Rule2025-19238
Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revisions to Regulation for Control of Ozone Season Nitrogen Oxide Emissions
Primary source
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Published
October 2, 2025
Effective
November 3, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of West Virginia. The revision pertains to West Virginia 45 Code of State Rules (CSR) 40 (WV rule) that establishes the nitrogen oxides (NO<INF>X</INF>) ozone season limitations and requirements for non- electrical generating unit (EGU) large industrial boilers and combustion turbines that have a maximum design heat input of greater than 250 million British thermal units per hour (MMBtu/hr), as well as affected stationary internal combustion engines and cement manufacturing kilns. This action is being taken under the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 90 Issue 189 (Thursday, October 2, 2025)</title>
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[Federal Register Volume 90, Number 189 (Thursday, October 2, 2025)]
[Rules and Regulations]
[Pages 47604-47607]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19238]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2024-0513; FRL-12075-02-R3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Revisions to Regulation for Control of Ozone Season
Nitrogen Oxide Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the State of West
Virginia. The revision pertains to West Virginia 45 Code of State Rules
(CSR) 40 (WV rule) that establishes the nitrogen oxides
(NO<INF>X</INF>) ozone season limitations and requirements for non-
electrical generating unit (EGU) large industrial boilers and
combustion turbines that have a maximum design heat input of greater
than 250 million British thermal units per hour (MMBtu/hr), as well as
affected stationary internal combustion engines and cement
manufacturing kilns. This action is being taken under the Clean Air Act
(CAA).
DATES: This final rule is effective on November 3, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R03-OAR-2024-0513. All documents in the docket are
listed on the 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
<a href="http://www.regulations.gov">www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Bryan Cashman, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, Four
[[Page 47605]]
Penn Center, 1600 John F. Kennedy Boulevard, Philadelphia, Pennsylvania
19103. The telephone number is (215) 814-2012. Mr. Cashman can also be
reached via electronic mail at <a href="/cdn-cgi/l/email-protection#da99bba9b2b7bbb4f498a8a3bbb49abfaabbf4bdb5ac"><span class="__cf_email__" data-cfemail="85c6e4f6ede8e4ebabc7f7fce4ebc5e0f5e4abe2eaf3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On April 17, 2024, the State of West
Virginia, through the West Virginia Department of Environmental
Protection (WVDEP), submitted a revised version of West Virginia
Legislative Rule 45CSR40-Control of Ozone Season Nitrogen Oxides
Emissions (WV rule) for inclusion in the West Virginia SIP. This
included two state revisions dated June 1, 2020 and April 1, 2023. The
submission was supplemented on October 8, 2024, with additional
information related to public noticing of the June 1, 2020 revision.
The revisions to the WV rule included: (1) updating the
characterization of units not subject to the rule because they are
subject to a Federal NO<INF>X</INF> ozone season trading program, and
(2) amending monitoring requirements consistent with the Federal rule,
``Emissions Monitoring Provisions in State Implementation Plans
Required Under the NO<INF>X</INF> SIP Call'' (84 FR 8422, March 8,
2019).
I. Background
On June 11, 2025 (90 FR 24549), the EPA published a notice of
proposed rulemaking (NPRM) for the state of West Virginia. In the NPRM,
the EPA proposed approval of West Virginia's April 17, 2024 SIP
revision pertaining to 45CSR40--Control of Ozone Season Nitrogen Oxides
Emissions. For additional background information on the EPA rulemakings
and court decisions relevant to this SIP revision, beginning with the
EPA's October 27, 1998 (63 FR 57356), ``Finding of Significant
Contribution and Rulemaking for Certain States in the Ozone Transport
Assessment Group Region for Purposes of Reducing Regional Transport of
Ozone'' (NO<INF>X</INF> SIP Call), please refer to the June 2025 NPRM.
II. Summary of SIP revisions and EPA analysis
For the applicable units, as described in subsection 4, West
Virginia rule 45CSR40 establishes: (a) ozone season NO<INF>X</INF>
emissions limitations, monitoring, recordkeeping, reporting, excess
emissions, and NO<INF>X</INF> budget demonstration requirements for
non-EGU large industrial boilers and combustion turbines that have a
maximum design heat input greater than 250 MMBtu/hr, in accordance with
40 CFR 51.121; (b) ozone season NO<INF>X</INF> reduction, compliance
plan, monitoring, recordkeeping and reporting requirements for affected
stationary internal combustion engines; and (c) ozone season
NO<INF>X</INF> control standards, ozone season NO<INF>X</INF> for
cement kilns.\1\
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\1\ 45 CSR 40-1.1.
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As explained in the NPRM, WV rule 45CSR40, approved most recently
into the West Virginia SIP on January 3, 2019, was adopted to implement
the ozone season trading program under the Cross State Air Pollution
Rule (CSAPR), and to address NO<INF>X</INF> SIP Call requirements
including the requirements that apply to stationary internal combustion
engines and cement manufacturing kilns. WV rule 45CSR40 was revised
effective June 1, 2020,\2\ and further revised effective April 1, 2023,
to conform the applicability section to changes in the Federal ozone
season ``trading programs,'' and monitoring, reporting and
recordkeeping requirements set forth in the 2019 NO<INF>X</INF> SIP
Call Rule amendments (84 FR 8422, March 8, 2019). Notably, West
Virginia did not previously submit the June 1, 2020 revisions for
approval into the SIP.
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\2\ WV rule 45CSR40 was revised effective June 1, 2020 to update
references to CSAPR trading programs in effect at that time and
incorporate alternate monitoring, reporting and recordkeeping
requirements consistent with the amended 2019 NO<INF>X</INF> SIP
Call Rule regulations (84 FR 8422, March 8, 2019) for units that are
not subject to a Federal trading program. The ``Applicability''
section of the WV rule was further revised effective April 1, 2023
to replace specific outdated references to the CSAPR Group 2 trading
program with language referring to ``Federal trading program'' to
facilitate compliance with future changes to Federal trading
programs that may include non-EGUs and large stationary sources.
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The April 17, 2024 West Virginia SIP submittal is comprised of
revised WV rule 45CSR40 (both the June 2020 and April 2023 amendments)
and the NO<INF>X</INF> SIP Call non-EGU Budget Demonstration, a non-
regulatory supplement that is required under Section 8 of WV rule
45CSR40. Specific references to CSAPR ozone season trading program
provisions were replaced with language updating the characterization of
units not subject to the rule because they are subject to a Federal
NO<INF>X</INF> ozone season trading program. Definitions,
applicability, and other provisions responding to the NO<INF>X</INF>
SIP Call including monitoring and reporting under 40 CFR part 75, were
retained. New requirements were added to the WV rule for monitoring,
reporting, and recordkeeping consistent with the 2019 NO<INF>X</INF>
SIP Call Rule amendments (84 FR 8422, March 8, 2019) and 40 CFR part 60
\3\ for units that are not part of a Federal trading program. The ozone
season NO<INF>X</INF> emission budget of 2,184 tons and the limits that
applied to non-EGU sources, stationary internal combustion engines, and
cement kilns were retained and recodified. For detailed descriptions of
the revisions please see the June 2025 NPRM (90 FR 24549).
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\3\ 40 CFR part 60 Standards of Performance for New Stationary
Sources are pollution control standards, adherence to which
maintains the air quality in an area or region by reducing or
eliminating pollutants release. Included in 40 CFR part 60 are
various subparts that define methods by which facilities or
operations can achieve compliance with emission guidelines or
standards of performance.
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The April 17, 2024 West Virginia SIP Non-EGU Budget Demonstration
submission shows that total ozone season NO<INF>X</INF> emissions from
non-EGUs that are subject to the NO<INF>X</INF> SIP Call do not exceed
the West Virginia ozone season budget of 2,184 tons for non-EGUs. The
ozone season NO<INF>X</INF> budget for non-EGUs was established in the
West Virginia SIP in 2002 in response to the NO<INF>X</INF> SIP Call.
As detailed and explained further in the June 2025 NPRM, the maximum
potential ozone season NO<INF>X</INF> emissions of 1,202 tons based on
permit and consent order limits is less than the total West Virginia
NO<INF>X</INF> non-EGU budget and leaves 982 tons available for new
units which may at a later date become subject to NO<INF>X</INF> SIP
Call requirements.
Whenever a new unit that meets the applicability of section 4.1 of
WV rule 45CSR40 (and thus is also subject to the NO<INF>X</INF> SIP
Call) commences operation, or an existing unit becomes newly
applicable, West Virginia is required under subsection 8.3 of WV rule
45CSR40 to submit a revised demonstration to the EPA that shows
continuing compliance with the state-wide ozone season NO<INF>X</INF>
emissions cap of 2,184 tons for applicable units. The EPA finds that
West Virginia's revised provisions in WV rule 45CSR40 meet the
requirements for the NO<INF>X</INF> SIP Call, the CAA (including
section 110) and 40 CFR 51.121.
The changes West Virginia has made to rule 45CSR40 are approvable
under CAA section 110 because: (1) the applicability provisions at
section 4.1 cover all existing and new NO<INF>X</INF> SIP Call non-EGUs
that are not subject to a seasonal NO<INF>X</INF> trading program
established under 40 CFR part 97; (2) the enforceable cap on the
collective ozone season NO<INF>X</INF> emissions from covered non-EGUs
does not exceed the limit set forth in Section 8.1 of the WV rule and
previously approved as part of the 2016 SIP responding to the
NO<INF>X</INF> SIP Call and identified in 40 CFR part 97, subpart E,
appendix C; (3) monitoring, recordkeeping and reporting in accordance
with 40 CFR part 75, 40 CFR
[[Page 47606]]
part 60, and West Virginia rule 45CSR16 are required for the non-EGUs;
(4) the cement kiln and internal combustion engine provisions
previously applicable to such sources in the 2016 West Virginia SIP
have not been substantively changed and are simply recodified; and (5)
the revised WV rule 45CSR40 generally addresses the requirements for
large non-EGUs for the SIP Call pursuant to 40 CFR 51.121 and is
consistent with all applicable CAA requirements. As explained in the
June 2025 NPRM, the SIP revision is consistent with the provisions of
CAA section 110(l). The EPA does not expect any emission increases, or
interference with attainment or maintenance of the NAAQS, reasonable
further progress, or any other CAA requirements.
Additional information regarding West Virginia's submittal and the
rationale for the EPA's action are explained in the NPRM and will not
be restated here. No public comments were received on the NPRM.
III. Final Action
The EPA is approving the April 17, 2024 West Virginia SIP revision,
as supplemented on October 8, 2024. This revision pertains to the
amended version of WV rule 45CSR40 that addresses CAA requirements in
section 110 and 40 CFR 51.121 for the NO<INF>X</INF> SIP Call and for
units subject to the NO<INF>X</INF> SIP Call.
IV. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with the
requirements of 1 CFR 51.5, the EPA is incorporating by reference the
revisions to West Virginia Rule 45CSR40-Control of Ozone Season
Nitrogen Oxides Emissions as described in section II of this preamble.
The EPA has made, and will continue to make, these materials generally
available through <a href="http://Regulations.gov">Regulations.gov</a> and at the EPA Region III office
(please contact the person identified in the For Further Information
Contact section of this preamble for more information).
V. Statutory and Executive Order Reviews
A. General Requirements
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air 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 approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866:
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act.
In addition, the SIP is not approved to 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. In those areas of
Indian country, the rule does not have Tribal implications and will not
impose substantial direct costs on Tribal governments or preempt Tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
This action is subject to the Congressional Review Act, 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).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 1, 2025. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Recording and
recordkeeping requirements, Sulfur oxides.
Amy Van Blarcom-Lackey,
Regional Administrator, Region III.
For the reasons stated in the preamble, the EPA amends 40 CFR part
52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
0
2. In Sec. 52.2520, the table in paragraph (c) is amended by revising
the entries ``Section 45-40-1'', ``Section 45-40-2'', ``Section 45-40-
3'', ``Section 45-40-4'', ``Section 45-40-6'' and ``Section 45-40-9''
to read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
[[Page 47607]]
EPA--Approved Regulations in the West Virginia SIP
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State Additional
State citation [Chapter 16-20 Title/subject effective EPA approval date explanation/citation
or 45 CSR] date at 40 CFR 52.2565
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[45 CSR] Series 40 Control of Ozone Season Nitrogen Oxides Emissions
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Section 45-40-1............... General.............. 04/01/2023 10/2/2025, 90 FR Revising 1.5. Prior
[INSERT. approval of this
FEDERAL REGISTER PAGE section was 83 FR
WHERE THE DOCUMENT 62470 on 12/04/18.
BEGINS].
Section 45-40-2............... Definitions.......... 04/01/2023 10/2/2025, 90 FR Revising 2.15, 2.17,
[INSERT. 2.6. Adding new
FEDERAL REGISTER PAGE 2.16, 2.19, 2.20,
WHERE THE DOCUMENT 2.21 and renumbered.
BEGINS]. Prior approval of
this section was 83
FR 62470 on 12/04/
18.
Section 45-40-3............... Measurements, 04/01/2023 10/2/2025, 90 FR Section 3 was
Abbreviations and [INSERT. renumbered and
Acronyms. FEDERAL REGISTER PAGE acronyms were added.
WHERE THE DOCUMENT Prior approval of
BEGINS]. this section was 83
FR 62470 on 12/04/
18.
Section 45-40-4............... Applicability........ 04/01/2023 10/2/2025, 90 FR Revised 4.1. Prior
[INSERT. approval of this
FEDERAL REGISTER PAGE section was 83 FR
WHERE THE DOCUMENT 62470 on 12/04/18.
BEGINS].
* * * * * * *
Section 45-40-6............... Monitoring, 04/01/2023 10/2/2025, 90 FR Revised 6.1, 6.2,
Recordkeeping and [INSERT. 6.3, 6.4, 6.5. Prior
Reporting FEDERAL REGISTER PAGE approval of this
Requirements. WHERE THE DOCUMENT section was 83 FR
BEGINS]. 62470 on 12/04/18.
* * * * * * *
Section 45-40-9............... Ozone season NOX 04/01/2023 10/2/2025, 90 FR Revised 9.2.1. Prior
reduction [INSERT. approval of this
requirements for FEDERAL REGISTER PAGE section was 83 FR
stationary internal WHERE THE DOCUMENT 62470 on 12/04/18.
combustion engines. BEGINS].
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[FR Doc. 2025-19238 Filed 10-1-25; 8:45 am]
BILLING CODE 6560-50-P
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