Air Plan Disapproval; West Virginia; Revision to the West Virginia State Implementation Plan To Add the Startup, Shutdown, Maintenance Rule 45CSR1-Alternative Emission Limitations During Startup, Shutdown, and Maintenance Operations, 23356-23361 [2023-07615]
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CONTACT section for additional
availability information.
ENVIRONMENTAL PROTECTION
AGENCY
FOR FURTHER INFORMATION CONTACT:
40 CFR Part 52
[EPA–R03–OAR–2022–0956; FRL–10885–
02–R3]
Air Plan Disapproval; West Virginia;
Revision to the West Virginia State
Implementation Plan To Add the
Startup, Shutdown, Maintenance Rule
45CSR1—Alternative Emission
Limitations During Startup, Shutdown,
and Maintenance Operations
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
On June 12, 2015, pursuant to CAA
section 110(k)(5), the EPA finalized
‘‘State Implementation Plans: Response
to Petition for Rulemaking; Restatement
SUMMARY: The Environmental Protection and Update of EPA’s SSM Policy
Agency (EPA) is disapproving a state
Applicable to SIPs; Findings of
implementation plan (SIP) revision
Substantial Inadequacy; and SIP Calls to
submitted by the State of West Virginia
Amend Provisions Applying to Excess
on June 13, 2017. The revision pertains
Emissions During Periods of Startup,
to a new rule setting forth the
Shutdown and Malfunction,’’ 1 hereafter
requirements to establish, at the
referred to as the ‘‘2015 SSM SIP
discretion of the Secretary of the West
Action.’’ The 2015 SSM SIP Action
Virginia Department of Environmental
clarified, restated, and updated the
Protection, an alternative emission
EPA’s interpretation that SSM
limitation (AEL) for a source that
exemptions (whether automatic or
discretionary) and affirmative defense
requests an AEL. This SIP revision was
SIP provisions are inconsistent with
submitted subsequent to a finding of
CAA requirements. The 2015 SSM SIP
substantial inadequacy and SIP call
Action found that certain SIP provisions
published on June 12, 2015, for
in 36 states were substantially
provisions in the West Virginia SIP
inadequate to meet CAA requirements
related to excess emissions during
and issued a SIP call to those states to
startup, shutdown, and malfunction
submit SIP revisions to address the
(SSM) events. EPA is disapproving this
inadequacies. EPA established an 18revision to the West Virginia SIP
month deadline by which the affected
because it does not comply with the
states had to submit such SIP revisions.
requirements of the Clean Air Act
States were required to submit
(CAA). EPA will also be issuing a
corrective revisions to their SIPs in
finding of failure to submit (FFS) in a
response to the SIP calls by November
separate action, published elsewhere in
22, 2016. With respect to the West
this issue of the Federal Register, to
address West Virginia’s failure to correct Virginia SIP, in the 2015 SSM SIP
Action, EPA determined that 14
the deficiencies identified in the June
provisions were substantially
12, 2015, SIP call.
inadequate to meet CAA requirements.
DATES: This final action is effective on
On June 13, 2017, West Virginia
May 17, 2023.
submitted a SIP revision requesting the
ADDRESSES: EPA has established a
approval of a new state rule into the
docket for this action under Docket ID
West Virginia SIP that sets forth the
Number EPA–R03–OAR–2022–0956. All requirements to establish an AEL for a
documents in the docket are listed on
source that may require an AEL. The
the www.regulations.gov website.
new West Virginia regulation, found at
Although listed in the index, some
45 Code of State Rules (CSR) 1, is
information is not publicly available,
referred to as ‘‘Rule 1’’ in West
e.g., confidential business information
Virginia’s SIP submission, and will be
(CBI) or other information whose
referred to the same way here.
disclosure is restricted by statute.
On December 22, 2022, EPA
Certain other material, such as
published a notice of proposed
copyrighted material, is not placed on
rulemaking (NPRM) related to West
the internet and will be publicly
Virginia’s June 13, 2017 submittal.2 In
available only in hard copy form.
that document, EPA proposed
Publicly available docket materials are
disapproval of West Virginia’s submittal
available through www.regulations.gov,
1 80 FR 33839, June 12, 2015.
or please contact the person identified
2 87 FR 78617, December 22, 2022.
in the FOR FURTHER INFORMATION
Environmental Protection
Agency (EPA).
ACTION: Final action.
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for multiple reasons. These reasons
included: (1) the SIP revision did not
remove any of the existing West Virginia
SSM exemptions identified as
substantially inadequate in the 2015
SSM SIP Action; (2) the new AEL
regulations did not specify that any
AELs granted by the state would be
submitted to EPA as SIP revisions; (3)
the AEL regulations allowed sources to
request AELs on a case-by-case basis,
rather than adopting AELs for a narrow
category of sources with similar
characteristics and controls; (4) the AEL
regulations did not allow for AELs for
malfunctions; and (5) sources subject to
the new source performance standard
(NSPS) or national emission standard
for hazardous air pollutants (NESHAPS)
with startup and shutdown provisions
could not obtain AELs and instead had
to comply with the startup or shutdown
standards in the applicable NSPS and/
or NESHAP. A more complete
explanation of the reasons for the
proposed disapproval can be found in
the December 22, 2022 NPRM.
In response to the NPRM, West
Virginia submitted comments claiming
that EPA failed to understand that the
SIP revision allowing for AELs was only
a first step in responding to the 2015
SSM SIP Action, and that therefore the
AEL SIP revision should be judged
solely on its own approvability under
the Clean Air Act. Given this new
information, which was not clearly
stated in the documents included in the
AEL SIP revision package, EPA is now
assessing this AEL SIP revision
independently of the state SIP
provisions identified as the basis for
West Virginia’s inclusion in the 2015
SSM SIP Action. That is, EPA has
reviewed the SIP submission solely on
the basis of whether it meets the
requirements of the Clean Air Act,
rather than assessing whether it also
addresses the deficiencies cited in the
2015 SSM SIP Action. However, when
reviewed solely on this basis, and as
discussed in response to West Virginia’s
comments below, the AEL SIP revision
is not approvable as a SIP revision
under section 110 of the CAA. In
addition, based on West Virginia’s
clarification, EPA is also taking a
separate action, published elsewhere in
this issue of the Federal Register,
making a FFS for West Virginia’s failure
to submit any SIP revision addressing
the 14 State regulatory provisions
identified in the 2015 SSM SIP Action.
II. EPA’s Response to Comments
Received
EPA received two sets of comments
on the December 22, 2022 NPRM. The
full text of the comments is in the
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docket for this action. A summary of the
comments and EPA’s responses are
provided herein.
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A. Summary of Comments From the
Sierra Club and the Environmental
Integrity Project.
Comment: These commenters agree
with EPA’s proposed disapproval of
West Virginia’s SSM SIP submittal, and
offer three major reasons why EPA
should disapprove West Virginia’s SIP
submission: (1) West Virginia’s SIP call
response did not remove the unlawful
SSM SIP provisions, (2) West Virginia’s
proposed AEL rule would unilaterally
amend its SIPs through permits without
undergoing the SIP revision process,
and (3) West Virginia’s proposed AEL
rule does not comply with the CAA and
the SSM SIP call guidance on AELs. As
a result, these commenters urge EPA to
propose a FIP to remove the unlawful
SSM SIP provisions.
Response: The first three points raised
by this commenter are similar to reasons
EPA cited for proposing to disapprove
West Virginia’s SIP revision. In response
to the request that EPA promulgate a FIP
if West Virginia does not promptly
submit a SIP revision addressing this
disapproval, EPA notes that the states
are not required to adopt and submit to
EPA SIP revisions creating AELs for
periods of SSM. States may choose to
remove SSM exemptions, director’s
discretion provisions, and affirmative
defense provisions and not provide
alternative limits for periods of SSM.
Thus, following this disapproval, West
Virginia could choose to not create new
AEL regulations and submit those as a
SIP revision, and instead rely upon their
enforcement discretion should a source
exceed an emission limit which is part
of the EPA-approved SIP. In a separate
action, published elsewhere in this
issue of the Federal Register, EPA is
issuing an FFS for West Virginia’s
failure to address the issues cited in the
2015 SSM SIP Action, and that FFS will
provide deadlines, in accordance with
CAA sections 110(c) and 179(a).
B. Summary of Comments From the
West Virginia Department of
Environmental Protection (WVDEP).
WVDEP objects to the proposed
disapproval for multiple reasons, with
the most important being that the SIP
submittal was not intended to be a full
remedy to the 2015 SSM SIP call. West
Virginia also claims that EPA’s lack of
communication with West Virginia
deprived the State of an opportunity to
remedy the issues cited in the
disapproval prior to the proposed
disapproval. In addition, West Virginia
also requests that EPA not take final
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action on this SIP revision until a
decision is issued by the U.S. Court of
Appeals for the D.C. Circuit in a lawsuit
challenging EPA’s SIP call. West
Virginia’s concerns are set forth with
more specificity below.
Comment: West Virginia asks that
EPA delay final action on this SIP
submission until the United States
Court of Appeals for the D.C. Circuit
issues its ruling on the lawsuits seeking
to challenge EPA’s issuance of the 2015
SSM SIP Action.3
Response: EPA is under a courtordered deadline to take final action on
West Virginia’s AEL SIP submittal.4
Given this deadline, EPA cannot wait to
take final action on West Virginia’s AEL
SIP submittal until the D.C. Circuit rules
on the lawsuits challenging the 2015
SSM SIP Call. The judicial consent
decree requires EPA to take final action
on the West Virginia AEL SIP submittal
within 240 days of the Court’s entry of
the final decree. Public notice and
opportunity to comment upon this
consent decree was published on April
11, 2022. No comments were received
from West Virginia. The consent decree
was entered on June 27, 2022, and as
such the 240-day deadline for taking
final action was February 22, 2023, but
was extended to April 12, 2023 by court
order.
Even if there were not a court-ordered
deadline for EPA to take action, it
would not be appropriate or necessary
to wait until the D.C. Circuit rules on
the lawsuits challenging the 2015 SSM
SIP Call. EPA’s disapproval of West
Virginia’s AEL SIP submission is based
on other CAA legal deficiencies that are
unrelated to the deficiencies and
Agency policies underlying the 2015
SSM SIP Call (for example, the fact that
West Virginia’s submission would allow
for changes to West Virginia’s SIP
without appropriate procedures), and
thus are irrelevant to the D.C. Circuit’s
eventual decision.
Comment: West Virginia states that
the only purpose of the 2017 West
Virginia SIP revision was to add Rule 1
into the West Virginia SIP, and that
nothing in the 2017 SIP revision states
that the revision was intended to be a
complete response to the 2015 SSM SIP
Action. West Virginia further states that
it was considering revising or removing
requirements identified in the 2015
SSM SIP Action through subsequent
legislative rulemaking after sources had
a SIP-approved mechanism to obtain
AELs, but that EPA’s failure to take
3 Environ. Comm. Fl. Elec. Power v. EPA, et al,
No. 15–1239 (D.C. Cir.) (and consolidated cases).
4 Sierra Club, et. al., v. Michael S. Regan, Case
No. 4:21–cv–6956–SBA (N.D. Ca., Sept. 8, 2021).
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timely action on the 2017 SIP revision
prevented West Virginia from doing so.
Therefore, West Virginia argues that this
SIP revision should have been evaluated
on its own merits, and EPA’s reliance on
West Virginia’s failure to remove the
provisions allowing exemptions from
emission limits during SSM events cited
in the 2015 SSM SIP Call is irrelevant.
Response: EPA notes that West
Virginia’s 2017 SIP submission did not
specifically state that it was only a first
step in addressing the 2015 SSM SIP
Call. EPA reviewed the SIP submission
and found that, in response to a
comment submitted by the Sierra Club,
West Virginia stated that ‘‘Division of
Air Quality (DAQ) intends to propose
removal of the provisions identified in
the SSM SIP Call after 45 CSR1 is
effective.’’ West Virginia’s own
comments do not cite to this statement
in its SIP submission. In the absence of
a specific statement directed to EPA in
the SIP submittal noting that this was
DAQ’s plan, it is easy to see how EPA
misunderstood DAQ’s intent.
In response to this clarification by
West Virginia, EPA is no longer
identifying the AEL submission’s failure
to fully address the SIP call as a basis
for its disapproval. Instead, in a separate
action published elsewhere in the
‘‘Rules’’ section of this issue of the
Federal Register, EPA is issuing a FFS
for West Virginia’s failure to submit SIP
revisions addressing the other
deficiencies identified in the 2015 SSM
SIP Action.5 The reasons for issuing a
FFS will be discussed in that separate
action and therefore are not discussed
here.
Regarding West Virginia’s claim that
it was hampered by a lack of
communication from EPA, the Region
and Agency has publicly recognized
that there were changes to the Agency’s
SSM policy in 2020 and 2021 6 which
could have caused confusion and delay
in the submission of SIP revisions.
However, the policy changes occurred
well after the November 2016 deadline
for submitting SIP revisions set by the
2015 SSM SIP Call, which is still in
place, and was never lifted. Indeed, the
2020 Memorandum specifically noted
that it ‘‘[did] not alter in any way the
determinations made in the 2015 SSM
SIP Action that identified specific state
5 See
Docket ID No. EPA–R03–OAR–2023–0179.
9, 2020, Memorandum ‘‘Inclusion of
Provisions Governing Periods of Startup,
Shutdown, and Malfunctions in State
Implementation Plans,’’ from Andrew R. Wheeler,
Administrator. 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.
6 October
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SIP provisions that were substantially
inadequate to meet the requirements of
the Act.’’ 7
Finally, based on EPA’s new
understanding of West Virginia’s
intention in submitting the AEL SIP
revision, EPA has analyzed the 2017
AEL SIP revision on its own merits, but
nevertheless finds that the AEL SIP
revision is not approvable for two
reasons that are independent of the 2015
SSM SIP Action. First, as noted in the
NPRM, the AEL SIP revision cannot be
approved because it does not specify
that any AEL granted by West Virginia
must be submitted to EPA as a SIP
revision for approval. Instead, West
Virginia’s comments note that the
submitted AEL regulations require that
any AEL granted by West Virginia must
be incorporated into a permit under
West Virginia Rule 13, Rule 14, or Rule
19, and that each of these permitting
programs are approved by EPA as part
of the SIP. West Virginia cites to its
original response to EPA’s 2016
comments when Rule 1 was proposed at
the State level:
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These permitting rules are all SIP approved
and are an integral part of the State air
program designed to address compliance
with the NAAQS [National Ambient Air
Quality Standard]. By virtue of their SIP
approval, it is immaterial whether an AEL is
directly approved into the SIP because it will
be embodied in a permit under a SIP
approved program and is therefore fully
federally enforceable.
West Virginia’s comment does not
address the most important element of
EPA’s concern, which is that these
regulations creating AELs do not require
that the AELs, when issued, be
submitted to EPA for approval as a SIP
revision. While inclusion of the AEL
limits in a permit issued under an EPAapproved permitting program in the SIP
does make the limit federally
enforceable, it does not provide a SIP
mechanism for assuring that SIP limits
would not be changed without first
going through the CAA’s SIP revision
process. To the contrary, it creates a
non-SIP mechanism for amending the
SIP by creating alternatives to it. It also
creates the potential for confusion
because the associated AEL would not
be contained in the SIP with the SIP
limits that it amends, and it allows for
the possibility of non-SIP AELs that
conflict with the SIP limits. Moreover,
it does so without opportunity for EPA
review or disapproval where the AEL
fails to meet CAA requirements. Any
AEL which revises a limit that is EPAapproved as part of the West Virginia
SIP must go through the process of
7 October
9, 2020 Memorandum at 3.
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being submitted as a SIP revision in
accordance with CAA section 110.
EPA’s SIP call makes clear that AELs
that modify SIP-approved emissions
limitations, whether adopted on a caseby-case basis or as an AEL generally
applicable to a narrow category of
similar sources, must be presented to
EPA for approval as a SIP revision, and
go through the SIP revision process.
This is because the AELs at issue here
would be changes to a state emission
regulation adopted as part of the state’s
SIP to implement the CAA, and as such
must be approved as a SIP revision by
EPA. States cannot unilaterally make
changes to SIP-approved emission limits
without the requirements of CAA
section 110 being met, including a
public comment process and EPA
approval.
EPA specifically addressed this
concern in the 2015 SSM SIP Action, at
80 FR 33918, June 12, 2015:
Pursuant to the EPA’s own responsibilities
under sections 110(k)(3), 110(l) and 193 . . .,
it would be inappropriate for the Agency to
approve a SIP provision that automatically
preauthorized the state unilaterally to revise
the SIP emission limitation without meeting
the applicable procedural and substantive
statutory requirements for a SIP revision.
The 2015 SSM SIP Action also stated—
It is a fundamental tenet of the CAA that
states cannot unilaterally change SIP
provisions, including the emission
limitations within SIP provisions, without
the EPA’s approval of the change through the
appropriate process.
Thus, the fact that an AEL must be
incorporated into a permit that is part of
the EPA-approved West Virginia SIP
does not do away with this requirement
that the AEL be submitted as a SIP
revision and go through the SIP revision
process.
The second reason for disapproving
the AEL SIP submission which is
unrelated to the deficiencies in the 2015
SSM SIP Action is that the AEL
prohibits a source from obtaining an
AEL if that source is subject to a CAA
section 111 Federal new source
performance standard (NSPS) and/or a
national emission standard for
hazardous air pollutants (NESHAP)
under section 112, and that NSPS or
NESHAP has a startup or shutdown
provision. The regulation at 45CSR1–
1.5.b specifically states that persons
subject to NSPS in 45CSR16 or to
NESHAPS in 45CSR34 ‘‘shall meet the
applicable startup and shutdown
provisions of the applicable Federal rule
and are not eligible for an alternative
emission limit under this rule for
affected sources.’’ As EPA explained in
the 2015 SSM SIP Action and in the
NPRM for this action, those NSPS and
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NESHAPS adopted before 2008 but not
yet updated may contain problematic
exemptions for startups and shutdowns
that have not yet been corrected to
comply with the 2008 Sierra Club v.
Johnson decision.8 West Virginia’s
45CSR1–1–5.b does not distinguish
between the updated standards and notyet-updated standards. For those notyet-updated, the Agency cannot approve
as a SIP revision a regulation that allows
these NSPS and/or NESHAP-related
SSM provisions to continue to exist in
State-issued permits, nor can it approve
a blanket provision preventing the State
from issuing or revising permits to
address the problematic provisions.9 In
addition, West Virginia’s blanket rule
requiring sources to follow applicable
NSPS or NESHAP startup and shutdown
provisions assumes that emission
limitation requirements in recent
NESHAP and NSPS are appropriate for
all pollutants and sources regulated by
the SIP. That is, the NSPS or NESHAP
may not be designed to address the
excess emission of NAAQS pollutants,
which the SIPs seek to control, and as
such may not adequately address excess
emission of NAAQS pollutants during
startup or shutdown. West Virginia’s
regulation assumes, without support,
that NSPS and/or NESHAP startup and
shutdown provisions are directed at
controlling emissions of NAAQS
pollutants, which may not be the case.
Thus, a source’s compliance with an
NSPS or NESHAP startup or shutdown
provision is not guaranteed to address
excessive emissions of NAAQS
pollutants or precursors. Therefore, the
particular emissions limitation which
any particular NSPS or NESHAP adopts
for a startup or shutdown 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.
Comment: Rule 1 does not establish
limits for sources. West Virginia objects
to EPA citing as one reason for the
disapproval the fact that the SIP
submittal setting AEL requirements did
not address those provisions of West
Virginia’s regulations granting sources
an automatic or discretionary exemption
during SSM events that were
specifically cited by EPA in the 2015
SSM SIP Action. West Virginia notes
that states are allowed some discretion
in how they establish programs to meet
CAA requirements, and they chose to
adopt the guidance and codify the
requirements for sources to establish
AELs. West Virginia also seems to
8 87
FR 78617, at 78620, December 22, 2022.
9 Id.
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believe that EPA’s comments ‘‘suggest
that West Virginia should have
conducted a detailed technical analysis
for each distinct category of sources
. . .’’.
Response: As noted above, in
response to West Virginia’s claim that
the AEL SIP revision was not intended
to address all of the deficiencies cited in
the 2015 SSM SIP Action, EPA is
evaluating the AEL SIP submission
solely as to whether it meets the
requirements for approvability under
the CAA, without regard to whether it
addresses all the 2015 SSM SIP Action
deficiencies. Thus, whether the AEL SIP
submission addresses all the SIP Action
deficiencies is no longer relevant to this
action.
Regarding the claim that EPA’s
proposal suggests that West Virginia
should have conducted an analysis for
each distinct category of sources, EPA
believes that West Virginia is
misinterpreting the discussion in the
proposed disapproval at 87 FR 78620
(87 FR 78617, December 22, 2022). That
discussion points out that some NSPS
and NESHAP regulate pollutants other
than criteria pollutants. Therefore,
controls, operational standards and
other measures in those regulations that
are meant to address non-criteria
pollutants may not work for criteria
pollutants. As such, reliance by a state
on the NSPS or NESHAP control
requirements may not address the
emission of pollutants regulated by a
state’s SIP.
Comment: WVDEP did not and does
not now consider it necessary to require
all sources to apply for an AEL, nor is
it necessary for the DEP to conduct a
detailed analysis to review every permit
for every source to make that
determination.
Response: EPA agrees that it may not
be necessary for all sources to apply for
an AEL. However, the EPA statement
quoted in West Virginia’s comments
does not say or imply that every source
must apply for an AEL. As noted above,
EPA also did not state that West
Virginia must conduct a detailed
analysis of every permit for every
source.
Comment: The WVDEP disagrees with
the EPA’s concern regarding the first of
the seven criteria set forth in the 2015
SSM SIP Action because the criterion
for narrowly defined source categories
using specific control strategies is
embodied in the West Virginia case-bycase approach codified in Rule 1.
WVDEP argues that the EPA has been
unable to define alternatives for
narrowly defined source categories in
the almost eight years since it finalized
the 2015 SSM SIP Call and objects to
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EPA’s expectation that the states do the
same in a much shorter time frame and
without EPA assistance.
Response: EPA agrees that West
Virginia’s case-by-case approach to
AELs embodies the idea of granting
AELs narrowly to specific types of
sources using specific controls.
However, EPA continues to believe that
the case-by-case approach could prove
to be a resource-intensive endeavor for
WVDEP. As such, EPA reiterates that
West Virginia could meet the
requirements of the 2015 SSM SIP
Action by removing the cited SSM
exemptions from its SIP. There is no
requirement that West Virginia adopt an
AEL regulation to address the SIP call.
This approach would avoid West
Virginia having to undertake the
potentially difficult task of creating
AELs. If West Virginia nevertheless
decides to proceed with a case-by-case
AEL approach, the important point is
that the regulation allowing for AELs
must make it clear that each AEL must
be submitted as a SIP revision to EPA
for approval in accordance with section
110 of the CAA. In addition, as EPA
explained in the proposed disapproval,
West Virginia’s case-by-case approach
could lead to inconsistent alternative
limits for sources that, based on similar
operating characteristics, fuels, and
other similar traits, should have similar
AELs, and makes it difficult to consider
any cumulative impact of sourcespecific emission limitations on West
Virginia’s air quality. Moreover,
consistent with the court decision in
Sierra Club v. EPA, 551 F.3d 1019 (D.C.
Cir. (2008)) and provisions set forth in
CAA section 302(k), EPA is revising
NESHAP and NSPS regulations, which
generally apply to defined source
categories and require specific emission
controls or other standards, as they
come up for statutorily required review
to eliminate SSM exemptions and
ensure that standards apply at all times.
Comment: The fact that malfunctions
are not included in the scope of 45CSR1
is not a reason for the SIP to be
disapproved.
Response: EPA agrees. In the NPRM,
EPA specifically points out that states
are not required to establish an AEL for
malfunction.10
Comment: WVDEP does not agree that
an AEL developed by the EPA under the
NESHAP program for an overlapping
source category would not be relevant
for sources covered by Rule 1. The
WVDEP is confused by the EPA’s
argument that West Virginia should rely
on a case-by-case analysis regarding the
use of alternative limits allowed under
10 87
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a particular NSPS or NESHAP, which
contradicts EPA’s previous concern
regarding WVDEP use of case-by-case
analysis under Rule 1.
Response: EPA has reviewed the
NPRM and cannot identify an EPA
statement suggesting that an AEL
developed by EPA under the NESHAP
program for an overlapping source
category 11 would not be relevant for
sources seeking an AEL under Rule 1.
EPA believes that West Virginia is
conflating EPA’s concern that existing
SSM exemptions in NESHAPS should
not be relied upon with EPA’s other
expressed concern that NESHAPS may
not be focused on addressing criteria
pollutants (or criteria pollutant precursors), so reliance on limits in such
NESHAP limits addressing periods of
SSM for these other pollutants may not
control certain criteria pollutants, which
are the focus of SIPs. The discussion of
these issues, at 87 FR 78620 of EPA’s
NPRM, was in the context of 45CSR1–
1–5.b, which states that sources subject
to NSPS, as incorporated into 45CSR16,
and NESHAPS, as incorporated into
45CSR34, shall follow any startup or
shutdown provisions set forth in an
applicable NSPS and/or NESHAP and is
not eligible for an AEL. EPA has been
clear that state reliance on NSPS or
NESHAPs with ‘‘legacy’’ SSM
exemptions is not an acceptable
alternative to the removal of the specific
SSM provisions cited in the 2015 SSM
SIP Call. EPA is separately working to
remove these SSM exemptions, and if
EPA develops AELs for emissions of
certain NAAQS pollutants when
removing these SSM provisions from
NSPS and NESHAPS, those AELs may
be relevant for purposes of the state if
it elects to set an AEL for the same
NAAQS pollutants when removing SSM
provisions from its SIP. If EPA has not
yet removed such SSM exemption, the
state may, in conjunction with removing
its SIP-based SSM exemption, elect to
establish an AEL. If so, it would need to
perform a ‘‘case-by-case’’ analysis of the
particular source category at issue to
determine what would constitute an
appropriate AEL. EPA also notes, again,
that West Virginia could resolve the
CAA violations detailed in the 2015
SSM SIP Call without implementing any
AELs, but simply by removing the
violating provisions from the State’s
SIP.
Comment: At multiple places, West
Virginia notes that EPA did not
comment on certain issues when it
11 EPA interprets ‘‘overlapping source category’’
as a source category currently granted an SSM
exemption by state regulations which is also
regulated as a NESHAP source category.
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Federal Register / Vol. 88, No. 73 / Monday, April 17, 2023 / Rules and Regulations
submitted comments to the state during
the 2016 public comment period.
Response: EPA’s relevant comments,
dated July 28, 2016, addressed seven
submitted West Virginia proposed air
quality rules, including Rule 1. These
rules were submitted by WVDEP to EPA
on or about June 29, 2016. At that time,
EPA identified four issues, one being an
issue cited in this disapproval, that the
AEL limitations must be submitted for
EPA approval into West Virginia’s SIP
for SIP compliance purposes. EPA’s
failure to identify all of its concerns
with Rule 1 at that time is not a waiver
of its responsibility to do so now, and
EPA notes that it must also address
comments submitted by commenters in
response to EPA’s NPRM. Commenter
Sierra Club has identified many of the
same issues with Rule 1 as EPA, so even
if EPA had not raised these issues in the
NPRM, the issues would need to be
addressed.
III. Final Action
EPA is disapproving West Virginia’s
June 13, 2017 submittal as a revision to
the West Virginia SIP.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
EPA’s role is to review state choices,
and approve those choices if they meet
the minimum criteria of the Act.
Accordingly, this final action
disapproving West Virginia’s new rule
related to AELs as a SIP revision merely
ascertains that this State law does not
meets Federal requirements and
therefore does not impose additional
requirements beyond those imposed by
State law.
Additional information about these
statutes and Executive orders can be
found at www.epa.gov/laws-regulations/
laws-and-executive-orders.
lotter on DSK11XQN23PROD with RULES1
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 and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA, because this SIP disapproval does
not in-and-of itself create any new
information collection burdens, but
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15:49 Apr 14, 2023
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simply disapproves certain State
requirements for inclusion in the SIP.
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 will not
impose any requirements on small
entities. This SIP disapproval does not
in-and-of itself create any new
requirements but simply disapproves
certain pre-existing State requirements
for inclusion in the SIP.
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. This action does not
impose additional requirements beyond
those imposed by state law.
Accordingly, no additional costs to
state, local, or tribal governments, or to
the private sector, will result from this
action.
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: Coordination
With Indian Tribal Governments
This action does not have tribal
implications, as specified in Executive
Order 13175, because the SIP EPA is
disapproving would not apply on any
Indian reservation land or in any other
area where the EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction and will not impose
substantial direct costs on tribal
governments or preempt tribal law.
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 this SIP disapproval does not
in-and-of itself create any new
PO 00000
Frm 00038
Fmt 4700
Sfmt 4700
regulations, but simply disapproves
certain pre-existing State requirements
for inclusion in the SIP.
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 (NTTAA)
Section 12(d) of the NTTAA directs
the EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. The EPA believes that this
action is not subject to the requirements
of section 12(d) of the NTTAA because
application of those requirements would
be inconsistent with the CAA.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The air agency did not evaluate
environmental justice considerations as
part of its SIP submittal; the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this
action. Consideration of EJ is not
required as part of this action, and there
is no information in the record
inconsistent with the stated goal of E.O.
12898 of achieving environmental
E:\FR\FM\17APR1.SGM
17APR1
Federal Register / Vol. 88, No. 73 / Monday, April 17, 2023 / Rules and Regulations
justice for people of color, low-income
populations, and Indigenous peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
L. 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 June 16, 2023. Filing a
petition for reconsideration by the
Administrator of this final action 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 action. This action pertaining to
the disapproval of West Virginia’s June
13, 2017 submittal, 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.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023–07615 Filed 4–14–23; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL MARITIME COMMISSION
46 CFR Parts 501 and 502
[Docket No. FMC–2023–0011]
RIN 3072–AC97
Delegations to Bureau of Enforcement,
Investigations, and Compliance
Federal Maritime Commission
Final rule.
AGENCY:
ACTION:
The Federal Maritime
Commission (Commission) is delegating
authority to the Bureau of Enforcement,
Investigations, and Compliance (BEIC),
to issue Notice(s) of Violations and to
compromise civil penalty claims subject
to review by the Commission.
Delegation of authority to BEIC provides
enhanced efficiency flexibility during
lotter on DSK11XQN23PROD with RULES1
SUMMARY:
VerDate Sep<11>2014
15:49 Apr 14, 2023
Jkt 259001
the enforcement process while
maintaining Commission oversight.
DATES: The rule is effective without
further action on May 17, 2023.
FOR FURTHER INFORMATION CONTACT:
William Cody, Secretary; Phone: (202)
523–5725; Email: secretary@fmc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Commission’s Bureau of
Enforcement, Investigations, and
Compliance (BEIC) is responsible for
investigating potential violations of the
Shipping Act of 1984, as amended, and
associated Commission regulations, and
initiating enforcement actions. The
Commission is delegating authority to
BEIC to issue Notice(s) of Violations
(NOV) and to compromise civil penalty
claims subject to approval by the
Commission. Delegation of authority to
BEIC coupled with Commission review
of compromise agreements will provide
enhanced efficiency and flexibility
during the enforcement process while
maintaining Commission oversight.
II. Background
Pursuant to its authority under the
Shipping Act of 1984, as amended,
Commission regulations currently
provide for two types of enforcement
actions seeking civil penalties, formal
enforcement action under 46 CFR
502.63 and informal compromise
procedures under 46 CFR 502.604.
Currently, both require Commission
approval to proceed at multiple steps
during the process, thereby making the
enforcement process unnecessarily
burdensome and hindering the efficient
resolution of enforcement matters.
The current process for BEIC to
conduct an enforcement action requires:
(1) providing notice to the subjects of
investigations that BEIC intends to
recommend that the Commission
initiate enforcement proceedings and
allowing the subject an opportunity to
respond before BEIC submits those
recommendations and responses to the
Commission for approval; (2) receiving
Commission approval before formal or
informal enforcement action is
undertaken, including approval to enter
into compromise discussions; and (3)
receiving Commission approval of any
proposed compromise agreements. The
current process has proven procedurally
complicated since it involves multiple
levels and cycles of approval prior to
any case culminating in resolution. The
rigidity of the process combined with
the opportunity for respondents to
submit responses of up to 40 pages has
increased time and resource costs in
enforcement matters both for the
PO 00000
Frm 00039
Fmt 4700
Sfmt 4700
23361
Commission and for the entities it
regulates.
III. Regulatory Changes
As briefly described in Section II, the
Commission is streamlining the current
process by delegating authority to BEIC
to issue Notice(s) of Violations setting
forth alleged violations and to
compromise such claims, subject to
review by the Commission instead of
requiring Commission approval at each
step under the current approach.
Compromise agreements will be subject
to Commission review after the parties
have reached an agreement rather than
before negotiations begin and again at
the conclusion, thereby increasing the
efficiency of Commission enforcement
efforts by removing an added level of
approval at the outset of an informal
enforcement action.
The revised procedure will also give
BEIC delegated authority with respect to
the investigative and initial compromise
phases of the enforcement process.
Specifically, BEIC will have the
authority to (1) directly enter
discussions to compromise civil penalty
allegations prior to the issuance of an
NOV if a party requests to negotiate a
compromise, (2) issue NOVs providing
notice of alleged violations and the
corresponding civil penalty proposed by
BEIC, or (3) recommend that the
Commission institute a formal
adjudicatory proceeding. An NOV will
provide the opportunity for the subject
to either request to enter into
compromise discussions or to submit a
written response, if desired. The
Commission retains the authority to
review any proposed compromise
agreement reached by the parties
pursuant to § 501.11(f)(2); and
Commission approval continues to be
required to initiate a formal proceeding
pursuant to § 502.63(a). Accordingly,
BEIC has the flexibility to assess an
enforcement matter and to determine
the most appropriate process given the
facts of a particular matter.
A. Informal Enforcement Process
The Commission is revising the
informal enforcement process under
§ 502.63(d) to give BEIC discretion to
issue an NOV to expedite the
enforcement process. The current preenforcement notice (PEN) process
requires multiple levels of review and
approval for an enforcement case to
progress, starting with the issuance of a
PEN and culminating either in a
compromise agreement or a formal
proceeding. In either instance, BEIC’s
ability to compromise is subject to
approval by the Commission. Once a
PEN is issued, the respondent has 30
E:\FR\FM\17APR1.SGM
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]]>Agencies
[Federal Register Volume 88, Number 73 (Monday, April 17, 2023)]
[Rules and Regulations]
[Pages 23356-23361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07615]
[[Page 23356]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2022-0956; FRL-10885-02-R3]
Air Plan Disapproval; West Virginia; Revision to the West
Virginia State Implementation Plan To Add the Startup, Shutdown,
Maintenance Rule 45CSR1--Alternative Emission Limitations During
Startup, Shutdown, and Maintenance Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is disapproving 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, an
alternative emission limitation (AEL) for a source that requests an
AEL. This SIP revision was submitted subsequent 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 disapproving
this revision to the West Virginia SIP because it does not comply with
the requirements of the Clean Air Act (CAA). EPA will also be issuing a
finding of failure to submit (FFS) in a separate action, published
elsewhere in this issue of the Federal Register, to address West
Virginia's failure to correct the deficiencies identified in the June
12, 2015, SIP call.
DATES: This final action is effective on May 17, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2022-0956. All documents in the docket are listed on
the 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
www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
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
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,'' \1\ 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. 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.
---------------------------------------------------------------------------
\1\ 80 FR 33839, June 12, 2015.
---------------------------------------------------------------------------
On June 13, 2017, West Virginia submitted a SIP revision requesting
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. The new West Virginia regulation, found at 45 Code of
State Rules (CSR) 1, is referred to as ``Rule 1'' in West Virginia's
SIP submission, and will be referred to the same way here.
On December 22, 2022, EPA published a notice of proposed rulemaking
(NPRM) related to West Virginia's June 13, 2017 submittal.\2\ In that
document, EPA proposed disapproval of West Virginia's submittal for
multiple reasons. These reasons included: (1) the SIP revision did not
remove any of the existing West Virginia SSM exemptions identified as
substantially inadequate in the 2015 SSM SIP Action; (2) the new AEL
regulations did not specify that any AELs granted by the state would be
submitted to EPA as SIP revisions; (3) the AEL regulations allowed
sources to request AELs on a case-by-case basis, rather than adopting
AELs for a narrow category of sources with similar characteristics and
controls; (4) the AEL regulations did not allow for AELs for
malfunctions; and (5) sources subject to the new source performance
standard (NSPS) or national emission standard for hazardous air
pollutants (NESHAPS) with startup and shutdown provisions could not
obtain AELs and instead had to comply with the startup or shutdown
standards in the applicable NSPS and/or NESHAP. A more complete
explanation of the reasons for the proposed disapproval can be found in
the December 22, 2022 NPRM.
---------------------------------------------------------------------------
\2\ 87 FR 78617, December 22, 2022.
---------------------------------------------------------------------------
In response to the NPRM, West Virginia submitted comments claiming
that EPA failed to understand that the SIP revision allowing for AELs
was only a first step in responding to the 2015 SSM SIP Action, and
that therefore the AEL SIP revision should be judged solely on its own
approvability under the Clean Air Act. Given this new information,
which was not clearly stated in the documents included in the AEL SIP
revision package, EPA is now assessing this AEL SIP revision
independently of the state SIP provisions identified as the basis for
West Virginia's inclusion in the 2015 SSM SIP Action. That is, EPA has
reviewed the SIP submission solely on the basis of whether it meets the
requirements of the Clean Air Act, rather than assessing whether it
also addresses the deficiencies cited in the 2015 SSM SIP Action.
However, when reviewed solely on this basis, and as discussed in
response to West Virginia's comments below, the AEL SIP revision is not
approvable as a SIP revision under section 110 of the CAA. In addition,
based on West Virginia's clarification, EPA is also taking a separate
action, published elsewhere in this issue of the Federal Register,
making a FFS for West Virginia's failure to submit any SIP revision
addressing the 14 State regulatory provisions identified in the 2015
SSM SIP Action.
II. EPA's Response to Comments Received
EPA received two sets of comments on the December 22, 2022 NPRM.
The full text of the comments is in the
[[Page 23357]]
docket for this action. A summary of the comments and EPA's responses
are provided herein.
A. Summary of Comments From the Sierra Club and the Environmental
Integrity Project.
Comment: These commenters agree with EPA's proposed disapproval of
West Virginia's SSM SIP submittal, and offer three major reasons why
EPA should disapprove West Virginia's SIP submission: (1) West
Virginia's SIP call response did not remove the unlawful SSM SIP
provisions, (2) West Virginia's proposed AEL rule would unilaterally
amend its SIPs through permits without undergoing the SIP revision
process, and (3) West Virginia's proposed AEL rule does not comply with
the CAA and the SSM SIP call guidance on AELs. As a result, these
commenters urge EPA to propose a FIP to remove the unlawful SSM SIP
provisions.
Response: The first three points raised by this commenter are
similar to reasons EPA cited for proposing to disapprove West
Virginia's SIP revision. In response to the request that EPA promulgate
a FIP if West Virginia does not promptly submit a SIP revision
addressing this disapproval, EPA notes that the states are not required
to adopt and submit to EPA SIP revisions creating AELs for periods of
SSM. States may choose to remove SSM exemptions, director's discretion
provisions, and affirmative defense provisions and not provide
alternative limits for periods of SSM. Thus, following this
disapproval, West Virginia could choose to not create new AEL
regulations and submit those as a SIP revision, and instead rely upon
their enforcement discretion should a source exceed an emission limit
which is part of the EPA-approved SIP. In a separate action, published
elsewhere in this issue of the Federal Register, EPA is issuing an FFS
for West Virginia's failure to address the issues cited in the 2015 SSM
SIP Action, and that FFS will provide deadlines, in accordance with CAA
sections 110(c) and 179(a).
B. Summary of Comments From the West Virginia Department of
Environmental Protection (WVDEP).
WVDEP objects to the proposed disapproval for multiple reasons,
with the most important being that the SIP submittal was not intended
to be a full remedy to the 2015 SSM SIP call. West Virginia also claims
that EPA's lack of communication with West Virginia deprived the State
of an opportunity to remedy the issues cited in the disapproval prior
to the proposed disapproval. In addition, West Virginia also requests
that EPA not take final action on this SIP revision until a decision is
issued by the U.S. Court of Appeals for the D.C. Circuit in a lawsuit
challenging EPA's SIP call. West Virginia's concerns are set forth with
more specificity below.
Comment: West Virginia asks that EPA delay final action on this SIP
submission until the United States Court of Appeals for the D.C.
Circuit issues its ruling on the lawsuits seeking to challenge EPA's
issuance of the 2015 SSM SIP Action.\3\
---------------------------------------------------------------------------
\3\ Environ. Comm. Fl. Elec. Power v. EPA, et al, No. 15-1239
(D.C. Cir.) (and consolidated cases).
---------------------------------------------------------------------------
Response: EPA is under a court-ordered deadline to take final
action on West Virginia's AEL SIP submittal.\4\ Given this deadline,
EPA cannot wait to take final action on West Virginia's AEL SIP
submittal until the D.C. Circuit rules on the lawsuits challenging the
2015 SSM SIP Call. The judicial consent decree requires EPA to take
final action on the West Virginia AEL SIP submittal within 240 days of
the Court's entry of the final decree. Public notice and opportunity to
comment upon this consent decree was published on April 11, 2022. No
comments were received from West Virginia. The consent decree was
entered on June 27, 2022, and as such the 240-day deadline for taking
final action was February 22, 2023, but was extended to April 12, 2023
by court order.
---------------------------------------------------------------------------
\4\ Sierra Club, et. al., v. Michael S. Regan, Case No. 4:21-cv-
6956-SBA (N.D. Ca., Sept. 8, 2021).
---------------------------------------------------------------------------
Even if there were not a court-ordered deadline for EPA to take
action, it would not be appropriate or necessary to wait until the D.C.
Circuit rules on the lawsuits challenging the 2015 SSM SIP Call. EPA's
disapproval of West Virginia's AEL SIP submission is based on other CAA
legal deficiencies that are unrelated to the deficiencies and Agency
policies underlying the 2015 SSM SIP Call (for example, the fact that
West Virginia's submission would allow for changes to West Virginia's
SIP without appropriate procedures), and thus are irrelevant to the
D.C. Circuit's eventual decision.
Comment: West Virginia states that the only purpose of the 2017
West Virginia SIP revision was to add Rule 1 into the West Virginia
SIP, and that nothing in the 2017 SIP revision states that the revision
was intended to be a complete response to the 2015 SSM SIP Action. West
Virginia further states that it was considering revising or removing
requirements identified in the 2015 SSM SIP Action through subsequent
legislative rulemaking after sources had a SIP-approved mechanism to
obtain AELs, but that EPA's failure to take timely action on the 2017
SIP revision prevented West Virginia from doing so. Therefore, West
Virginia argues that this SIP revision should have been evaluated on
its own merits, and EPA's reliance on West Virginia's failure to remove
the provisions allowing exemptions from emission limits during SSM
events cited in the 2015 SSM SIP Call is irrelevant.
Response: EPA notes that West Virginia's 2017 SIP submission did
not specifically state that it was only a first step in addressing the
2015 SSM SIP Call. EPA reviewed the SIP submission and found that, in
response to a comment submitted by the Sierra Club, West Virginia
stated that ``Division of Air Quality (DAQ) intends to propose removal
of the provisions identified in the SSM SIP Call after 45 CSR1 is
effective.'' West Virginia's own comments do not cite to this statement
in its SIP submission. In the absence of a specific statement directed
to EPA in the SIP submittal noting that this was DAQ's plan, it is easy
to see how EPA misunderstood DAQ's intent.
In response to this clarification by West Virginia, EPA is no
longer identifying the AEL submission's failure to fully address the
SIP call as a basis for its disapproval. Instead, in a separate action
published elsewhere in the ``Rules'' section of this issue of the
Federal Register, EPA is issuing a FFS for West Virginia's failure to
submit SIP revisions addressing the other deficiencies identified in
the 2015 SSM SIP Action.\5\ The reasons for issuing a FFS will be
discussed in that separate action and therefore are not discussed here.
---------------------------------------------------------------------------
\5\ See Docket ID No. EPA-R03-OAR-2023-0179.
---------------------------------------------------------------------------
Regarding West Virginia's claim that it was hampered by a lack of
communication from EPA, the Region and Agency has publicly recognized
that there were changes to the Agency's SSM policy in 2020 and 2021 \6\
which could have caused confusion and delay in the submission of SIP
revisions. However, the policy changes occurred well after the November
2016 deadline for submitting SIP revisions set by the 2015 SSM SIP
Call, which is still in place, and was never lifted. Indeed, the 2020
Memorandum specifically noted that it ``[did] not alter in any way the
determinations made in the 2015 SSM SIP Action that identified specific
state
[[Page 23358]]
SIP provisions that were substantially inadequate to meet the
requirements of the Act.'' \7\
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\6\ October 9, 2020, Memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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.
\7\ October 9, 2020 Memorandum at 3.
---------------------------------------------------------------------------
Finally, based on EPA's new understanding of West Virginia's
intention in submitting the AEL SIP revision, EPA has analyzed the 2017
AEL SIP revision on its own merits, but nevertheless finds that the AEL
SIP revision is not approvable for two reasons that are independent of
the 2015 SSM SIP Action. First, as noted in the NPRM, the AEL SIP
revision cannot be approved because it does not specify that any AEL
granted by West Virginia must be submitted to EPA as a SIP revision for
approval. Instead, West Virginia's comments note that the submitted AEL
regulations require that any AEL granted by West Virginia must be
incorporated into a permit under West Virginia Rule 13, Rule 14, or
Rule 19, and that each of these permitting programs are approved by EPA
as part of the SIP. West Virginia cites to its original response to
EPA's 2016 comments when Rule 1 was proposed at the State level:
These permitting rules are all SIP approved and are an integral
part of the State air program designed to address compliance with
the NAAQS [National Ambient Air Quality Standard]. By virtue of
their SIP approval, it is immaterial whether an AEL is directly
approved into the SIP because it will be embodied in a permit under
a SIP approved program and is therefore fully federally enforceable.
West Virginia's comment does not address the most important element
of EPA's concern, which is that these regulations creating AELs do not
require that the AELs, when issued, be submitted to EPA for approval as
a SIP revision. While inclusion of the AEL limits in a permit issued
under an EPA-approved permitting program in the SIP does make the limit
federally enforceable, it does not provide a SIP mechanism for assuring
that SIP limits would not be changed without first going through the
CAA's SIP revision process. To the contrary, it creates a non-SIP
mechanism for amending the SIP by creating alternatives to it. It also
creates the potential for confusion because the associated AEL would
not be contained in the SIP with the SIP limits that it amends, and it
allows for the possibility of non-SIP AELs that conflict with the SIP
limits. Moreover, it does so without opportunity for EPA review or
disapproval where the AEL fails to meet CAA requirements. Any AEL which
revises a limit that is EPA-approved as part of the West Virginia SIP
must go through the process of being submitted as a SIP revision in
accordance with CAA section 110. EPA's SIP call makes clear that AELs
that modify SIP-approved emissions limitations, whether adopted on a
case-by-case basis or as an AEL generally applicable to a narrow
category of similar sources, must be presented to EPA for approval as a
SIP revision, and go through the SIP revision process. This is because
the AELs at issue here would be changes to a state emission regulation
adopted as part of the state's SIP to implement the CAA, and as such
must be approved as a SIP revision by EPA. States cannot unilaterally
make changes to SIP-approved emission limits without the requirements
of CAA section 110 being met, including a public comment process and
EPA approval.
EPA specifically addressed this concern in the 2015 SSM SIP Action,
at 80 FR 33918, June 12, 2015:
Pursuant to the EPA's own responsibilities under sections
110(k)(3), 110(l) and 193 . . ., it would be inappropriate for the
Agency to approve a SIP provision that automatically preauthorized
the state unilaterally to revise the SIP emission limitation without
meeting the applicable procedural and substantive statutory
requirements for a SIP revision.
The 2015 SSM SIP Action also stated--
It is a fundamental tenet of the CAA that states cannot
unilaterally change SIP provisions, including the emission
limitations within SIP provisions, without the EPA's approval of the
change through the appropriate process.
Thus, the fact that an AEL must be incorporated into a permit that is
part of the EPA-approved West Virginia SIP does not do away with this
requirement that the AEL be submitted as a SIP revision and go through
the SIP revision process.
The second reason for disapproving the AEL SIP submission which is
unrelated to the deficiencies in the 2015 SSM SIP Action is that the
AEL prohibits a source from obtaining an AEL if that source is subject
to a CAA section 111 Federal new source performance standard (NSPS)
and/or a national emission standard for hazardous air pollutants
(NESHAP) under section 112, and that NSPS or NESHAP has a startup or
shutdown provision. The regulation at 45CSR1-1.5.b specifically states
that persons subject to NSPS in 45CSR16 or to NESHAPS in 45CSR34
``shall meet the applicable startup and shutdown provisions of the
applicable Federal rule and are not eligible for an alternative
emission limit under this rule for affected sources.'' As EPA explained
in the 2015 SSM SIP Action and in the NPRM for this action, those NSPS
and NESHAPS adopted before 2008 but not yet updated may contain
problematic exemptions for startups and shutdowns that have not yet
been corrected to comply with the 2008 Sierra Club v. Johnson
decision.\8\ West Virginia's 45CSR1-1-5.b does not distinguish between
the updated standards and not-yet-updated standards. For those not-yet-
updated, the Agency cannot approve as a SIP revision a regulation that
allows these NSPS and/or NESHAP-related SSM provisions to continue to
exist in State-issued permits, nor can it approve a blanket provision
preventing the State from issuing or revising permits to address the
problematic provisions.\9\ In addition, West Virginia's blanket rule
requiring sources to follow applicable NSPS or NESHAP startup and
shutdown provisions assumes that emission limitation requirements in
recent NESHAP and NSPS are appropriate for all pollutants and sources
regulated by the SIP. That is, the NSPS or NESHAP may not be designed
to address the excess emission of NAAQS pollutants, which the SIPs seek
to control, and as such may not adequately address excess emission of
NAAQS pollutants during startup or shutdown. West Virginia's regulation
assumes, without support, that NSPS and/or NESHAP startup and shutdown
provisions are directed at controlling emissions of NAAQS pollutants,
which may not be the case. Thus, a source's compliance with an NSPS or
NESHAP startup or shutdown provision is not guaranteed to address
excessive emissions of NAAQS pollutants or precursors. Therefore, the
particular emissions limitation which any particular NSPS or NESHAP
adopts for a startup or shutdown 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.
---------------------------------------------------------------------------
\8\ 87 FR 78617, at 78620, December 22, 2022.
\9\ Id.
---------------------------------------------------------------------------
Comment: Rule 1 does not establish limits for sources. West
Virginia objects to EPA citing as one reason for the disapproval the
fact that the SIP submittal setting AEL requirements did not address
those provisions of West Virginia's regulations granting sources an
automatic or discretionary exemption during SSM events that were
specifically cited by EPA in the 2015 SSM SIP Action. West Virginia
notes that states are allowed some discretion in how they establish
programs to meet CAA requirements, and they chose to adopt the guidance
and codify the requirements for sources to establish AELs. West
Virginia also seems to
[[Page 23359]]
believe that EPA's comments ``suggest that West Virginia should have
conducted a detailed technical analysis for each distinct category of
sources . . .''.
Response: As noted above, in response to West Virginia's claim that
the AEL SIP revision was not intended to address all of the
deficiencies cited in the 2015 SSM SIP Action, EPA is evaluating the
AEL SIP submission solely as to whether it meets the requirements for
approvability under the CAA, without regard to whether it addresses all
the 2015 SSM SIP Action deficiencies. Thus, whether the AEL SIP
submission addresses all the SIP Action deficiencies is no longer
relevant to this action.
Regarding the claim that EPA's proposal suggests that West Virginia
should have conducted an analysis for each distinct category of
sources, EPA believes that West Virginia is misinterpreting the
discussion in the proposed disapproval at 87 FR 78620 (87 FR 78617,
December 22, 2022). That discussion points out that some NSPS and
NESHAP regulate pollutants other than criteria pollutants. Therefore,
controls, operational standards and other measures in those regulations
that are meant to address non-criteria pollutants may not work for
criteria pollutants. As such, reliance by a state on the NSPS or NESHAP
control requirements may not address the emission of pollutants
regulated by a state's SIP.
Comment: WVDEP did not and does not now consider it necessary to
require all sources to apply for an AEL, nor is it necessary for the
DEP to conduct a detailed analysis to review every permit for every
source to make that determination.
Response: EPA agrees that it may not be necessary for all sources
to apply for an AEL. However, the EPA statement quoted in West
Virginia's comments does not say or imply that every source must apply
for an AEL. As noted above, EPA also did not state that West Virginia
must conduct a detailed analysis of every permit for every source.
Comment: The WVDEP disagrees with the EPA's concern regarding the
first of the seven criteria set forth in the 2015 SSM SIP Action
because the criterion for narrowly defined source categories using
specific control strategies is embodied in the West Virginia case-by-
case approach codified in Rule 1. WVDEP argues that the EPA has been
unable to define alternatives for narrowly defined source categories in
the almost eight years since it finalized the 2015 SSM SIP Call and
objects to EPA's expectation that the states do the same in a much
shorter time frame and without EPA assistance.
Response: EPA agrees that West Virginia's case-by-case approach to
AELs embodies the idea of granting AELs narrowly to specific types of
sources using specific controls. However, EPA continues to believe that
the case-by-case approach could prove to be a resource-intensive
endeavor for WVDEP. As such, EPA reiterates that West Virginia could
meet the requirements of the 2015 SSM SIP Action by removing the cited
SSM exemptions from its SIP. There is no requirement that West Virginia
adopt an AEL regulation to address the SIP call. This approach would
avoid West Virginia having to undertake the potentially difficult task
of creating AELs. If West Virginia nevertheless decides to proceed with
a case-by-case AEL approach, the important point is that the regulation
allowing for AELs must make it clear that each AEL must be submitted as
a SIP revision to EPA for approval in accordance with section 110 of
the CAA. In addition, as EPA explained in the proposed disapproval,
West Virginia's case-by-case approach could lead to inconsistent
alternative limits for sources that, based on similar operating
characteristics, fuels, and other similar traits, should have similar
AELs, and makes it difficult to consider any cumulative impact of
source-specific emission limitations on West Virginia's air quality.
Moreover, consistent with the court decision in Sierra Club v. EPA, 551
F.3d 1019 (D.C. Cir. (2008)) and provisions set forth in CAA section
302(k), EPA is revising NESHAP and NSPS regulations, which generally
apply to defined source categories and require specific emission
controls or other standards, as they come up for statutorily required
review to eliminate SSM exemptions and ensure that standards apply at
all times.
Comment: The fact that malfunctions are not included in the scope
of 45CSR1 is not a reason for the SIP to be disapproved.
Response: EPA agrees. In the NPRM, EPA specifically points out that
states are not required to establish an AEL for malfunction.\10\
---------------------------------------------------------------------------
\10\ 87 FR 78620, December 22, 2022.
---------------------------------------------------------------------------
Comment: WVDEP does not agree that an AEL developed by the EPA
under the NESHAP program for an overlapping source category would not
be relevant for sources covered by Rule 1. The WVDEP is confused by the
EPA's argument that West Virginia should rely on a case-by-case
analysis regarding the use of alternative limits allowed under a
particular NSPS or NESHAP, which contradicts EPA's previous concern
regarding WVDEP use of case-by-case analysis under Rule 1.
Response: EPA has reviewed the NPRM and cannot identify an EPA
statement suggesting that an AEL developed by EPA under the NESHAP
program for an overlapping source category \11\ would not be relevant
for sources seeking an AEL under Rule 1. EPA believes that West
Virginia is conflating EPA's concern that existing SSM exemptions in
NESHAPS should not be relied upon with EPA's other expressed concern
that NESHAPS may not be focused on addressing criteria pollutants (or
criteria pollutant pre-cursors), so reliance on limits in such NESHAP
limits addressing periods of SSM for these other pollutants may not
control certain criteria pollutants, which are the focus of SIPs. The
discussion of these issues, at 87 FR 78620 of EPA's NPRM, was in the
context of 45CSR1-1-5.b, which states that sources subject to NSPS, as
incorporated into 45CSR16, and NESHAPS, as incorporated into 45CSR34,
shall follow any startup or shutdown provisions set forth in an
applicable NSPS and/or NESHAP and is not eligible for an AEL. EPA has
been clear that state reliance on NSPS or NESHAPs with ``legacy'' SSM
exemptions is not an acceptable alternative to the removal of the
specific SSM provisions cited in the 2015 SSM SIP Call. EPA is
separately working to remove these SSM exemptions, and if EPA develops
AELs for emissions of certain NAAQS pollutants when removing these SSM
provisions from NSPS and NESHAPS, those AELs may be relevant for
purposes of the state if it elects to set an AEL for the same NAAQS
pollutants when removing SSM provisions from its SIP. If EPA has not
yet removed such SSM exemption, the state may, in conjunction with
removing its SIP-based SSM exemption, elect to establish an AEL. If so,
it would need to perform a ``case-by-case'' analysis of the particular
source category at issue to determine what would constitute an
appropriate AEL. EPA also notes, again, that West Virginia could
resolve the CAA violations detailed in the 2015 SSM SIP Call without
implementing any AELs, but simply by removing the violating provisions
from the State's SIP.
---------------------------------------------------------------------------
\11\ EPA interprets ``overlapping source category'' as a source
category currently granted an SSM exemption by state regulations
which is also regulated as a NESHAP source category.
---------------------------------------------------------------------------
Comment: At multiple places, West Virginia notes that EPA did not
comment on certain issues when it
[[Page 23360]]
submitted comments to the state during the 2016 public comment period.
Response: EPA's relevant comments, dated July 28, 2016, addressed
seven submitted West Virginia proposed air quality rules, including
Rule 1. These rules were submitted by WVDEP to EPA on or about June 29,
2016. At that time, EPA identified four issues, one being an issue
cited in this disapproval, that the AEL limitations must be submitted
for EPA approval into West Virginia's SIP for SIP compliance purposes.
EPA's failure to identify all of its concerns with Rule 1 at that time
is not a waiver of its responsibility to do so now, and EPA notes that
it must also address comments submitted by commenters in response to
EPA's NPRM. Commenter Sierra Club has identified many of the same
issues with Rule 1 as EPA, so even if EPA had not raised these issues
in the NPRM, the issues would need to be addressed.
III. Final Action
EPA is disapproving West Virginia's June 13, 2017 submittal as a
revision to the West Virginia SIP.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this final action disapproving West Virginia's new rule
related to AELs as a SIP revision merely ascertains that this State law
does not meets Federal requirements and therefore does not impose
additional requirements beyond those imposed by State law.
Additional information about these statutes and Executive orders
can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.
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 and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA, because this SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves certain
State requirements for inclusion in the SIP.
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 will not impose any requirements on small entities. This SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain pre-existing State requirements for
inclusion in the SIP.
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. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.
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: Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP EPA is disapproving would not
apply on any Indian reservation land or in any other area where the EPA
or an Indian tribe has demonstrated that a tribe has jurisdiction and
will not impose substantial direct costs on tribal governments or
preempt tribal law. 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 this SIP disapproval does not in-and-of
itself create any new regulations, but simply disapproves certain pre-
existing State requirements for inclusion in the SIP.
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 (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
in this action. Consideration of EJ is not required as part of this
action, and there is no information in the record inconsistent with the
stated goal of E.O. 12898 of achieving environmental
[[Page 23361]]
justice for people of color, low-income populations, and Indigenous
peoples.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. 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 June 16, 2023. Filing a petition for
reconsideration by the Administrator of this final action 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 action.
This action pertaining to the disapproval of West Virginia's June 13,
2017 submittal, 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.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-07615 Filed 4-14-23; 8:45 am]
BILLING CODE 6560-50-P
