citation].
Technology.
Section 45-14-15.............. Exclusions From 6/1/17 9/27/2018 [Insert Administrative
Increment Federal Register changes.
Consumption. citation].
Section 45-14-16.............. Specific Exemptions.. 6/1/17 9/27/2018 [Insert Administrative
Federal Register changes.
citation].
Section 45-14-17.............. Public Review 6/1/17 9/27/2018 [Insert Administrative
Procedures. Federal Register changes.
citation].
Section 45-14-18.............. Public Meetings...... 6/1/17 9/27/2018 [Insert New state effective
Federal Register date.
citation].
Section 45-14-19.............. Permit Transfer, 6/1/17 9/27/2018 [Insert Administrative
Cancellation and Federal Register changes.
Responsibility. citation].
[[Page 48719]]
Section 45-14-20.............. Disposition of 6/1/17 9/27/2018 [Insert New state effective
Permits. Federal Register date.
citation].
Section 45-14-21.............. Conflict with Other 6/1/17 9/27/2018 [Insert Administrative
Permitting Rules. Federal Register changes.
citation].
Section 45-14-25.............. Actual PALs.......... 6/1/17 9/27/2018 [Insert Administrative
Federal Register changes.
citation].
Section 45-14-26.............. Inconsistency Between 6/1/17 9/27/2018 [Insert Administrative
Rules. Federal Register changes.
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2018-20966 Filed 9-26-18; 8:45 am]
BILLING CODE 6560-50-P
