83 FR 55360 - Delegation of Authority to the State of West Virginia To Implement and Enforce Additional or Revised National Emission Standards for Hazardous Air Pollutants Standards and New Source Performance Standards

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 214 (November 5, 2018)

On September 11, 2017 and September 21, 2018, the Environmental Protection Agency (EPA) sent the State of West Virginia (West Virginia) letters acknowledging that West Virginia's delegation of authority to implement and enforce the National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) had been updated, as provided for under previously approved delegation mechanisms. To inform regulated facilities and the public, EPA is making available a copy of EPA's letters to West Virginia through this notice.

[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Notices]
[Pages 55360-55362]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-24160]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9986-04-Region 3]


Delegation of Authority to the State of West Virginia To 
Implement and Enforce Additional or Revised National Emission Standards 
for Hazardous Air Pollutants Standards and New Source Performance 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of delegation of authority.

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SUMMARY: On September 11, 2017 and September 21, 2018, the 
Environmental Protection Agency (EPA) sent the State of West Virginia 
(West Virginia) letters acknowledging that West Virginia's delegation 
of authority to implement and enforce the National Emissions Standards 
for Hazardous Air Pollutants (NESHAP) and New Source Performance 
Standards (NSPS) had been updated, as provided for under previously 
approved delegation mechanisms. To inform regulated facilities and the 
public, EPA is making

[[Page 55361]]

available a copy of EPA's letters to West Virginia through this notice.

DATES: On September 11, 2017 and September 21, 2018, EPA sent West 
Virginia letters acknowledging that West Virginia's delegation of 
authority to implement and enforce Federal NESHAPs and NSPS had been 
updated.

ADDRESSES: Copies of documents pertaining to this action are available 
for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of West 
Virginia's submittal are also available at the West Virginia Department 
of Environmental Protection, Division of Air Quality, 601 57th Street 
SE, Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Emily Bertram, (215) 814-5273, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On June 6, 2017, West Virginia notified EPA 
that West Virginia had updated its incorporation by reference of 
Federal NESHAP and NSPS to include many such standards as found in 
Title 40 of the Code of Federal Regulations (CFR), Parts 60, 61, and 63 
as of June 1, 2016. On September 11, 2017, EPA sent West Virginia a 
letter acknowledging that West Virginia now has the authority to 
implement and enforce the NESHAP and NSPS as specified by West Virginia 
in its notice to EPA, as provided for under previously approved 
automatic delegation mechanisms. All notifications, applications, 
reports, and other correspondence required pursuant to the delegated 
NESHAP and NSPS must be submitted to both EPA Region III and to the 
West Virginia Department of Environmental Protection, unless the 
delegated standard specifically provides that such submittals may be 
sent to EPA or a delegated State. In such cases, the submittals should 
be sent only to the West Virginia Department of Environmental 
Protection. A copy of EPA's September 11, 2017 letter to West Virginia 
follows:

Mr. William F. Durham, Director
Division of Air Quality
West Virginia Department of Environmental Protection
601 57th Street
Charleston, West Virginia 25304

Dear Mr. Durham:

    The United States Environmental Protection Agency (EPA) has 
previously delegated to the State of West Virginia the authority to 
implement and enforce various federal National Emissions Standards 
for Hazardous Air Pollutants (NESHAP) and New Source Performance 
Standards (NSPS), which are found at 40 CFR parts 60, 61, and 63. In 
those actions EPA also delegated to West Virginia the authority to 
implement and enforce any future EPA NESHAP or NSPS on the condition 
that West Virginia legally adopt the future standards, make only 
allowed wording changes, and provide specified notice to EPA.
    In a letter dated June 6, 2017, West Virginia informed EPA that 
West Virginia had updated its incorporation by reference of federal 
NESHAP and NSPS to include many such standards as found in 40 CFR 
parts 60, 61, and 63 as of June 1, 2016. West Virginia noted that it 
understood it was automatically delegated the authority to implement 
these standards. West Virginia committed to enforcing the standards 
in conformance with the terms of EPA's previous delegations of 
authority. West Virginia made only allowed wording changes.
    West Virginia provided copies of the revised West Virginia 
Legislative Rules which specify the NESHAP and NSPS which West 
Virginia has adopted by reference. These revised Legislative Rules 
are entitled 45 CSR 34--``Emission Standards for Hazardous Air 
Pollutants,'' and 45 CSR 16--``Standards of Performance for New 
Stationary Sources.'' These revised Rules have an effective date of 
June 1, 2017.
    Accordingly, EPA acknowledges that West Virginia now has the 
authority, as provided for under the terms of EPA's previous 
delegation actions, to implement and enforce the NESHAP and NSPS 
standards which West Virginia adopted by reference in West 
Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, both 
effective on June 1, 2017.
    Please note that on December 19, 2008 in Sierra Club vs. EPA,\1\ 
the United States Court of Appeals for the District of Columbia 
Circuit vacated certain provisions of the General Provisions of 40 
CFR part 63 relating to exemptions for startup, shutdown, and 
malfunction (SSM). On October 16, 2009, the Court issued the mandate 
vacating these SSM exemption provisions, which are found at 40 CFR 
part 63, Sec.  63.6(f)(1), and (h)(1).
---------------------------------------------------------------------------

    \1\ Sierra Club v. EPA, 551 F.3rd 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Accordingly, EPA no longer allows sources to use the SSM 
exemption as provided for in the vacated provisions at 40 CFR part 
63, Sec.  63.6(f)(1), and (h)(1), even though EPA has not yet 
formally removed the SSM exemption provisions from the General 
Provisions of 40 CFR part 63. Because West Virginia incorporated 40 
CFR part 63 by reference, West Virginia should also no longer allow 
sources to use the former SSM exemption from the General Provisions 
of 40 CFR part 63 due to the Court's ruling in Sierra Club vs. EPA.

    EPA appreciates West Virginia's continuing NESHAP and NSPS 
enforcement efforts, and also West Virginia's decision to take 
automatic delegation of additional and more recent NESHAP and NSPS 
by adopting them by reference.
    If you have any questions, please contact me or Mr. Marcos 
Aquino, Acting Associate Director, Office of Permits and State 
Programs, at 215-814-3422.
Sincerely,

Cristina Fernandez, Director Air Protection Division

    On June 5, 2018, West Virginia notified EPA that West Virginia had 
updated its incorporation by reference of Federal NESHAP and NSPS to 
include many such standards as found in Title 40 of the Code of Federal 
Regulations (CFR), Parts 60, 61, and 63 as of June 1, 2017. On 
September 21, 2018, EPA sent West Virginia a letter acknowledging that 
West Virginia now has the authority to implement and enforce the NESHAP 
and NSPS as specified by West Virginia in its notice to EPA, as 
provided for under previously approved automatic delegation mechanisms. 
All notifications, applications, reports, and other correspondence 
required pursuant to the delegated NESHAP and NSPS must be submitted to 
both EPA Region III and to the West Virginia Department of 
Environmental Protection, unless the delegated standard specifically 
provides that such submittals may be sent to EPA or a delegated State. 
In such cases, the submittals should be sent only to the West Virginia 
Department of Environmental Protection. A copy of EPA's September 21, 
2018 letter to West Virginia follows:

Mr. William F. Durham, Director
Division of Air Quality
West Virginia Department of Environmental Protection
601 57th Street, SE
Charleston, West Virginia 25304

Dear Mr. Durham:

    The United States Environmental Protection Agency (EPA) has 
previously delegated to the State of West Virginia the authority to 
implement and enforce various federal National Emissions Standards 
for Hazardous Air Pollutants (NESHAP) and New Source Performance 
Standards (NSPS), which are found at 40 CFR parts 60, 61, and 63. In 
those actions EPA also delegated to West Virginia the authority to 
implement and enforce any future EPA NESHAP or NSPS on the condition 
that West Virginia legally adopt the future standards, make only 
allowed wording changes, and provide specified notice to EPA.
    In a letter dated June 5, 2018, West Virginia informed EPA that 
West Virginia had updated its incorporation by reference of federal 
NESHAP and NSPS to include many such standards as found in 40 CFR 
parts 60, 61, and 63 as of June 1, 2017. West Virginia noted that it 
understood it was automatically delegated the authority to implement 
these standards. West Virginia committed to enforcing the standards 
in conformance with the terms of EPA's previous delegations of 
authority. West Virginia made only allowed wording changes.
    West Virginia provided copies of the revised West Virginia 
Legislative Rules which specify the NESHAP and NSPS which West 
Virginia has adopted by reference.

[[Page 55362]]

These revised Legislative Rules are entitled 45 CSR 34--``Emission 
Standards for Hazardous Air Pollutants,'' and 45 CSR 16--``Standards 
of Performance for New Stationary Sources.'' These revised Rules 
have an effective date of June 1, 2018.
    Accordingly, EPA acknowledges that West Virginia now has the 
authority, as provided for under the terms of EPA's previous 
delegation actions, to implement and enforce the NESHAP and NSPS 
standards which West Virginia adopted by reference in West 
Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, both 
effective on June 1, 2018.
    Please note that on December 19, 2008 in Sierra Club vs. EPA,\2\ 
the United States Court of Appeals for the District of Columbia 
Circuit vacated certain provisions of the General Provisions of 40 
CFR part 63 relating to exemptions for startup, shutdown, and 
malfunction (SSM). On October 16, 2009, the Court issued the mandate 
vacating these SSM exemption provisions, which are found at 40 CFR 
part 63, Sec.  63.6(f)(1), and (h)(1).
---------------------------------------------------------------------------

    \2\ Sierra Club v. EPA, 551 F.3rd 1019 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Accordingly, EPA no longer allows sources to use the SSM 
exemption as provided for in the vacated provisions at 40 CFR part 
63, Sec.  63.6(f)(1), and (h)(1), even though EPA has not yet 
formally removed the SSM exemption provisions from the General 
Provisions of 40 CFR part 63. Because West Virginia incorporated 40 
CFR part 63 by reference, West Virginia should also no longer allow 
sources to use the former SSM exemption from the General Provisions 
of 40 CFR Part 63 due to the Court's ruling in Sierra Club vs. EPA.
    EPA appreciates West Virginia's continuing NESHAP and NSPS 
enforcement efforts, and also West Virginia's decision to take 
automatic delegation of additional and more recent NESHAP and NSPS 
by adopting them by reference.
    If you have any questions, please contact me or Ms. Zelma 
Maldonado, Acting Associate Director, Office of Permits and State 
Programs, at 215-814-3448.
Sincerely,

Cristina Fernandez, Director Air Protection Division

    This notice acknowledges the update of West Virginia's delegation 
of authority to implement and enforce NESHAP and NSPS.

    Dated: October 23, 2018.
Cristina Fernandez,
Director, Air Protection Division, Region III.
[FR Doc. 2018-24160 Filed 11-2-18; 8:45 am]
 BILLING CODE 6560-50-P