Proposed Rule2022-27713
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
Primary source
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Published
December 22, 2022
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 245 (Thursday, December 22, 2022)</title>
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[Federal Register Volume 87, Number 245 (Thursday, December 22, 2022)]
[Proposed Rules]
[Pages 78617-78621]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#89cee6fbede6e7a7c4e0e2ecc9ecf9e8a7eee6ff"><span class="__cf_email__" data-cfemail="c087afb2a4afaeee8da9aba580a5b0a1eea7afb6">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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 <a href="http://www.epa.gov/dockets/commenting-epa-dockets">www.epa.gov/dockets/commenting-epa-dockets</a>.
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
<a href="/cdn-cgi/l/email-protection#dc92b5bfb4b3b0aff28fb9aeb9b2bd9cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="d19fb8b2b9bebda2ff82b4a3b4bfb091b4a1b0ffb6bea7">[email protected]</span></a>.
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
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 22, 2022.
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