Air Plan Disapproval; West Virginia; Revision to the West Virginia State Implementation Plan To Add the SSM Rule 45CSR1-Alternative Emission Limitations During Startup, Shutdown, and Maintenance Operations, 78617-78621 [2022-27713]

Download as PDF Federal Register / Vol. 87, No. 245 / Thursday, December 22, 2022 / Proposed Rules radius of Paoli Municipal Airport, Paoli, IN. This action supports new public instrument procedures. Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11. FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15. Regulatory Notices and Analyses The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Environmental Review lotter on DSK11XQN23PROD with PROPOSALS1 The Proposed Amendment Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 16:38 Dec 21, 2022 Jkt 259001 Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. * * * * * AGL IN E5 Paoli, IN [Establish] Paoli Municipal Airport, IN (Lat. 38°35′05″ N, long. 86°27′54″ W) That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Paoli Municipal Airport. Issued in Fort Worth, Texas, on December 19, 2022. Martin A. Skinner, Acting Manager, Operations Support Group, ATO Central Service Center. [FR Doc. 2022–27814 Filed 12–21–22; 8:45 am] BILLING CODE 4910–13–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2022–0956; FRL–10491– 01–R3] Air Plan Disapproval; West Virginia; Revision to the West Virginia State Implementation Plan To Add the SSM Rule 45CSR1—Alternative Emission Limitations During Startup, Shutdown, and Maintenance Operations The Environmental Protection Agency (EPA) is proposing to disapprove a state implementation plan (SIP) revision submitted by the State of West Virginia on June 13, 2017. The revision pertains to a new rule setting forth the requirements to establish, at the discretion of the Secretary of the West Virginia Department of Environmental Protection (WVDEP), an alternative emission limitation (AEL) for a source that requests an AEL. This SIP revision was submitted in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, for provisions in the West Virginia SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing to disapprove the SIP revision and SUMMARY: Airspace, Incorporation by reference, Navigation (air). VerDate Sep<11>2014 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022, is amended as follows: ■ Environmental Protection Agency (EPA). ACTION: Proposed rule. List of Subjects in 14 CFR Part 71 1. The authority citation for 14 CFR part 71 continues to read as follows: § 71.1 AGENCY: This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, ‘‘Environmental Impacts: Policies and Procedures’’ prior to any FAA final regulatory action. ■ Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 78617 proposing to determine that such SIP revision does not correct the deficiencies identified in the June 12, 2015, SIP Call. DATES: Written comments must be received on or before January 23, 2023. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R03– OAR–2022–0956 at www.regulations.gov, or via email to Gordon.Mike@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epadockets. FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1600 John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814–2053. Ms. Nichols can also be reached via electronic mail at Nichols.Serena@epa.gov. SUPPLEMENTARY INFORMATION: I. Background A. EPA’s 2015 SSM SIP Action On February 22, 2013, the EPA issued a Federal Register notice of proposed rulemaking (the February 2013 Proposal) outlining EPA’s policy at the time with respect to SIP provisions related to periods of startup, shutdown, and malfunction (SSM). EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the Clean Air Act (CAA) with regard to excess emission E:\FR\FM\22DEP1.SGM 22DEP1 lotter on DSK11XQN23PROD with PROPOSALS1 78618 Federal Register / Vol. 87, No. 245 / Thursday, December 22, 2022 / Proposed Rules events.1 For each SIP provision that the EPA determined to be inconsistent with the CAA, the EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5). On September 17, 2014, the EPA issued a document supplementing and revising what the Agency had previously proposed on February 22, 2013 (the supplemental notice of proposed rulemaking (SNPR)), in light of a D.C. Circuit decision that determined the CAA precludes authority of the EPA to create affirmative defense provisions. EPA outlined its updated policy that affirmative defense SIP provisions are not consistent with CAA requirements. EPA proposed in the supplemental proposal document to apply its revised interpretation of the CAA to specific affirmative defense SIP provisions and proposed SIP calls for those provisions where appropriate (79 FR 55920, September 17, 2014). On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA finalized ‘‘State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction’’ (80 FR 33839 June 12, 2015), hereafter referred to as the ‘‘2015 SSM SIP Action.’’ The 2015 SSM SIP Action clarified, restated, and updated the EPA’s interpretation that SSM exemptions (whether automatic or discretionary) and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016. EPA issued a Memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA 1 State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013). VerDate Sep<11>2014 16:38 Dec 21, 2022 Jkt 259001 requirements.2 Importantly, the 2020 Memorandum stated that it ‘‘did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.’’ Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to West Virginia in 2015. The 2020 Memorandum did, however, indicate the EPA’s intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether the EPA should maintain, modify, or withdraw particular SIP calls through future agency actions. On September 30, 2021, EPA’s Deputy Administrator withdrew the 2020 Memorandum and announced EPA’s return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum).3 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including overburdened communities, receive the full health and environmental protections provided by the CAA.4 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum of EPA’s plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects the EPA’s intent. EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the agency takes action on SIP submissions, including West Virginia’s SIP submittal provided in response to the 2015 SIP call. B. West Virginia’s Provisions Related to Excess Emissions With respect to the West Virginia SIP, in the 2015 SSM SIP Action, EPA determined that 14 provisions were substantially inadequate to meet CAA requirements.5 Three of these provisions allowed for automatic exemptions; eight of these provisions allowed for discretionary exemptions from 2 October 9, 2020, Memorandum ‘‘Inclusion of Provisions Governing Periods of Startup, Shutdown, and Malfunctions in State Implementation Plans,’’ from Andrew R. Wheeler, Administrator. 3 September 30, 2021, Memorandum ‘‘Withdrawal of the October 9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions in State Implementation Plans and Implementation of the Prior Policy,’’ from Janet McCabe, Deputy Administrator. 4 See 80 FR 33840, 33985, June 12, 2015 5 Id. at 33962. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 otherwise applicable SIP emission limitations; one of these provisions imposed an alternative limit on hot mix asphalt plants; one of these provisions allowed the state to establish alternative visible emission standards; one of these was an affirmative defense provision identified by EPA to be substantially inadequate. The rationale underlying EPA’s determination that the provisions were substantially inadequate to meet CAA requirements, and therefore to issue a SIP call to West Virginia to remedy the provisions, is detailed in the 2015 SSM SIP Action and the accompanying proposals. In response to the 2015 SSM SIP Action, West Virginia submitted a SIP revision on June 13, 2017. West Virginia’s submission requested the approval of a new state rule into the West Virginia SIP that sets forth the requirements to establish an AEL for a source that may require an AEL. II. Summary of West Virginia’s SIP Revision and EPA Analysis A. West Virginia’s SIP Revision The new regulations adopted by West Virginia in response to the 2015 SSM SIP Action can be found at W.Va. Code R. 45–1–1 through 45–1–5. Section 45– 1–1.1 explains that the rule contains criteria to establish an alternative emission limitation during startup, shutdown and maintenance, and was adopted to respond to the 2015 SSM SIP Action. Section 45–1–1.5.a states that ‘‘persons’’ subject to 45CSR2 through 7, 45CSR10, 45CSR21, or 45CSR40 that may be unable to meet an emission limit during startup, shutdown or maintenance ‘‘may request’’ an AEL in accordance with 45CSR1–1–3, while 45CSR1–1–5.b states that persons subject to 45CSR16 or 45CSR34 shall meet the applicable startup or shutdown provisions of applicable Federal rules and are not eligible for an AEL. 6 W.Va. Code R. 45–1–2 contains definitions for the new regulation. Notably, the submitted rule does not itself establish any AELs for any sources or categories. Rather, it contains provisions authorizing the Secretary to establish AELs through permits and sets forth certain requirements that any such AELs must meet. Additionally, it provides a mechanism for sources to request AELs by applying for permits, and provides that sources applying for such permits 6 The headings for West Virginia’s regulations use the ‘‘W.Va. Code R. X–X–X’’ format, while references to regulatory sections within the text of the regulation itself follow the ‘‘XCSRX’’ format, where ‘‘X’’ represents a numeral. The remainder of this notice will use the ‘‘XCSRX’’ format for most references. E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 87, No. 245 / Thursday, December 22, 2022 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS1 shall propose AELs that meet the criteria set forth in the rule. The regulation at 45CSR1–3.1 states that the Secretary of WVDEP may establish an AEL ‘‘as a practically enforceable permit condition . . . in accordance with the requirements of 45CSR13, 45CSR14, or 45CSR19 as applicable.’’ 7 The regulations at 45CSR1–3.2 through 45CSR1–3.4 then explain acceptable forms that the AELs may take, so long as the normal permit limits and AELs provide for continuous compliance and do not result in ‘‘effectively unlimited or an uncontrolled level of emissions.’’ These explanations and limitations closely follow the guidance provided by EPA’s 2015 SSM SIP Action.8 Finally, 45CSR1–3.5 states that the Secretary shall use the criteria in 45CSR1–5 to develop the AEL. The criteria in 45CSR1–5.1.a through 45CSR1–5.1.f require that limits developed by the Secretary must closely follow six of the seven specific criteria listed as appropriate considerations for SIP provisions addressing startup and shutdowns in EPA’s 2015 SSM SIP Action.9 Also, 45CSR1–5.2 states that an AEL must require the source to use good practices to minimize emissions and to use best efforts regarding planning, design and operating procedures, which closely parallels the sixth criterion in EPA’s 2015 SSM SIP Action.10 However, 45CSR1–3.5 also allows an AEL to be developed for ‘‘maintenance,’’ while the 2015 SSM SIP Action notes that maintenance is generally included in ‘‘phases of normal operation at a source, for which the source can be designed, operated, and maintained in order to meet the applicable emission limitations and during which a source should be expected to control and minimize emissions. Accordingly, exemptions for emissions during these periods of normal source operation are not consistent with CAA requirements.’’ 11 Because maintenance is a different normal mode of operation, any AEL developed for maintenance periods ‘‘must meet the substantive requirements applicable to the type of SIP provision at issue, must meet the applicable level of stringency for that type of emission limitation and must be legally and practically enforceable.’’ 12 7 45CSR13 generally covers minor source permitting. 45CSR14 is the Prevention of Significant Deterioration (PSD) permit program. 45CSR19 is the nonattainment new source review permit program. 8 80 FR 33840 at 33980, June 12, 2015. 9 Id. 10 Id. 11 80 FR 33913, June 12, 2015. 12 Id. VerDate Sep<11>2014 16:38 Dec 21, 2022 Jkt 259001 Finally, 45CSR1–6 requires that sources maintain certain records during periods of startup, shutdown and maintenance, while 45CSR1–7 states that any inconsistency between this regulation and any rule shall be resolved by the determination of the Secretary of WVDEP based upon application of the more stringent provision. B. EPA’s Analysis EPA has identified several significant concerns with West Virginia’s June 13, 2017, SIP submittal which suggest that it should not be approved. First, the SIP revision did not remove any of the existing West Virginia regulatory provisions from West Virginia’s regulations that were found to be substantially inadequate in the 2015 SSM SIP Action, nor did the revision ask EPA to remove these provisions from the EPA-approved West Virginia SIP. Instead, the SIP submittal asks EPA to approve, as a SIP revision, a newlyadopted West Virginia regulation (45 CSR 1) that allows, but does not require, sources to apply for and receive AELs during periods of startup, shutdown, or maintenance, but not malfunction.13 Moreover, the rule does not establish such limits for the sources that are subject to the automatic or discretionary exemptions provisions. As such, West Virginia’s SIP submittal does not remove from the West Virginia regulations, or from the EPA-approved West Virginia SIP, those provisions allowing automatic exemptions (W. Va. Code R. 45–2–9.1, W. Va. Code R. 45– 7–10.3 and W. Va. Code R. 45–40–100.8) and discretionary exemptions (W. Va. Code R. 45–2–10.1, W. Va. Code R. 45– 3–7.1, W. Va. Code R. 45–5–13.1, W. Va. Code R. 45–6–8.2, W. Va. Code R. 45–7– 9.1, W. Va. Code R. 45–10–9.1 and W. Va. Code R. 45–21–9) from otherwise applicable SIP emission limits. These automatic and discretionary exemptions are still applicable and available to any source covered by these regulations. Therefore, the primary problem expressed in EPA’s 2015 SSM SIP Action—the existence of automatic or discretionary exemptions from otherwise applicable SIP limitations— has not been solved. The new provision allowing sources to apply for AELs is not mandatory, so it is questionable as to why any source would apply for an AEL if the alternative is to do nothing and remain subject to the automatic or discretionary exemption from the limit that is still in West Virginia’s regulations. Finally, even if a source 13 The full text of West Virginia’s adopted regulation, 45 CSR 1, is in the docket for this action. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 78619 covered by one of these automatic or discretionary exemptions for SSM events applies for an AEL, it is not clear from the text of the 45CSR1 regulation that the automatic or discretionary exemptions otherwise allowed by West Virginia’s regulations are not available to a source that is granted an AEL by West Virginia. Without these provisions being removed from West Virginia’s own regulations and the SIP, the foundational problems in West Virginia’s SIP cited by EPA in the 2015 SSM SIP Action still persist. A second concern supporting EPA’s proposed disapproval of the SIP revision is that states may not unilaterally amend their SIPs without the appropriate process contemplated by the CAA. Even if the AEL approval process described in the SIP revision were mandatory for every source with emissions limitations subject to the SIPcalled provisions, all revisions to SIPapproved emissions limitations must be subject to a state public comment process and submitted to EPA for approval. There is no explicit requirement in West Virginia’s proposed SIP revision that would require Stateapproved AELs to be submitted to EPA for approval. Even if West Virginia intended to submit these AELs as SIP revisions, the potential resource burden on West Virginia and EPA in evaluating each single source AEL for both consideration of the criteria for an AEL and compliance with the requirements for revising a SIP could be significant. Additionally, even if all sources were required to put in place AELs upon State approval, and even if all Stateapproved AELs are be submitted for EPA approval into West Virginia’s SIP, until all sources potentially covered by the SIP-called provisions have had their AELs approved into the SIP, West Virginia would still be in violation of EPA’s 2015 SSM SIP Policy and the accompanying SIP calls, and may be subject to sanctions and/or a Federal implementation plan (FIP) accordingly. A third concern is that the additional regulatory language in 45CSR1 added by West Virginia is not in accordance with the first, and potentially most important, of the seven criteria EPA set forth in the 2015 SSM SIP Action. The 2015 SSM SIP Action states that, ‘‘except in the case where a single source or small group of sources has the potential to cause an exceedance of the NAAQS [National Ambient Air Quality Standard] or PSD [prevention of significant deterioration] increments, it may be appropriate, in consultation with EPA, to create narrowly-tailored SIP revisions that take technological limitations into account and state that E:\FR\FM\22DEP1.SGM 22DEP1 lotter on DSK11XQN23PROD with PROPOSALS1 78620 Federal Register / Vol. 87, No. 245 / Thursday, December 22, 2022 / Proposed Rules the otherwise applicable emissions limitations do not apply during narrowly-defined startup and shutdown periods.’’ 14 The 2015 SSM SIP Action outlines seven criteria that would be considered by EPA when determining whether a SIP revision setting an alternative emission limitation during an SSM event complies with the CAA requirements and is therefore approvable. The first criterion is that the revision must be limited to specific, narrowly-defined source categories using specific control strategies. West Virginia’s submittal creates a process in which the Secretary may establish an AEL for a single source on a case-by-case basis, rather than establishing a single AEL applicable to a group of sources within a specific, narrowly-defined source category, which is problematic on its own. In addition, setting AELs on a single source, case-by-case basis raises concerns regarding the consistency of SSM provisions between similar types of sources with similar emission controls. When developing its AEL policy, EPA envisioned that states would create one standard value AEL for startups or shutdowns that would apply to a group of similar sources with similar emission controls, such as coalfired boilers using wet scrubbers to control sulfur dioxide, and would require no further review or judgment by the state or EPA. However, West Virginia’s approach would require each such source to apply for an AEL and potentially receive a different AEL than other similar sources. This could lead to inconsistent alternative limits for sources that should probably have similar alternative limits for startup or shutdown. A fourth concern is that the additional language added by 45CSR1 does not cover malfunctions, while the 2015 SSM SIP Action did cite to certain West Virginia regulations providing for exemptions during malfunctions.15 While the State is not required to establish an AEL for malfunctions, the continued existence of exemptions for malfunction events fails to address the 2015 SSM SIP Action. Another significant concern with West Virginia’s SIP submission is that 45CSR1–1–5.b states that sources subject to new source performance standards (NSPS), as incorporated into 45CSR16, and National Emissions Standards for Hazardous Air Pollutants (NESHAPS), as incorporated into 14 80 FR 33840 at 33914, June 12, 2015. 45CSR2–9.1, 45CSR4–100.8, 45CSR3–7.1, 45CSR5–13.1, 45CSR6–8.2, 45CSR7–9.1, 45CSR10– 9.1, 45CSR21–9. 15 See VerDate Sep<11>2014 16:38 Dec 21, 2022 Jkt 259001 45CSR34, shall follow any SSM provisions set forth in an applicable NSPS and/or NESHAP and is not eligible for an AEL. This reliance on SSM provisions in NSPS and NESHAPS is problematic in some cases for multiple reasons. First, EPA admits that many of the existing NSPS and NESHAP standards still contain exemptions from emission limitations during periods of SSM. The exemptions in these EPA regulations, however, predate the 2008 issuance of the D.C. Circuit decision in Sierra Club v. Johnson, in which the court held that emission limitations must be continuous and thus cannot contain exemptions for emissions during SSM events.16 Likewise, the NSPS general provisions in 40 CFR 60.8 also predate that 2008 court decision. Since the 2008 Sierra Club decision, EPA has been working to remove or revise these SSM provisions as NSPS and NESHAPS are reviewed.17 Thus, some NSPS and NESHAPS have been revised to address the 2008 Sierra Club decision, but some have not, and West Virginia’s 45CSR1– 1–5.b does not distinguish between the updated standards and not-yet-updated standards. Despite the fact that EPA has not completed its work removing SSM provisions from every NSPS and NESHAP, the Agency is not willing to newly approve problematic SSM provisions into SIPs. Second, while the 2015 SSM SIP Action acknowledges that certain Federal rules may provide useful examples of approaches for appropriate and feasible AELs for states to apply during startup and shutdown in a SIP provision (in particular those Federal rules that have been revised or newly promulgated since 2008),18 it should not be assumed that emission limitation requirements in recent NESHAP and NSPS are appropriate for all sources regulated by the SIP. The universe of sources regulated by the Federal NSPS and NESHAP programs is not identical to the universe of sources regulated by states for purposes of the NAAQS. Moreover, the pollutants regulated under the NESHAP program (i.e., hazardous air pollutants) are in many cases different than those that would be regulated for purposes of attaining and maintaining the NAAQS, protecting PSD increments, improving visibility, and meeting other CAA requirements. 16 551 F.3d 1019 (D.C. Cir. 2008). FR 33840 at 33890–91, June 12, 2015. 18 Specifically, EPA is referring to Federal rules for the New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants that have been issued since the D.C. Circuit’s decision of December 19, 2008, Sierra Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008). 17 80 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 See 80 FR 33916, June 12, 2015. Therefore, the particular work practice standards which any particular NSPS or NESHAP adopts for an SSM event as part of a continuously applicable emission limitation would still need to be evaluated on a case-by-case basis as to their applicability and appropriateness as AELs for SIP purposes. Furthermore, the SIP must be clear as to what the applicable limitations are for each source at all times. West Virginia’s regulation at 45CSR1–1–5.b leaves it up to each source to identify which NSPS and/or NESHAP and any applicable SSM provision may apply, which makes it far from clear to EPA and the public which standard applies, making it difficult or impossible to enforce any standard against the source. Finally, EPA also recommends giving consideration to the seven specific criteria delineated in the 2015 SSM SIP Action for developing AELs in SIP provisions that apply during startup and shutdown. See id. at 33980. III. Proposed Action EPA’s review indicates that West Virginia’s submittal (1) does not remove those provisions of State regulation that were identified by the 2015 SIP Action as inconsistent with the CAA, but instead adopts an optional regulatory process for creating source-specific AELs; and (2) requires individual, source-by-source determinations of alternative limits subject only to required State approval, without any requirement that such revisions of otherwise applicable emissions limitations should be submitted to EPA as a separate SIP revision. EPA also believes this source-by-source approach will prove burdensome for both West Virginia and EPA, and potentially result in similar sources in similar source categories receiving different and inconsistent alternative emission limits during startup and shutdown. In addition, as mentioned above, until all sources potentially covered by the SIPcalled provisions have had their AELs approved into the SIP, West Virginia would still be in violation of EPA’s 2015 SSM SIP Policy and the accompanying SIP calls, and may be subject to sanctions and/or a FIP accordingly. For these and other reasons described above, EPA is therefore proposing to disapprove West Virginia’s June 13, 2017 SIP revision that establishes a new rule setting forth the requirements to establish an AEL for a source voluntarily requesting an AEL. EPA is soliciting public comments on the issues discussed in this document. E:\FR\FM\22DEP1.SGM 22DEP1 Federal Register / Vol. 87, No. 245 / Thursday, December 22, 2022 / Proposed Rules These comments will be considered before taking final action. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a ‘‘significant regulatory action’’ as defined by Executive Order 12866 and was therefore not submitted to the Office of Management and Budget for review. B. Paperwork Reduction Act (PRA) This proposed action does not impose an information collection burden under the PRA because it does not contain any information collection activities. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action merely proposes to disapprove a SIP submission as not meeting the CAA. D. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. lotter on DSK11XQN23PROD with PROPOSALS1 E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications as specified in Executive Order 13175. This action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. Thus, Executive Order 13175 does not apply to this action. the EPA has reason to believe may disproportionately affect children, per the definition of ‘‘covered regulatory action’’ in section 2–202 of the Executive order. This action is not subject to Executive Order 13045 because it merely proposes to disapprove a SIP submission as not meeting the CAA. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution or Use This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act This rulemaking does not involve technical standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely proposes to disapprove a SIP submission as not meeting the CAA. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Diana Esher, Acting Regional Administrator, Region III. [FR Doc. 2022–27713 Filed 12–21–22; 8:45 am] BILLING CODE 6560–50–P G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that VerDate Sep<11>2014 16:38 Dec 21, 2022 Jkt 259001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 78621 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA–R01–OAR–2020–0007; FRL–10498– 01–R1] Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants: Air Emissions Standards for Halogenated Solvent Cleaning Machines; State of Rhode Island Department of Environmental Management Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The EPA is proposing to grant the Rhode Island Department of Environmental Management (RI DEM) the authority to implement and enforce the amended Rhode Island Code of Regulations, Control of Emissions from Organic Solvent Cleaning (Organic Solvent Cleaning Rule), and the General Definitions Regulation (General Definitions Rule) in place of the National Emission Standard for Halogenated Solvent Cleaning (Halogenated Solvent NESHAP) as a partial rule substitution as it applies to organic solvent cleaning machines in Rhode Island. Upon approval, RI DEM’s amended Organic Solvent Cleaning Rule and General Definitions Rule would apply to all sources that otherwise would be regulated by the Halogenated Solvent NESHAP, except for continuous web cleaning machines, for which the Halogenated Solvent NESHAP would continue to apply. The EPA has reviewed RI DEM’s request and has preliminarily determined that the State’s amended Organic Solvent Cleaning Rule and General Definitions Rule satisfy the requirements necessary for approval. Thus, the EPA is proposing to approve the request. This approval would make RI DEM’s amended Organic Solvent Cleaning Rule and General Definitions Rule federally enforceable. This action is being taken under the Clean Air Act (CAA). DATES: Written comments must be received on or before January 23, 2023. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R01– OAR–2020–0007 at https:// www.regulations.gov, or via email to bird.patrick@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. SUMMARY: E:\FR\FM\22DEP1.SGM 22DEP1

Agencies

[Federal Register Volume 87, Number 245 (Thursday, December 22, 2022)]
[Rules and Regulations]
[Pages 78617-78621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27713]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2022-0956; FRL-10491-01-R3]


Air Plan Disapproval; West Virginia; Revision to the West 
Virginia State Implementation Plan To Add the SSM Rule 45CSR1--
Alternative Emission Limitations During Startup, Shutdown, and 
Maintenance Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove a state implementation plan (SIP) revision submitted by the 
State of West Virginia on June 13, 2017. The revision pertains to a new 
rule setting forth the requirements to establish, at the discretion of 
the Secretary of the West Virginia Department of Environmental 
Protection (WVDEP), an alternative emission limitation (AEL) for a 
source that requests an AEL. This SIP revision was submitted in 
response to a finding of substantial inadequacy and SIP call published 
on June 12, 2015, for provisions in the West Virginia SIP related to 
excess emissions during startup, shutdown, and malfunction (SSM) 
events. EPA is proposing to disapprove the SIP revision and proposing 
to determine that such SIP revision does not correct the deficiencies 
identified in the June 12, 2015, SIP Call.

DATES: Written comments must be received on or before January 23, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2022-0956 at www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Serena Nichols, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1600 John F. Kennedy 
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is 
(215) 814-2053. Ms. Nichols can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. EPA's 2015 SSM SIP Action

    On February 22, 2013, the EPA issued a Federal Register notice of 
proposed rulemaking (the February 2013 Proposal) outlining EPA's policy 
at the time with respect to SIP provisions related to periods of 
startup, shutdown, and malfunction (SSM). EPA analyzed specific SSM SIP 
provisions and explained how each one either did or did not comply with 
the Clean Air Act (CAA) with regard to excess emission

[[Page 78618]]

events.\1\ For each SIP provision that the EPA determined to be 
inconsistent with the CAA, the EPA proposed to find that the existing 
SIP provision was substantially inadequate to meet CAA requirements and 
thus proposed to issue a SIP call under CAA section 110(k)(5). On 
September 17, 2014, the EPA issued a document supplementing and 
revising what the Agency had previously proposed on February 22, 2013 
(the supplemental notice of proposed rulemaking (SNPR)), in light of a 
D.C. Circuit decision that determined the CAA precludes authority of 
the EPA to create affirmative defense provisions. EPA outlined its 
updated policy that affirmative defense SIP provisions are not 
consistent with CAA requirements. EPA proposed in the supplemental 
proposal document to apply its revised interpretation of the CAA to 
specific affirmative defense SIP provisions and proposed SIP calls for 
those provisions where appropriate (79 FR 55920, September 17, 2014).
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    \1\ State Implementation Plans: Response to Petition for 
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To 
Amend Provisions Applying to Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
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    On June 12, 2015, pursuant to CAA section 110(k)(5), the EPA 
finalized ``State Implementation Plans: Response to Petition for 
Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to 
SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction'' (80 FR 33839 June 12, 2015), hereafter 
referred to as the ``2015 SSM SIP Action.'' The 2015 SSM SIP Action 
clarified, restated, and updated the EPA's interpretation that SSM 
exemptions (whether automatic or discretionary) and affirmative defense 
SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP 
Action found that certain SIP provisions in 36 states were 
substantially inadequate to meet CAA requirements and issued a SIP call 
to those states to submit SIP revisions to address the inadequacies. 
EPA established an 18-month deadline by which the affected states had 
to submit such SIP revisions. States were required to submit corrective 
revisions to their SIPs in response to the SIP calls by November 22, 
2016.
    EPA issued a Memorandum in October 2020 (2020 Memorandum), which 
stated that certain provisions governing SSM periods in SIPs could be 
viewed as consistent with CAA requirements.\2\ Importantly, the 2020 
Memorandum stated that it ``did not alter in any way the determinations 
made in the 2015 SSM SIP Action that identified specific state SIP 
provisions that were substantially inadequate to meet the requirements 
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on 
the SIP call issued to West Virginia in 2015. The 2020 Memorandum did, 
however, indicate the EPA's intent at the time to review SIP calls that 
were issued in the 2015 SSM SIP Action to determine whether the EPA 
should maintain, modify, or withdraw particular SIP calls through 
future agency actions.
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    \2\ October 9, 2020, Memorandum ``Inclusion of Provisions 
Governing Periods of Startup, Shutdown, and Malfunctions in State 
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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    On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 
Memorandum and announced EPA's return to the policy articulated in the 
2015 SSM SIP Action (2021 Memorandum).\3\ As articulated in the 2021 
Memorandum, SIP provisions that contain exemptions or affirmative 
defense provisions are not consistent with CAA requirements and, 
therefore, generally are not approvable if contained in a SIP 
submission. This policy approach is intended to ensure that all 
communities and populations, including overburdened communities, 
receive the full health and environmental protections provided by the 
CAA.\4\ The 2021 Memorandum also retracted the prior statement from the 
2020 Memorandum of EPA's plans to review and potentially modify or 
withdraw particular SIP calls. That statement no longer reflects the 
EPA's intent. EPA intends to implement the principles laid out in the 
2015 SSM SIP Action as the agency takes action on SIP submissions, 
including West Virginia's SIP submittal provided in response to the 
2015 SIP call.
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    \3\ September 30, 2021, Memorandum ``Withdrawal of the October 
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions 
in State Implementation Plans and Implementation of the Prior 
Policy,'' from Janet McCabe, Deputy Administrator.
    \4\ See 80 FR 33840, 33985, June 12, 2015
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B. West Virginia's Provisions Related to Excess Emissions

    With respect to the West Virginia SIP, in the 2015 SSM SIP Action, 
EPA determined that 14 provisions were substantially inadequate to meet 
CAA requirements.\5\ Three of these provisions allowed for automatic 
exemptions; eight of these provisions allowed for discretionary 
exemptions from otherwise applicable SIP emission limitations; one of 
these provisions imposed an alternative limit on hot mix asphalt 
plants; one of these provisions allowed the state to establish 
alternative visible emission standards; one of these was an affirmative 
defense provision identified by EPA to be substantially inadequate. The 
rationale underlying EPA's determination that the provisions were 
substantially inadequate to meet CAA requirements, and therefore to 
issue a SIP call to West Virginia to remedy the provisions, is detailed 
in the 2015 SSM SIP Action and the accompanying proposals.
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    \5\ Id. at 33962.
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    In response to the 2015 SSM SIP Action, West Virginia submitted a 
SIP revision on June 13, 2017. West Virginia's submission requested the 
approval of a new state rule into the West Virginia SIP that sets forth 
the requirements to establish an AEL for a source that may require an 
AEL.

II. Summary of West Virginia's SIP Revision and EPA Analysis

A. West Virginia's SIP Revision

    The new regulations adopted by West Virginia in response to the 
2015 SSM SIP Action can be found at W.Va. Code R. 45-1-1 through 45-1-
5. Section 45-1-1.1 explains that the rule contains criteria to 
establish an alternative emission limitation during startup, shutdown 
and maintenance, and was adopted to respond to the 2015 SSM SIP Action. 
Section 45-1-1.5.a states that ``persons'' subject to 45CSR2 through 7, 
45CSR10, 45CSR21, or 45CSR40 that may be unable to meet an emission 
limit during startup, shutdown or maintenance ``may request'' an AEL in 
accordance with 45CSR1-1-3, while 45CSR1-1-5.b states that persons 
subject to 45CSR16 or 45CSR34 shall meet the applicable startup or 
shutdown provisions of applicable Federal rules and are not eligible 
for an AEL. \6\ W.Va. Code R. 45-1-2 contains definitions for the new 
regulation. Notably, the submitted rule does not itself establish any 
AELs for any sources or categories. Rather, it contains provisions 
authorizing the Secretary to establish AELs through permits and sets 
forth certain requirements that any such AELs must meet. Additionally, 
it provides a mechanism for sources to request AELs by applying for 
permits, and provides that sources applying for such permits

[[Page 78619]]

shall propose AELs that meet the criteria set forth in the rule.
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    \6\ The headings for West Virginia's regulations use the ``W.Va. 
Code R. X-X-X'' format, while references to regulatory sections 
within the text of the regulation itself follow the ``XCSRX'' 
format, where ``X'' represents a numeral. The remainder of this 
notice will use the ``XCSRX'' format for most references.
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    The regulation at 45CSR1-3.1 states that the Secretary of WVDEP may 
establish an AEL ``as a practically enforceable permit condition . . . 
in accordance with the requirements of 45CSR13, 45CSR14, or 45CSR19 as 
applicable.'' \7\ The regulations at 45CSR1-3.2 through 45CSR1-3.4 then 
explain acceptable forms that the AELs may take, so long as the normal 
permit limits and AELs provide for continuous compliance and do not 
result in ``effectively unlimited or an uncontrolled level of 
emissions.'' These explanations and limitations closely follow the 
guidance provided by EPA's 2015 SSM SIP Action.\8\ Finally, 45CSR1-3.5 
states that the Secretary shall use the criteria in 45CSR1-5 to develop 
the AEL.
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    \7\ 45CSR13 generally covers minor source permitting. 45CSR14 is 
the Prevention of Significant Deterioration (PSD) permit program. 
45CSR19 is the nonattainment new source review permit program.
    \8\ 80 FR 33840 at 33980, June 12, 2015.
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    The criteria in 45CSR1-5.1.a through 45CSR1-5.1.f require that 
limits developed by the Secretary must closely follow six of the seven 
specific criteria listed as appropriate considerations for SIP 
provisions addressing startup and shutdowns in EPA's 2015 SSM SIP 
Action.\9\ Also, 45CSR1-5.2 states that an AEL must require the source 
to use good practices to minimize emissions and to use best efforts 
regarding planning, design and operating procedures, which closely 
parallels the sixth criterion in EPA's 2015 SSM SIP Action.\10\ 
However, 45CSR1-3.5 also allows an AEL to be developed for 
``maintenance,'' while the 2015 SSM SIP Action notes that maintenance 
is generally included in ``phases of normal operation at a source, for 
which the source can be designed, operated, and maintained in order to 
meet the applicable emission limitations and during which a source 
should be expected to control and minimize emissions. Accordingly, 
exemptions for emissions during these periods of normal source 
operation are not consistent with CAA requirements.'' \11\ Because 
maintenance is a different normal mode of operation, any AEL developed 
for maintenance periods ``must meet the substantive requirements 
applicable to the type of SIP provision at issue, must meet the 
applicable level of stringency for that type of emission limitation and 
must be legally and practically enforceable.'' \12\
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    \9\ Id.
    \10\ Id.
    \11\ 80 FR 33913, June 12, 2015.
    \12\ Id.
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    Finally, 45CSR1-6 requires that sources maintain certain records 
during periods of startup, shutdown and maintenance, while 45CSR1-7 
states that any inconsistency between this regulation and any rule 
shall be resolved by the determination of the Secretary of WVDEP based 
upon application of the more stringent provision.

B. EPA's Analysis

    EPA has identified several significant concerns with West 
Virginia's June 13, 2017, SIP submittal which suggest that it should 
not be approved. First, the SIP revision did not remove any of the 
existing West Virginia regulatory provisions from West Virginia's 
regulations that were found to be substantially inadequate in the 2015 
SSM SIP Action, nor did the revision ask EPA to remove these provisions 
from the EPA-approved West Virginia SIP. Instead, the SIP submittal 
asks EPA to approve, as a SIP revision, a newly-adopted West Virginia 
regulation (45 CSR 1) that allows, but does not require, sources to 
apply for and receive AELs during periods of startup, shutdown, or 
maintenance, but not malfunction.\13\ Moreover, the rule does not 
establish such limits for the sources that are subject to the automatic 
or discretionary exemptions provisions.
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    \13\ The full text of West Virginia's adopted regulation, 45 CSR 
1, is in the docket for this action.
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    As such, West Virginia's SIP submittal does not remove from the 
West Virginia regulations, or from the EPA-approved West Virginia SIP, 
those provisions allowing automatic exemptions (W. Va. Code R. 45-2-
9.1, W. Va. Code R. 45-7-10.3 and W. Va. Code R. 45-40-100.8) and 
discretionary exemptions (W. Va. Code R. 45-2-10.1, W. Va. Code R. 45-
3-7.1, W. Va. Code R. 45-5-13.1, W. Va. Code R. 45-6-8.2, W. Va. Code 
R. 45-7-9.1, W. Va. Code R. 45-10-9.1 and W. Va. Code R. 45-21-9) from 
otherwise applicable SIP emission limits. These automatic and 
discretionary exemptions are still applicable and available to any 
source covered by these regulations. Therefore, the primary problem 
expressed in EPA's 2015 SSM SIP Action--the existence of automatic or 
discretionary exemptions from otherwise applicable SIP limitations--has 
not been solved. The new provision allowing sources to apply for AELs 
is not mandatory, so it is questionable as to why any source would 
apply for an AEL if the alternative is to do nothing and remain subject 
to the automatic or discretionary exemption from the limit that is 
still in West Virginia's regulations. Finally, even if a source covered 
by one of these automatic or discretionary exemptions for SSM events 
applies for an AEL, it is not clear from the text of the 45CSR1 
regulation that the automatic or discretionary exemptions otherwise 
allowed by West Virginia's regulations are not available to a source 
that is granted an AEL by West Virginia. Without these provisions being 
removed from West Virginia's own regulations and the SIP, the 
foundational problems in West Virginia's SIP cited by EPA in the 2015 
SSM SIP Action still persist.
    A second concern supporting EPA's proposed disapproval of the SIP 
revision is that states may not unilaterally amend their SIPs without 
the appropriate process contemplated by the CAA. Even if the AEL 
approval process described in the SIP revision were mandatory for every 
source with emissions limitations subject to the SIP-called provisions, 
all revisions to SIP-approved emissions limitations must be subject to 
a state public comment process and submitted to EPA for approval. There 
is no explicit requirement in West Virginia's proposed SIP revision 
that would require State-approved AELs to be submitted to EPA for 
approval. Even if West Virginia intended to submit these AELs as SIP 
revisions, the potential resource burden on West Virginia and EPA in 
evaluating each single source AEL for both consideration of the 
criteria for an AEL and compliance with the requirements for revising a 
SIP could be significant.
    Additionally, even if all sources were required to put in place 
AELs upon State approval, and even if all State-approved AELs are be 
submitted for EPA approval into West Virginia's SIP, until all sources 
potentially covered by the SIP-called provisions have had their AELs 
approved into the SIP, West Virginia would still be in violation of 
EPA's 2015 SSM SIP Policy and the accompanying SIP calls, and may be 
subject to sanctions and/or a Federal implementation plan (FIP) 
accordingly.
    A third concern is that the additional regulatory language in 
45CSR1 added by West Virginia is not in accordance with the first, and 
potentially most important, of the seven criteria EPA set forth in the 
2015 SSM SIP Action. The 2015 SSM SIP Action states that, ``except in 
the case where a single source or small group of sources has the 
potential to cause an exceedance of the NAAQS [National Ambient Air 
Quality Standard] or PSD [prevention of significant deterioration] 
increments, it may be appropriate, in consultation with EPA, to create 
narrowly-tailored SIP revisions that take technological limitations 
into account and state that

[[Page 78620]]

the otherwise applicable emissions limitations do not apply during 
narrowly-defined startup and shutdown periods.'' \14\ The 2015 SSM SIP 
Action outlines seven criteria that would be considered by EPA when 
determining whether a SIP revision setting an alternative emission 
limitation during an SSM event complies with the CAA requirements and 
is therefore approvable. The first criterion is that the revision must 
be limited to specific, narrowly-defined source categories using 
specific control strategies.
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    \14\ 80 FR 33840 at 33914, June 12, 2015.
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    West Virginia's submittal creates a process in which the Secretary 
may establish an AEL for a single source on a case-by-case basis, 
rather than establishing a single AEL applicable to a group of sources 
within a specific, narrowly-defined source category, which is 
problematic on its own. In addition, setting AELs on a single source, 
case-by-case basis raises concerns regarding the consistency of SSM 
provisions between similar types of sources with similar emission 
controls. When developing its AEL policy, EPA envisioned that states 
would create one standard value AEL for startups or shutdowns that 
would apply to a group of similar sources with similar emission 
controls, such as coal-fired boilers using wet scrubbers to control 
sulfur dioxide, and would require no further review or judgment by the 
state or EPA. However, West Virginia's approach would require each such 
source to apply for an AEL and potentially receive a different AEL than 
other similar sources. This could lead to inconsistent alternative 
limits for sources that should probably have similar alternative limits 
for startup or shutdown.
    A fourth concern is that the additional language added by 45CSR1 
does not cover malfunctions, while the 2015 SSM SIP Action did cite to 
certain West Virginia regulations providing for exemptions during 
malfunctions.\15\ While the State is not required to establish an AEL 
for malfunctions, the continued existence of exemptions for malfunction 
events fails to address the 2015 SSM SIP Action.
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    \15\ See 45CSR2-9.1, 45CSR4-100.8, 45CSR3-7.1, 45CSR5-13.1, 
45CSR6-8.2, 45CSR7-9.1, 45CSR10-9.1, 45CSR21-9.
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    Another significant concern with West Virginia's SIP submission is 
that 45CSR1-1-5.b states that sources subject to new source performance 
standards (NSPS), as incorporated into 45CSR16, and National Emissions 
Standards for Hazardous Air Pollutants (NESHAPS), as incorporated into 
45CSR34, shall follow any SSM provisions set forth in an applicable 
NSPS and/or NESHAP and is not eligible for an AEL. This reliance on SSM 
provisions in NSPS and NESHAPS is problematic in some cases for 
multiple reasons.
    First, EPA admits that many of the existing NSPS and NESHAP 
standards still contain exemptions from emission limitations during 
periods of SSM. The exemptions in these EPA regulations, however, 
predate the 2008 issuance of the D.C. Circuit decision in Sierra Club 
v. Johnson, in which the court held that emission limitations must be 
continuous and thus cannot contain exemptions for emissions during SSM 
events.\16\ Likewise, the NSPS general provisions in 40 CFR 60.8 also 
predate that 2008 court decision. Since the 2008 Sierra Club decision, 
EPA has been working to remove or revise these SSM provisions as NSPS 
and NESHAPS are reviewed.\17\ Thus, some NSPS and NESHAPS have been 
revised to address the 2008 Sierra Club decision, but some have not, 
and West Virginia's 45CSR1-1-5.b does not distinguish between the 
updated standards and not-yet-updated standards. Despite the fact that 
EPA has not completed its work removing SSM provisions from every NSPS 
and NESHAP, the Agency is not willing to newly approve problematic SSM 
provisions into SIPs.
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    \16\ 551 F.3d 1019 (D.C. Cir. 2008).
    \17\ 80 FR 33840 at 33890-91, June 12, 2015.
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    Second, while the 2015 SSM SIP Action acknowledges that certain 
Federal rules may provide useful examples of approaches for appropriate 
and feasible AELs for states to apply during startup and shutdown in a 
SIP provision (in particular those Federal rules that have been revised 
or newly promulgated since 2008),\18\ it should not be assumed that 
emission limitation requirements in recent NESHAP and NSPS are 
appropriate for all sources regulated by the SIP. The universe of 
sources regulated by the Federal NSPS and NESHAP programs is not 
identical to the universe of sources regulated by states for purposes 
of the NAAQS. Moreover, the pollutants regulated under the NESHAP 
program (i.e., hazardous air pollutants) are in many cases different 
than those that would be regulated for purposes of attaining and 
maintaining the NAAQS, protecting PSD increments, improving visibility, 
and meeting other CAA requirements. See 80 FR 33916, June 12, 2015. 
Therefore, the particular work practice standards which any particular 
NSPS or NESHAP adopts for an SSM event as part of a continuously 
applicable emission limitation would still need to be evaluated on a 
case-by-case basis as to their applicability and appropriateness as 
AELs for SIP purposes. Furthermore, the SIP must be clear as to what 
the applicable limitations are for each source at all times. West 
Virginia's regulation at 45CSR1-1-5.b leaves it up to each source to 
identify which NSPS and/or NESHAP and any applicable SSM provision may 
apply, which makes it far from clear to EPA and the public which 
standard applies, making it difficult or impossible to enforce any 
standard against the source. Finally, EPA also recommends giving 
consideration to the seven specific criteria delineated in the 2015 SSM 
SIP Action for developing AELs in SIP provisions that apply during 
startup and shutdown. See id. at 33980.
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    \18\ Specifically, EPA is referring to Federal rules for the New 
Source Performance Standards and National Emission Standards for 
Hazardous Air Pollutants that have been issued since the D.C. 
Circuit's decision of December 19, 2008, Sierra Club v. Johnson, 551 
F.3d 1019 (D.C. Cir. 2008).
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III. Proposed Action

    EPA's review indicates that West Virginia's submittal (1) does not 
remove those provisions of State regulation that were identified by the 
2015 SIP Action as inconsistent with the CAA, but instead adopts an 
optional regulatory process for creating source-specific AELs; and (2) 
requires individual, source-by-source determinations of alternative 
limits subject only to required State approval, without any requirement 
that such revisions of otherwise applicable emissions limitations 
should be submitted to EPA as a separate SIP revision. EPA also 
believes this source-by-source approach will prove burdensome for both 
West Virginia and EPA, and potentially result in similar sources in 
similar source categories receiving different and inconsistent 
alternative emission limits during startup and shutdown. In addition, 
as mentioned above, until all sources potentially covered by the SIP-
called provisions have had their AELs approved into the SIP, West 
Virginia would still be in violation of EPA's 2015 SSM SIP Policy and 
the accompanying SIP calls, and may be subject to sanctions and/or a 
FIP accordingly. For these and other reasons described above, EPA is 
therefore proposing to disapprove West Virginia's June 13, 2017 SIP 
revision that establishes a new rule setting forth the requirements to 
establish an AEL for a source voluntarily requesting an AEL. EPA is 
soliciting public comments on the issues discussed in this document.

[[Page 78621]]

These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' as defined 
by Executive Order 12866 and was therefore not submitted to the Office 
of Management and Budget for review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely proposes to disapprove a SIP submission as not meeting 
the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it merely proposes to disapprove a SIP 
submission as not meeting the CAA.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations.
    This action merely proposes to disapprove a SIP submission as not 
meeting the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-27713 Filed 12-21-22; 8:45 am]
BILLING CODE 6560-50-P
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