Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Minor New Source Review Permitting, 50266-50271 [2018-21557]
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Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Rules and Regulations
List of Subjects in 40 CFR Part 52
a. Revising the entry for ‘‘Section
110(a)(2) Infrastructure Requirements
for the 2012 PM2.5 NAAQS’’; and
■ b. Adding a second entry entitled
‘‘Section 110(a)(2) Infrastructure
Requirements for the 2012 PM2.5
NAAQS’’ at the end of the table.
The revision and addition read as
follows:
■
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Environmental protection, Air
pollution control, Incorporation by
reference, Particulate matter.
1. The authority citation for part 52
continues to read as follows:
■
Dated: September 25, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
Authority: 42 U.S.C. 7401 et seq.
40 CFR part 52 is amended as follows:
Subpart XX—West Virginia
§ 52.2520
2. In § 52.2520, the table in paragraph
(e) is amended by:
■
Applicable
geographic
area
Name of non-regulatory
SIP revision
*
Section 110(a)(2) Infrastructure Requirements
for the 2012 PM2.5
NAAQS.
Section 110(a)(2) Infrastructure Requirements
for the 2012 PM2.5
NAAQS.
State
submittal
date
*
Statewide .......
*
11/17/15
Statewide .......
[FR Doc. 2018–21668 Filed 10–4–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0503; FRL–9984–95–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; Minor New Source Review
Permitting
11/17/15
*
*
*
Docket #2016–0373. This action addresses the following CAA elements of section 110(a)(2): A, B, C,
D(i)(II) (prong 3), D(ii), E, F, G, H, J, K, L, and M,
or portions thereof.
Docket #2016–0373. This action addresses CAA
section 110(a)(2)(D)(i)(I) (prongs 1 and 2).
10/5/18 [Insert Federal
Register citation].
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: Mr.
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
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5/12/17, 82 FR 22078 ...
I. Background
On June 18, 2018 (83 FR 28179), EPA
published a notice of proposed
rulemaking (NPRM) for the State of
SUMMARY: The Environmental Protection
West Virginia. In the NPRM, EPA
Agency (EPA) is approving a state
proposed approval of revisions to West
implementation plan (SIP) revision
Virginia’s minor NSR regulations,
submitted by the State of West Virginia.
‘‘45CSR13—Permits for Construction,
This revision pertains to changes to
Modification, Relocation and Operation
West Virginia’s minor New Source
of Stationary Sources of Air Pollutants,
Review (NSR) permit program. This
Notification Requirements,
action is being taken under the Clean
Administrative Updates, Temporary
Air Act (CAA).
Permits, General Permits, Permissions to
DATES: This final rule is effective on
Commence Construction, and
November 5, 2018.
Procedures for Evaluation,’’ as a
ADDRESSES: EPA has established a
revision to the West Virginia SIP. The
docket for this action under Docket ID
formal SIP revision was submitted by
Number EPA–R03–OAR–2017–0503. All the West Virginia Department of
documents in the docket are listed on
Environmental Protection (WVDEP) on
the https://www.regulations.gov
behalf of the State of West Virginia on
website. Although listed in the index,
June 6, 2017.
Section 110(a)(2)(C) of the CAA
some information is not publicly
requires SIPs to include a
available, e.g., confidential business
preconstruction permit program for both
information (CBI) or other information
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Additional explanation
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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Identification of plan.
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(e) * * *
EPA approval date
AGENCY:
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major and minor sources. More
specifically, SIPs must include the
permit programs required under subpart
C of title I and must have minor
preconstruction programs that assure
that the national ambient air quality
standards (NAAQS) are maintained.
Additionally, 40 CFR 51.160 through
51.163 outline the federal requirements
which apply to minor permit issuance,
including the required administrative
and federally enforceable procedures,
and the procedures for public
participation. Under the minor source
permitting rules under the Code of State
Rules (CSR) at 45CSR13, West Virginia
implements minor preconstruction
program requirements by issuing
permits to: (1) Construct and operate
new stationary sources which are not
major sources, (2) modify non-major
stationary sources, (3) make non-major
modifications to existing major
stationary sources, and (4) relocate nonmajor stationary sources. These rules
also establish requirements for obtaining
a temporary permit and Class I and
Class II general permit registration. EPA
last approved a revision to 45CSR13 on
July 21, 2014. See 79 FR 42211.
II. Summary of SIP Revision and EPA
Analysis
A. Summary of SIP Revision
WVDEP’s June 6, 2017 SIP submittal
contains a number of revisions to
45CRSR13, many of them administrative
or clarifying in nature. The nonadministrative changes include: (1)
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Revisions to the definitions of
modification and stationary source; (2)
Revisions to and clarifications of the
provisions allowing applicants to store
equipment onsite prior to receiving a
permit; and (3) Revisions to the
applicability criteria for Class I and
Class II administrative updates.
B. EPA Analysis
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1. ‘‘Modification’’ and ‘‘Stationary
Source’’ Definition Changes
WVDEP added language excluding
greenhouse gas (GHG) emissions under
the definitions of ‘‘Modification’’ and
‘‘Stationary Source’’ at 45CSR13
sections 45–13–2.17.a and 45–13–
2.24.b, respectively. The specific
language added to both definitions is as
follows, ‘‘ . . . other than emissions of
any one or the aggregate of all GHGs, the
air pollutant defined in 40 CFR
86.1818–12(a) as the aggregate group of
six greenhouse gases: Carbon dioxide,
nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons,
and sulfur hexafluoride.’’ The addition
of this language to both definitions
clarifies that GHG emissions are not
subject to the minor NSR permitting
requirements of 45CSR13. In accordance
with West Virginia’s Prevention of
Significant Deterioration (PSD)
regulations at 45CSR14, preconstruction
permitting requirements for GHG
sources are only triggered for major
sources or major modifications, and
only when such source/modification is
already ‘‘major’’ for another pollutant
(i.e., a source cannot be ‘‘major’’ for
GHGs alone). This is consistent with the
federal PSD regulations at 40 CFR
51.166 and 52.21. Additionally, these
revisions are appropriate and meet the
federal requirements of 40 CFR 51.160
and 51.161, and CAA section
110(a)(2)(C). Further, GHGs are not a
criteria pollutant, and there are no GHG
nonattainment areas. Therefore, the
revisions 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.
2. ‘‘Store-on-Site’’ Clarifications
WVDEP’s previously approved
regulations allow sources to ‘‘(r)eceive
or store on-site or off-site any equipment
or supplies which make up in part or in
whole an emission unit or any support
equipment, facilities, building or
structure,’’ prior to receiving a permit
under 45CSR13.1 See 45CSR13 section
1 WVDEP’s ‘‘store on-site’’ provisions do not
apply to major PSD or nonattainment NSR permits
issued in accordance with 45CSR14 or 45CSR19.
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45–13–5.1.i. WVDEP’s June 6, 2017
submittal included a revision to 45–13–
5.1.i which clarifies permissible on-site
activities that do not constitute
commencement of construction and
clarifies that such supplies etc. may be
stored on-site ‘‘ . . . on its permanent
pad or foundation or at any other
location at the stationary source.’’ In
addition, section 45–13–2 has been
revised to add a definition of ‘‘store onsite’’ which clarifies that any equipment
stored on-site must be kept in the same
condition as it was received, and not
‘‘. . . modified, erected or installed.’’
See 45CSR13 subsection 45–13–2.26.
As discussed in the NPRM in more
detail, there are no corresponding
federal minor NSR regulations for the
definition of ‘‘commencement of
construction,’’ ‘‘begin actual
construction,’’ or corresponding federal
minor NSR regulations laying out what
on-site activities are allowable in the
absence of a permit. Because the
revisions do not allow for the
construction or operation of an actual
emissions unit prior to issuance of a
permit, there are no increased emissions
associated with any of the activities
allowed by WVDEP’s ‘‘store onsite’’
provisions. Further, because a permit is
required prior to erecting and operating
any emissions units being stored on site,
West Virginia’s program has legally
enforceable procedures to prevent
construction of a minor source or the
minor modification of a existing source
if it would violate SIP control strategies
or interfere with attainment or
maintenance of the NAAQS, as required
by 40 CFR 51.160(b). Therefore, EPA
finds these revisions approvable
because they meet the requirements of
CAA section 110(a)(2)(C) for a program
for regulation of modification and
construction of stationary sources in
areas to assure the national ambient air
quality standards are achieved and are
consistent with 40 CFR 51.160–51.163
for review of new minor sources and
minor modifications including required
procedures and public availability of
information. In addition, the revisions
to 45 CSR13 are essentially adding
conditions to an already SIP approved
regulation for what on-site activities
may occur before commencement of
construction. Additionally, they are
consistent with CAA section 110(l)
because they will not interfere with any
applicable requirement concerning
attainment and reasonable further
progress, or any other applicable CAA
requirement.
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3. Class I and Class II Administrative
Updates
WVDEP’s June 6, 2017 submittal also
revised the applicability criteria for
sources seeking Class I and Class II
administrative updates to minor NSR
permits issued under 45CSR13.
The primary difference between Class
I and II updates is that, pursuant to 45–
13–4.1.d, public notice is not required
for Class I updates. For Class II updates,
WVDEP provides a 30-day public notice
period, in accordance with 45–13–8.3.
Additionally, sources requesting Class I
amendments may make the change
upon submitting the request, prior to
receiving a revised permit from WVDEP.
In WVDEP’s currently approved SIP,
only changes to permit conditions
which result in a decrease in emissions
can be approved under a Class I update.
Class II updates must be used for
changes which result in an increase or
no change in emissions. See 45CSR13
sections 45–13–4.2.a.8 and 45–13–4.2.b.
WVDEP’s June 6, 2017 submittal revised
those provisions so that rather than
applying only to permit revisions which
result in an emissions decrease, a Class
I update can be used for a permit
revision resulting in no emissions
increase. A Class II update now must be
used in instances where the revision
would result in an emissions increase.
EPA believes this is a reasonable
approach to streamlining WVDEP’s
administrative burden, and is approving
them as a revision to the West Virginia
SIP because they meet the requirements
of 40 CFR 51.160–51.163 and CAA
section 110(a)(2)(C) for permit programs
regulating modification and
construction of sources not subject to
major new source review. Additionally,
they are consistent with CAA section
110(l) because they will not interfere
with any applicable requirement
concerning attainment and reasonable
further progress, or any other applicable
CAA requirement as all modifications
resulting in an emissions increase are
still subject to public notice and the
change only affects notice on actions
where there is no effect on emissions
(and thus no affect likely on attainment
or reasonable further progress).
4. Non-Substantive Changes
In addition to the revisions previously
discussed, WVDEP’s June 6, 2017
submittal included a number of nonsubstantive, clarifying and/or
administrative changes. Some examples
include the deletion of 45CSR13 section
45–13–1.5, which referenced the former
version of 45CSR13, re-codifications
required by insertions or deletions, (e.g.,
45CSR13 sections 45–13–2.26 through
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45–13–28), and the deletion of 45CSR13
section 45–13–5.8, which was an
antiquated reference to operating
permits (permits issued under 45CSR13
include authorization to construct and
operate). WVDEP’s submittal included
an underline/strikeout version of the
submittal so that all revisions to
45CSR13 can been seen. This is
included in the docket for this action
and online at www.regulations.gov.
These changes to 45CSR13 have been
made in order to clarify and streamline
the minor NSR program, and are
appropriate and meet the federal
requirements of 40 CFR 51.160 through
51.163, and CAA section 110(a)(2)(C).
Additionally, the revisions 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.
III. Public Comments and EPA
Response
EPA received two sets of comments
on the June 18, 2018 NPR. These
comments are included in the docket for
this action. However, one of the sets of
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. EPA did receive
one set of relevant comments. Those
comments, and EPA’s response, are
discussed below.
Comment 1: The commenter takes
issue with the revision to 45–13–5.1.i,
specifically the addition of the language
relating to ‘‘permanent pad(s)’’ or
‘‘foundation(s)’’ to the existing
provision that allows sources to store
materials onsite prior to receiving a
preconstruction permit from WVDEP.
The commenter asserts that the addition
of the reference to pads and foundations
imparts implicit approval for the
construction of such facilities in the
absence of a permit, and therefore
conflicts with the definition of ‘‘begin
actual construction’’ at 40 CFR
51.165(a)(1)(xv) and 40 CFR
52.21(b)(11),2 and also conflicts with 40
CFR 51.160 (which requires SIPs to
preclude the construction or
modification of sources which would
interfere with attainment or
maintenance of the NAAQS). In support
of this assertion, the commenter
submitted a letter from EPA Region IX,
2 Under both sets of regulations, and under 40
CFR 51.166, sources subject to those regulations
may not ‘‘begin actual construction’’ without first
obtaining the proper major source preconstruction
permit.
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commenting on regulations that were
submitted to the Region by Maricopa
County Air Quality Department
(MCAQD) as an official SIP revision
request.3 In this letter, EPA identified
MCAQD’s definition of ‘‘begin actual
construction’’ relating to minor NSR as
deficient because it ‘‘ . . . allow[ed]
various activities, such as the
installation of underground pipework,
and building and equipment supports
. . . ’’ contrary to the federal
requirements and long standing agency
policy regarding major NSR.4
Commenter cited the EPA letter as
stating such construction of building
and equipment supports is not allowed
without first obtaining a preconstruction
permit.
EPA Response 1: In contrast to the
considerable requirements prescribed
for major NSR in 40 CFR 51.165, the
CAA contains minimal requirements for
minor NSR. CAA section 110(a)(2)(C)
simply requires that each SIP include a
program that provides for ‘‘ . . .
regulation of the modification and
construction of any stationary source
within the areas covered by the plan as
necessary to assure that [NAAQS] are
achieved . . . ’’ The implementing
regulations for minor NSR at 40 CFR
51.160–51.163 are similarly nonprescriptive. As a result, states have
considerable discretion with regard to
the implementation of their minor NSR
programs as long as the program assures
the national ambient air quality
standards are attained. Therefore, as
discussed in more detail below, EPA
disagrees with the commenter’s
assertion that a disapproval is
warranted.
First, EPA does not interpret the
inclusion of the reference to ‘‘permanent
pad(s) or foundation(s)’’ in WVDEP’s
revised definition of ‘‘store onsite’’
relating to allowable activities that
occur before the commencement of
construction to impart any permission
for construction activities to occur prior
to permit issuance that did not already
exist in WVDEP’s regulations. Indeed,
section 45–13–5.1.d allows sources to
‘‘Dig and construct foundations and/or
caissons and grade beams.’’ While such
activities would conflict with the
federal definition of ‘‘begin actual
construction’’ as it relates to major NSR,
EPA believes it is within West Virginia’s
discretion to allow such activities in the
context of a minor NSR program as no
definition of ‘‘begin actual
construction’’ constrains minor NSR
programs in CAA section 110(a)(2)(C) or
3 The Region IX letter is included in the docket
as an attachment to the comment letter.
4 See Region IX comment letter at 4.
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in 40 CFR 51.160–51.163. WVDEP’s
regulations are very clear that these
permissions do not extend to major
sources or major modifications which
are subject to WVDEP’s major
nonattainment PSD and NSR regulations
at 45CSR14 and 45CSR19, respectively
(subsection 5.1). Further, they do not
allow for the installation, erection, or
operation of the emissions unit
(subsection 5.2), and are undertaken at
the sole risk of the operator (subsection
5.3). Any source operator who wishes to
store equipment on a pad or foundation
must still obtain a permit before erecting
an emissions unit or any of the
specialized appurtenances associated
with the unit. Additionally, if a source
operator undertakes any of the activities
allowed under these minor NSR rules,
and the construction or modification
ends up having a potential to emit
greater than major source thresholds,
they are subject to major NSR liability.
Any source that intends to take
synthetic minor restrictions to avoid
major source permitting requirements
remains subject to 45CSR14 or 45CSR19
until such time as a permit with
enforceable limits is issued, and is
therefore not eligible for the flexibilities
provided by subsections 45–13–5 and
45–13–16.5
EPA believes that granting the
permission to store equipment on a
foundation or pad prior to permit
issuance of a minor NSR permit is
within West Virginia’s discretion and
does not compromise WVDEP’s ability
to implement their minor NSR program
in such a way to assure compliance with
the NAAQS in accordance with CAA
section 110(a)(2) and 40 CFR 51.160.
With regard to Region IX’s letter to
MCAQD, the comment does not
undertake any analysis of the
similarities or differences between
MCAQD’s SIP submittal and West
Virginia’s proposed regulatory revisions,
nor compared to WVDEP’s program.
Therefore, any similarities or differences
between MCAQD’s regulations and
WVDEP’s program are not relevant to
the main issue in this rulemaking which
is whether WVDEP’s regulations may be
approved for the SIP as being consistent
with CAA requirements. EPA has
explained in the NPR and in this
rulemaking why WVDEP’s revisions
meet CAA requirements in both CAA
section 110(a)(2)(C) and in 40 CFR
51.160–51.163. Notably, there is no
federal regulatory requirement of ‘‘begin
actual construction’’ for minor NSR in
CAA or in 40 CFR 51.161–51.163.
Further, EPA notes that in an August 17,
5 Subsection 45–13–16.2.b expressly excludes
sources seeking synthetic minor limits.
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2017 notice of proposed rulemaking,
EPA proposed to approve for the South
Carolina SIP minor NSR program
similar provisions to West Virginia’s
relating to permissible on-site activities
allowable pre-permit. In that rulemaking
proposal, EPA found that provisions
allowing sources to pour concrete
foundations prior to issuance of a minor
NSR permit were ‘‘ . . . not inconsistent
with the requirements of the CAA and
EPA’s regulations, and are therefore
approvable as part of the SIP.’’ See 82
FR 39085. EPA made similar
determinations in final rulemaking
actions for Mississippi 6 and
Wisconsin 7. Thus, despite the EPA
comment letter cited by commenter,
EPA disagrees with commenter that
EPA’s action to approve the West
Virginia revision contradicts EPA
regulations or policy. Accordingly, EPA
is approving WVDEP’s June 6, 2018
submittal as a revision to the West
Virginia SIP.
Comment 2: The commenter asserts
that ‘‘To allow a whole or even part of
an emission unit to be stored on site
before issuance of a permit to construct
violates the intent of new source review
permitting requirements,’’ and that
because West Virginia ‘‘ . . . has
resubmitted Rule 45–13–5.1.i for
approval into the SIP, the entire
subsection is subject to review for
approvability,’’ and EPA should
disapprove the entire subsection.
Commenter also states that EPA is
incorrect in finding the SIP revision will
not interfere with any other applicable
CAA requirement per CAA section
110(l) because the West Virginia
revision is inconsistent with CAA and
longstanding EPA policy.
EPA Response 2: EPA does not
disagree with the commenter’s assertion
that the entire subsection of 45 CSR13
is subject to review for approvability.
However, other than the language on
revise ‘‘on-site’’ activities, commenter
does not site to other inconsistencies in
West Virginia’s regulations. As stated
above in response to the first comment,
EPA disagrees that West Virginia’s
‘‘store onsite’’ provisions violate the
intent of NSR. The PSD provisions of
the CAA prohibit commencement of
construction without first obtaining the
required permit authorizing
construction; however, the requirement
only applies to major sources, and no
such restriction is specified under the
minor NSR program requirements set
forth in 40 CFR 51.160. In addition, EPA
has made determinations which further
support that limited construction may
6 See
7 See
71 FR 38773 (July 10, 2006).
73 FR 12893 (March 11, 2008).
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begin before a permit is issued for minor
sources. For example, EPA’s October 10,
1978, memorandum from Edward E.
Reich to Thomas W. Devine in Region
1 discusses limited preconstruction
activities allowed at a site with both
PSD and non-PSD sources. This memo
states that construction may begin on
PSD-exempt projects before the permit
is issued. EPA has established its
position that such limited waivers are
acceptable for true minor sources in
previous rulemaking. (See 68 FR 2217
and 73 FR 12893.) In addition, in a
December 18, 1978 memo entitled
‘‘Interpretation of ‘Constructed’ as it
Applies to Activities Undertaken Prior
to Issuance of a PSD Permit,’’ 8 EPA
attempted to clarify activities which
would, in all cases, require a source
operator to obtain a major NSR permit
before undertaking, as well as activities
which in all cases would not: ‘‘The new
policy is that certain limited activities
will be allowed in all cases. These
allowable activities are planning,
ordering of equipment and materials,
site-clearing, grading, and on-site
storage of equipment and materials
(emphasis added).’’ Clearly, if such
activities are acceptable prior to
issuance in the context of the
considerably more prescriptive major
NSR program, West Virginia is well
within its discretion to allow similar onsite activities under its minor NSR
program for which the CAA and federal
regulations provide less regulatory
requirements. Accordingly, EPA is
approving WVDEP’s June 6, 2018
submittal as a revision to the West
Virginia SIP as nothing in the minor
NSR requirements in the CAA or in 40
CFR part 51 prohibit West Virginia from
allowing certain on-site activities such
as those West Virginia has added prior
to issuance of a construction permit.
Finally, EPA disagrees with the
commenter’s general assertion that EPA
is incorrect in finding the SIP revision
will not interfere with any other
applicable CAA requirement per CAA
section 110(l). As EPA has explained in
response to first and second comment,
there are no federal requirements in the
CAA or federal regulations that address
allowable on-site activities prior to
issuance of a permit. As EPA has found
West Virginia’s regulations reasonable
and within the scope of CAA
requirements for minor NSR programs,
EPA is approving the revisions as in
accord with CAA section 110. Our
8 The commenter cites this memo as well as three
others in defense of their claims. See fn5 of
comment letter. None of these memos speak
directly to the issue of activities allowed pre-permit
in the context of minor NSR.
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approval is consistent with similar SIP
revision approvals for South Carolina
and Mississippi as discussed above.
IV. Final Action
EPA is approving WVDEP’s June 6,
2017 SIP submittal as a revision to the
West Virginia SIP because the revisions
meet the requirements of 40 CFR
51.160–51.163 and CAA section
110(a)(2)(C). Additionally, they are
consistent with CAA section 110(l)
because they will not interfere with any
applicable requirement concerning
attainment and reasonable further
progress, or any other applicable CAA
requirement.
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 WVDEP rules
regarding minor source permitting
requirements discussed in section II of
this preamble. 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).
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.9
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,
9 62
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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.
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action related
to West Virginia’s minor NSR program
may not be challenged later in
proceedings to enforce its requirements.
(See section 307(b)(2).)
B. Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
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.
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 December 4, 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
List of Subjects in 40 CFR Part 52
Dated: September 24, 2018.
Cosmo Servidio,
Regional Administrator Region III.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart XX—West Virginia
2. In § 52.2520, the table in paragraph
(c) entitled ‘‘EPA-Approved Regulations
in the West Virginia SIP’’ is amended by
revising the entries for sections 45–13–
1 through 45–1–16, 45–13A, and 45–
13B to read as follows:
■
§ 52.2520
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP
State citation
[chapter 16–20 or 45
CSR ]
*
State effective
date
Title/subject
*
*
*
EPA approval date
Additional explanation/
citation at 40 CFR 52.2565
*
*
*
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[45 CSR] Series 13 Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements, Administrative Updates, Temporary Permits, General Permits, Permission to Commence Construction and
Procedures for Evaluation
Section 45–13–1 ...........
General ................................................
6/1/17
Section 45–13–2 ...........
Definitions ............................................
6/1/17
Section 45–13–3 ...........
Reporting Requirements for Stationary
Sources.
6/1/17
Section 45–13–4 ...........
Administrative Updates to Existing
Permits and General Permit Registrations.
6/1/17
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Administrative changes.
Revised definitions of ‘‘modification,’’
‘‘stationary source,’’ and ‘‘store onsite.’’
New state effective date.
Revised sections 4.1.d, 4.2, 4.2.a.8,
and 4.2.b.1.
05OCR1
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EPA-APPROVED REGULATIONS IN THE WEST VIRGINIA SIP—Continued
State citation
[chapter 16–20 or 45
CSR ]
Section 45–13–5 ...........
Permit Application and Reporting Requirements for Construction of and
Modifications to Stationary Sources.
Determination of Compliance of Stationary Sources.
Section 45–13–6 ...........
6/1/17
6/1/17
Section 45–13–7 ...........
Modeling ..............................................
6/1/17
Section 45–13–8 ...........
Public Review Procedures ..................
6/1/17
Section 45–13–9 ...........
Public Meetings ...................................
6/1/17
Section 45–13–10 .........
Permit Transfer, Suspension, Revocation and Responsibility.
6/1/17
Section 45–13–11 .........
Temporary Construction or Modification Permits.
6/1/17
Section 45–13–12 .........
Permit Application Fees ......................
6/1/17
Section 45–13–13 .........
Inconsistency Between Rules .............
6/1/17
Section 45–13–14 .........
Statutory Air Pollution .........................
6/1/17
Section 45–13–15 .........
Hazardous Air Pollutants ....................
6/1/17
Section 45–13–16 .........
6/1/17
Table 45–13A ................
Application for Permission to Commence Construction in Advance of
Permit Issuance.
Potential Emission Rate ......................
6/1/17
Table 45–13B ................
De Minimus Sources ...........................
6/1/17
*
*
*
*
*
*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2018–0550; FRL–9985–00–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; 2018 Amendments to West
Virginia’s Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
VerDate Sep<11>2014
16:12 Oct 04, 2018
*
EPA approval date
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
10/5/18 [Insert
Federal Register citation].
Additional explanation/
citation at 40 CFR 52.2565
Revised section 5.1.e, 5.1.i; deleted
existing section 5.8; renumbered
following sections.
New state effective date.
New state effective date.
Revised section 8.1.
New state effective date
Administrative changes.
Administrative changes.
New state effective date.
Administrative changes.
New state effective date.
Administrative changes.
Administrative changes.
New state effective date.
Administrative changes.
*
*
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*
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
DATES: This final rule is effective on
additional availability information.
November 5, 2018.
FOR FURTHER INFORMATION CONTACT:
ADDRESSES: EPA has established a
Joseph Schulingkamp, (215) 814–2021,
docket for this action under Docket ID
or by email at schulingkamp.joseph@
Number EPA–R03–OAR–2018–0550. All
epa.gov.
documents in the docket are listed on
the https://www.regulations.gov website. SUPPLEMENTARY INFORMATION:
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the State of West Virginia.
This revision updates the effective date
by which the state incorporates by
reference the national ambient air
quality standards (NAAQS) as well as
their monitoring reference and
equivalent methods. EPA is approving
this revision to the West Virginia SIP in
accordance with the requirements of the
Clean Air Act (CAA).
SUMMARY:
[FR Doc. 2018–21557 Filed 10–4–18; 8:45 am]
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]]>Agencies
[Federal Register Volume 83, Number 194 (Friday, October 5, 2018)]
[Rules and Regulations]
[Pages 50266-50271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21557]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0503; FRL-9984-95-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Minor New Source Review Permitting
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 changes to West Virginia's minor
New Source Review (NSR) permit program. This action is being taken
under the Clean Air Act (CAA).
DATES: This final rule is effective on November 5, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0503. 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: Mr. David Talley, (215) 814-2117, or
by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 18, 2018 (83 FR 28179), EPA published a notice of proposed
rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA
proposed approval of revisions to West Virginia's minor NSR
regulations, ``45CSR13--Permits for Construction, Modification,
Relocation and Operation of Stationary Sources of Air Pollutants,
Notification Requirements, Administrative Updates, Temporary Permits,
General Permits, Permissions to Commence Construction, and Procedures
for Evaluation,'' as a revision to the West Virginia SIP. The formal
SIP revision was submitted by the West Virginia Department of
Environmental Protection (WVDEP) on behalf of the State of West
Virginia on June 6, 2017.
Section 110(a)(2)(C) of the CAA requires SIPs to include a
preconstruction permit program for both major and minor sources. More
specifically, SIPs must include the permit programs required under
subpart C of title I and must have minor preconstruction programs that
assure that the national ambient air quality standards (NAAQS) are
maintained. Additionally, 40 CFR 51.160 through 51.163 outline the
federal requirements which apply to minor permit issuance, including
the required administrative and federally enforceable procedures, and
the procedures for public participation. Under the minor source
permitting rules under the Code of State Rules (CSR) at 45CSR13, West
Virginia implements minor preconstruction program requirements by
issuing permits to: (1) Construct and operate new stationary sources
which are not major sources, (2) modify non-major stationary sources,
(3) make non-major modifications to existing major stationary sources,
and (4) relocate non-major stationary sources. These rules also
establish requirements for obtaining a temporary permit and Class I and
Class II general permit registration. EPA last approved a revision to
45CSR13 on July 21, 2014. See 79 FR 42211.
II. Summary of SIP Revision and EPA Analysis
A. Summary of SIP Revision
WVDEP's June 6, 2017 SIP submittal contains a number of revisions
to 45CRSR13, many of them administrative or clarifying in nature. The
non-administrative changes include: (1)
[[Page 50267]]
Revisions to the definitions of modification and stationary source; (2)
Revisions to and clarifications of the provisions allowing applicants
to store equipment onsite prior to receiving a permit; and (3)
Revisions to the applicability criteria for Class I and Class II
administrative updates.
B. EPA Analysis
1. ``Modification'' and ``Stationary Source'' Definition Changes
WVDEP added language excluding greenhouse gas (GHG) emissions under
the definitions of ``Modification'' and ``Stationary Source'' at
45CSR13 sections 45-13-2.17.a and 45-13-2.24.b, respectively. The
specific language added to both definitions is as follows, `` . . .
other than emissions of any one or the aggregate of all GHGs, the air
pollutant defined in 40 CFR 86.1818-12(a) as the aggregate group of six
greenhouse gases: Carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.'' The
addition of this language to both definitions clarifies that GHG
emissions are not subject to the minor NSR permitting requirements of
45CSR13. In accordance with West Virginia's Prevention of Significant
Deterioration (PSD) regulations at 45CSR14, preconstruction permitting
requirements for GHG sources are only triggered for major sources or
major modifications, and only when such source/modification is already
``major'' for another pollutant (i.e., a source cannot be ``major'' for
GHGs alone). This is consistent with the federal PSD regulations at 40
CFR 51.166 and 52.21. Additionally, these revisions are appropriate and
meet the federal requirements of 40 CFR 51.160 and 51.161, and CAA
section 110(a)(2)(C). Further, GHGs are not a criteria pollutant, and
there are no GHG nonattainment areas. Therefore, the revisions 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.
2. ``Store-on-Site'' Clarifications
WVDEP's previously approved regulations allow sources to
``(r)eceive or store on-site or off-site any equipment or supplies
which make up in part or in whole an emission unit or any support
equipment, facilities, building or structure,'' prior to receiving a
permit under 45CSR13.\1\ See 45CSR13 section 45-13-5.1.i. WVDEP's June
6, 2017 submittal included a revision to 45-13-5.1.i which clarifies
permissible on-site activities that do not constitute commencement of
construction and clarifies that such supplies etc. may be stored on-
site `` . . . on its permanent pad or foundation or at any other
location at the stationary source.'' In addition, section 45-13-2 has
been revised to add a definition of ``store on-site'' which clarifies
that any equipment stored on-site must be kept in the same condition as
it was received, and not ``. . . modified, erected or installed.'' See
45CSR13 subsection 45-13-2.26. As discussed in the NPRM in more detail,
there are no corresponding federal minor NSR regulations for the
definition of ``commencement of construction,'' ``begin actual
construction,'' or corresponding federal minor NSR regulations laying
out what on-site activities are allowable in the absence of a permit.
Because the revisions do not allow for the construction or operation of
an actual emissions unit prior to issuance of a permit, there are no
increased emissions associated with any of the activities allowed by
WVDEP's ``store onsite'' provisions. Further, because a permit is
required prior to erecting and operating any emissions units being
stored on site, West Virginia's program has legally enforceable
procedures to prevent construction of a minor source or the minor
modification of a existing source if it would violate SIP control
strategies or interfere with attainment or maintenance of the NAAQS, as
required by 40 CFR 51.160(b). Therefore, EPA finds these revisions
approvable because they meet the requirements of CAA section
110(a)(2)(C) for a program for regulation of modification and
construction of stationary sources in areas to assure the national
ambient air quality standards are achieved and are consistent with 40
CFR 51.160-51.163 for review of new minor sources and minor
modifications including required procedures and public availability of
information. In addition, the revisions to 45 CSR13 are essentially
adding conditions to an already SIP approved regulation for what on-
site activities may occur before commencement of construction.
Additionally, they are consistent with CAA section 110(l) because they
will not interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable CAA
requirement.
---------------------------------------------------------------------------
\1\ WVDEP's ``store on-site'' provisions do not apply to major
PSD or nonattainment NSR permits issued in accordance with 45CSR14
or 45CSR19.
---------------------------------------------------------------------------
3. Class I and Class II Administrative Updates
WVDEP's June 6, 2017 submittal also revised the applicability
criteria for sources seeking Class I and Class II administrative
updates to minor NSR permits issued under 45CSR13.
The primary difference between Class I and II updates is that,
pursuant to 45-13-4.1.d, public notice is not required for Class I
updates. For Class II updates, WVDEP provides a 30-day public notice
period, in accordance with 45-13-8.3. Additionally, sources requesting
Class I amendments may make the change upon submitting the request,
prior to receiving a revised permit from WVDEP. In WVDEP's currently
approved SIP, only changes to permit conditions which result in a
decrease in emissions can be approved under a Class I update. Class II
updates must be used for changes which result in an increase or no
change in emissions. See 45CSR13 sections 45-13-4.2.a.8 and 45-13-
4.2.b. WVDEP's June 6, 2017 submittal revised those provisions so that
rather than applying only to permit revisions which result in an
emissions decrease, a Class I update can be used for a permit revision
resulting in no emissions increase. A Class II update now must be used
in instances where the revision would result in an emissions increase.
EPA believes this is a reasonable approach to streamlining WVDEP's
administrative burden, and is approving them as a revision to the West
Virginia SIP because they meet the requirements of 40 CFR 51.160-51.163
and CAA section 110(a)(2)(C) for permit programs regulating
modification and construction of sources not subject to major new
source review. Additionally, they are consistent with CAA section
110(l) because they will not interfere with any applicable requirement
concerning attainment and reasonable further progress, or any other
applicable CAA requirement as all modifications resulting in an
emissions increase are still subject to public notice and the change
only affects notice on actions where there is no effect on emissions
(and thus no affect likely on attainment or reasonable further
progress).
4. Non-Substantive Changes
In addition to the revisions previously discussed, WVDEP's June 6,
2017 submittal included a number of non-substantive, clarifying and/or
administrative changes. Some examples include the deletion of 45CSR13
section 45-13-1.5, which referenced the former version of 45CSR13, re-
codifications required by insertions or deletions, (e.g., 45CSR13
sections 45-13-2.26 through
[[Page 50268]]
45-13-28), and the deletion of 45CSR13 section 45-13-5.8, which was an
antiquated reference to operating permits (permits issued under 45CSR13
include authorization to construct and operate). WVDEP's submittal
included an underline/strikeout version of the submittal so that all
revisions to 45CSR13 can been seen. This is included in the docket for
this action and online at www.regulations.gov.
These changes to 45CSR13 have been made in order to clarify and
streamline the minor NSR program, and are appropriate and meet the
federal requirements of 40 CFR 51.160 through 51.163, and CAA section
110(a)(2)(C). Additionally, the revisions 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.
III. Public Comments and EPA Response
EPA received two sets of comments on the June 18, 2018 NPR. These
comments are included in the docket for this action. However, one of
the sets of 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. EPA did receive one set of relevant comments. Those comments, and
EPA's response, are discussed below.
Comment 1: The commenter takes issue with the revision to 45-13-
5.1.i, specifically the addition of the language relating to
``permanent pad(s)'' or ``foundation(s)'' to the existing provision
that allows sources to store materials onsite prior to receiving a
preconstruction permit from WVDEP. The commenter asserts that the
addition of the reference to pads and foundations imparts implicit
approval for the construction of such facilities in the absence of a
permit, and therefore conflicts with the definition of ``begin actual
construction'' at 40 CFR 51.165(a)(1)(xv) and 40 CFR 52.21(b)(11),\2\
and also conflicts with 40 CFR 51.160 (which requires SIPs to preclude
the construction or modification of sources which would interfere with
attainment or maintenance of the NAAQS). In support of this assertion,
the commenter submitted a letter from EPA Region IX, commenting on
regulations that were submitted to the Region by Maricopa County Air
Quality Department (MCAQD) as an official SIP revision request.\3\ In
this letter, EPA identified MCAQD's definition of ``begin actual
construction'' relating to minor NSR as deficient because it `` . . .
allow[ed] various activities, such as the installation of underground
pipework, and building and equipment supports . . . '' contrary to the
federal requirements and long standing agency policy regarding major
NSR.\4\ Commenter cited the EPA letter as stating such construction of
building and equipment supports is not allowed without first obtaining
a preconstruction permit.
---------------------------------------------------------------------------
\2\ Under both sets of regulations, and under 40 CFR 51.166,
sources subject to those regulations may not ``begin actual
construction'' without first obtaining the proper major source
preconstruction permit.
\3\ The Region IX letter is included in the docket as an
attachment to the comment letter.
\4\ See Region IX comment letter at 4.
---------------------------------------------------------------------------
EPA Response 1: In contrast to the considerable requirements
prescribed for major NSR in 40 CFR 51.165, the CAA contains minimal
requirements for minor NSR. CAA section 110(a)(2)(C) simply requires
that each SIP include a program that provides for `` . . . regulation
of the modification and construction of any stationary source within
the areas covered by the plan as necessary to assure that [NAAQS] are
achieved . . . '' The implementing regulations for minor NSR at 40 CFR
51.160-51.163 are similarly non-prescriptive. As a result, states have
considerable discretion with regard to the implementation of their
minor NSR programs as long as the program assures the national ambient
air quality standards are attained. Therefore, as discussed in more
detail below, EPA disagrees with the commenter's assertion that a
disapproval is warranted.
First, EPA does not interpret the inclusion of the reference to
``permanent pad(s) or foundation(s)'' in WVDEP's revised definition of
``store onsite'' relating to allowable activities that occur before the
commencement of construction to impart any permission for construction
activities to occur prior to permit issuance that did not already exist
in WVDEP's regulations. Indeed, section 45-13-5.1.d allows sources to
``Dig and construct foundations and/or caissons and grade beams.''
While such activities would conflict with the federal definition of
``begin actual construction'' as it relates to major NSR, EPA believes
it is within West Virginia's discretion to allow such activities in the
context of a minor NSR program as no definition of ``begin actual
construction'' constrains minor NSR programs in CAA section
110(a)(2)(C) or in 40 CFR 51.160-51.163. WVDEP's regulations are very
clear that these permissions do not extend to major sources or major
modifications which are subject to WVDEP's major nonattainment PSD and
NSR regulations at 45CSR14 and 45CSR19, respectively (subsection 5.1).
Further, they do not allow for the installation, erection, or operation
of the emissions unit (subsection 5.2), and are undertaken at the sole
risk of the operator (subsection 5.3). Any source operator who wishes
to store equipment on a pad or foundation must still obtain a permit
before erecting an emissions unit or any of the specialized
appurtenances associated with the unit. Additionally, if a source
operator undertakes any of the activities allowed under these minor NSR
rules, and the construction or modification ends up having a potential
to emit greater than major source thresholds, they are subject to major
NSR liability. Any source that intends to take synthetic minor
restrictions to avoid major source permitting requirements remains
subject to 45CSR14 or 45CSR19 until such time as a permit with
enforceable limits is issued, and is therefore not eligible for the
flexibilities provided by subsections 45-13-5 and 45-13-16.\5\
---------------------------------------------------------------------------
\5\ Subsection 45-13-16.2.b expressly excludes sources seeking
synthetic minor limits.
---------------------------------------------------------------------------
EPA believes that granting the permission to store equipment on a
foundation or pad prior to permit issuance of a minor NSR permit is
within West Virginia's discretion and does not compromise WVDEP's
ability to implement their minor NSR program in such a way to assure
compliance with the NAAQS in accordance with CAA section 110(a)(2) and
40 CFR 51.160. With regard to Region IX's letter to MCAQD, the comment
does not undertake any analysis of the similarities or differences
between MCAQD's SIP submittal and West Virginia's proposed regulatory
revisions, nor compared to WVDEP's program. Therefore, any similarities
or differences between MCAQD's regulations and WVDEP's program are not
relevant to the main issue in this rulemaking which is whether WVDEP's
regulations may be approved for the SIP as being consistent with CAA
requirements. EPA has explained in the NPR and in this rulemaking why
WVDEP's revisions meet CAA requirements in both CAA section
110(a)(2)(C) and in 40 CFR 51.160-51.163. Notably, there is no federal
regulatory requirement of ``begin actual construction'' for minor NSR
in CAA or in 40 CFR 51.161-51.163. Further, EPA notes that in an August
17,
[[Page 50269]]
2017 notice of proposed rulemaking, EPA proposed to approve for the
South Carolina SIP minor NSR program similar provisions to West
Virginia's relating to permissible on-site activities allowable pre-
permit. In that rulemaking proposal, EPA found that provisions allowing
sources to pour concrete foundations prior to issuance of a minor NSR
permit were `` . . . not inconsistent with the requirements of the CAA
and EPA's regulations, and are therefore approvable as part of the
SIP.'' See 82 FR 39085. EPA made similar determinations in final
rulemaking actions for Mississippi \6\ and Wisconsin \7\. Thus, despite
the EPA comment letter cited by commenter, EPA disagrees with commenter
that EPA's action to approve the West Virginia revision contradicts EPA
regulations or policy. Accordingly, EPA is approving WVDEP's June 6,
2018 submittal as a revision to the West Virginia SIP.
---------------------------------------------------------------------------
\6\ See 71 FR 38773 (July 10, 2006).
\7\ See 73 FR 12893 (March 11, 2008).
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Comment 2: The commenter asserts that ``To allow a whole or even
part of an emission unit to be stored on site before issuance of a
permit to construct violates the intent of new source review permitting
requirements,'' and that because West Virginia `` . . . has resubmitted
Rule 45-13-5.1.i for approval into the SIP, the entire subsection is
subject to review for approvability,'' and EPA should disapprove the
entire subsection. Commenter also states that EPA is incorrect in
finding the SIP revision will not interfere with any other applicable
CAA requirement per CAA section 110(l) because the West Virginia
revision is inconsistent with CAA and longstanding EPA policy.
EPA Response 2: EPA does not disagree with the commenter's
assertion that the entire subsection of 45 CSR13 is subject to review
for approvability. However, other than the language on revise ``on-
site'' activities, commenter does not site to other inconsistencies in
West Virginia's regulations. As stated above in response to the first
comment, EPA disagrees that West Virginia's ``store onsite'' provisions
violate the intent of NSR. The PSD provisions of the CAA prohibit
commencement of construction without first obtaining the required
permit authorizing construction; however, the requirement only applies
to major sources, and no such restriction is specified under the minor
NSR program requirements set forth in 40 CFR 51.160. In addition, EPA
has made determinations which further support that limited construction
may begin before a permit is issued for minor sources. For example,
EPA's October 10, 1978, memorandum from Edward E. Reich to Thomas W.
Devine in Region 1 discusses limited preconstruction activities allowed
at a site with both PSD and non-PSD sources. This memo states that
construction may begin on PSD-exempt projects before the permit is
issued. EPA has established its position that such limited waivers are
acceptable for true minor sources in previous rulemaking. (See 68 FR
2217 and 73 FR 12893.) In addition, in a December 18, 1978 memo
entitled ``Interpretation of `Constructed' as it Applies to Activities
Undertaken Prior to Issuance of a PSD Permit,'' \8\ EPA attempted to
clarify activities which would, in all cases, require a source operator
to obtain a major NSR permit before undertaking, as well as activities
which in all cases would not: ``The new policy is that certain limited
activities will be allowed in all cases. These allowable activities are
planning, ordering of equipment and materials, site-clearing, grading,
and on-site storage of equipment and materials (emphasis added).''
Clearly, if such activities are acceptable prior to issuance in the
context of the considerably more prescriptive major NSR program, West
Virginia is well within its discretion to allow similar on-site
activities under its minor NSR program for which the CAA and federal
regulations provide less regulatory requirements. Accordingly, EPA is
approving WVDEP's June 6, 2018 submittal as a revision to the West
Virginia SIP as nothing in the minor NSR requirements in the CAA or in
40 CFR part 51 prohibit West Virginia from allowing certain on-site
activities such as those West Virginia has added prior to issuance of a
construction permit.
---------------------------------------------------------------------------
\8\ The commenter cites this memo as well as three others in
defense of their claims. See fn5 of comment letter. None of these
memos speak directly to the issue of activities allowed pre-permit
in the context of minor NSR.
---------------------------------------------------------------------------
Finally, EPA disagrees with the commenter's general assertion that
EPA is incorrect in finding the SIP revision will not interfere with
any other applicable CAA requirement per CAA section 110(l). As EPA has
explained in response to first and second comment, there are no federal
requirements in the CAA or federal regulations that address allowable
on-site activities prior to issuance of a permit. As EPA has found West
Virginia's regulations reasonable and within the scope of CAA
requirements for minor NSR programs, EPA is approving the revisions as
in accord with CAA section 110. Our approval is consistent with similar
SIP revision approvals for South Carolina and Mississippi as discussed
above.
IV. Final Action
EPA is approving WVDEP's June 6, 2017 SIP submittal as a revision
to the West Virginia SIP because the revisions meet the requirements of
40 CFR 51.160-51.163 and CAA section 110(a)(2)(C). Additionally, they
are consistent with CAA section 110(l) because they will not interfere
with any applicable requirement concerning attainment and reasonable
further progress, or any other applicable CAA requirement.
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 WVDEP
rules regarding minor source permitting requirements discussed in
section II of this preamble. 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). 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.\9\
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\9\ 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,
[[Page 50270]]
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 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 December 4, 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 related to West Virginia's minor NSR 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 24, 2018.
Cosmo Servidio,
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 in paragraph (c) entitled ``EPA-Approved
Regulations in the West Virginia SIP'' is amended by revising the
entries for sections 45-13-1 through 45-1-16, 45-13A, and 45-13B 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 Title/subject State EPA approval date explanation/ citation
or 45 CSR ] effective date at 40 CFR 52.2565
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[45 CSR] Series 13 Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air
Pollutants, Notification Requirements, Administrative Updates, Temporary Permits, General Permits, Permission to
Commence Construction and Procedures for Evaluation
----------------------------------------------------------------------------------------------------------------
Section 45-13-1............... General............... 6/1/17 10/5/18 [Insert Administrative
Federal Register changes.
citation].
Section 45-13-2............... Definitions........... 6/1/17 10/5/18 [Insert Revised definitions
Federal Register of ``modification,''
citation]. ``stationary
source,'' and
``store on-site.''
Section 45-13-3............... Reporting Requirements 6/1/17 10/5/18 [Insert New state effective
for Stationary Federal Register date.
Sources. citation].
Section 45-13-4............... Administrative Updates 6/1/17 10/5/18 [Insert Revised sections
to Existing Permits Federal Register 4.1.d, 4.2, 4.2.a.8,
and General Permit citation]. and 4.2.b.1.
Registrations.
[[Page 50271]]
Section 45-13-5............... Permit Application and 6/1/17 10/5/18 [Insert Revised section
Reporting Federal Register 5.1.e, 5.1.i;
Requirements for citation]. deleted existing
Construction of and section 5.8;
Modifications to renumbered following
Stationary Sources. sections.
Section 45-13-6............... Determination of 6/1/17 10/5/18 [Insert New state effective
Compliance of Federal Register date.
Stationary Sources. citation].
Section 45-13-7............... Modeling.............. 6/1/17 10/5/18 [Insert New state effective
Federal Register date.
citation].
Section 45-13-8............... Public Review 6/1/17 10/5/18 [Insert Revised section 8.1.
Procedures. Federal Register
citation].
Section 45-13-9............... Public Meetings....... 6/1/17 10/5/18 [Insert New state effective
Federal Register date
citation].
Section 45-13-10.............. Permit Transfer, 6/1/17 10/5/18 [Insert Administrative
Suspension, Federal Register changes.
Revocation and citation].
Responsibility.
Section 45-13-11.............. Temporary Construction 6/1/17 10/5/18 [Insert Administrative
or Modification Federal Register changes.
Permits. citation].
Section 45-13-12.............. Permit Application 6/1/17 10/5/18 [Insert New state effective
Fees. Federal Register date.
citation].
Section 45-13-13.............. Inconsistency Between 6/1/17 10/5/18 [Insert Administrative
Rules. Federal Register changes.
citation].
Section 45-13-14.............. Statutory Air 6/1/17 10/5/18 [Insert New state effective
Pollution. Federal Register date.
citation].
Section 45-13-15.............. Hazardous Air 6/1/17 10/5/18 [Insert Administrative
Pollutants. Federal Register changes.
citation].
Section 45-13-16.............. Application for 6/1/17 10/5/18 [Insert Administrative
Permission to Federal Register changes.
Commence Construction citation].
in Advance of Permit
Issuance.
Table 45-13A.................. Potential Emission 6/1/17 10/5/18 [Insert New state effective
Rate. Federal Register date.
citation].
Table 45-13B.................. De Minimus Sources.... 6/1/17 10/5/18 [Insert Administrative
Federal Register changes.
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2018-21557 Filed 10-4-18; 8:45 am]
BILLING CODE 6560-50-P
