Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revisions to Regulation for Control of Ozone Season Nitrogen Oxide Emissions

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R03-OAR-2024-0513; FRL-12075-01-R3]</DEPDOC> <SUBJECT>Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revisions to Regulation for Control of Ozone Season Nitrogen Oxide Emissions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is proposing to approve 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 <E T="52">X</E> ) 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). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments must be received on or before July 11, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R03-OAR-2024-0513 at <E T="03">www.regulations.gov,</E> or via email to <E T="03">gordon.mike@epa.gov.</E> For comments submitted at <E T="03">Regulations.gov,</E> follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov.</E> For either manner of submission, the 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. The EPA will generally not consider comments or comment contents located outside of the primary submission ( <E T="03">i.e.,</E> on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the <E T="02">For Further Information Contact</E> section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit <E T="03">https://www.epa.gov/dockets/commenting-epa-dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Michael Gordon, 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) 814-2039. Mr. Gordon can also be reached via electronic mail at <E T="03">gordon.mike@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 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 <E T="52">X</E> 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 <E T="52">X</E> SIP Call” (84 FR 8422, March 8, 2019). <HD SOURCE="HD1">I. Background</HD> On October 27, 1998 (63 FR 57356), the EPA finalized the “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 <E T="52">X</E> SIP Call). The NO <E T="52">X</E> SIP Call was designed to mitigate significant transport of NO <E T="52">X</E> , one of the precursors of ozone. The EPA developed the NO <E T="52">X</E> Budget Trading Program, an allowance trading program that states could adopt to meet their obligations under the NO <E T="52">X</E> SIP Call. The NO <E T="52">X</E> Budget Trading Program allowed EGUs greater than 25 megawatts and industrial non-electrical generating units, such as boilers and turbines, with a rated heat input greater than 250 MMBtu/hr, referred to as “large non-EGUs”, to participate in a regional NO <E T="52">X</E> cap and trade program. The NO <E T="52">X</E> SIP call also established NO <E T="52">X</E> reduction requirements for other non-EGUs, including cement kilns and stationary internal combustion engines. The EPA has implementing regulations for the NO <E T="52">X</E> SIP Call at 40 CFR 51.121. On May 12, 2005 (70 FR 25162), the EPA promulgated the Clean Air Interstate Rule (CAIR) to address transported emissions that significantly contributed to downwind states' nonattainment and maintenance of the 1997 ozone and fine particulate matter (PM <E T="52">2.5</E> ) national ambient air quality standards (NAAQS). CAIR required 28 states, including West Virginia, to reduce emissions of NO <E T="52">X</E> and sulfur dioxide (SO <E T="52">2</E> ), which are precursors to ozone and PM <E T="52">2.5</E> . Under CAIR, the EPA established separate cap and trade programs for annual ozone season and annual emissions. <SU>1</SU> <FTREF/> On April 28, 2006 (71 FR 25328), the EPA also promulgated Federal Implementation Plans (FIP) requiring the EGUs in each affected state, but not large non-EGUs, to participate in the CAIR trading programs. States could comply with the requirements of CAIR by either remaining on the FIP, which applied only to EGUs, or by submitting a CAIR SIP revision that included as trading sources EGUs and the non-EGUs that formerly traded in the NO <E T="52">X</E> Budget Trading Program under the NO <E T="52">X</E> SIP Call. The EPA discontinued administration of the NO <E T="52">X</E> Budget Trading Program in 2009 upon the start of the CAIR trading programs. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  CAIR developed three separate cap and trade programs that could be used to achieve the required reductions: the CAIR NO <E T="52">X</E> ozone season trading program, the CAIR annual NO <E T="52">X</E> trading program, and the CAIR annual SO <E T="52">2</E> trading program. The CAIR NO <E T="52">X</E> ozone season and annual programs began in 2009, while the CAIR SO <E T="52">2</E> annual program began in 2010. </FTNT> <FTNT> <SU>2</SU>  CAIR was subsequently vacated and remanded. See <E T="03">North Carolina</E> v. <E T="03">EPA</E> , 531 F.3d 896 (District of Columbia Circuit 2008), modified by 550 F.3d 1176 (remanding CAIR). CAIR was replaced with the Cross-State Air Pollution Rule, or CSAPR (76 FR 48208, August 8, 2011), which, after legal challenges, was implemented starting in January 2015. The NO <E T="52">X</E> Ozone Season Trading Program under CSAPR was replaced in West Virginia and most other states by a new trading program for ozone season NO <E T="52">X</E> under the CSAPR Update rule in January 2017 (81 FR 74504, October 26, 2016). </FTNT> The NO <E T="52">X</E> SIP Call requirements continued to apply, however, and EGUs that were formerly trading under the NO <E T="52">X</E> Budget Trading Program continued to meet their NO <E T="52">X</E> SIP Call requirements under the generally more stringent requirements of the CAIR ozone season trading program. Large non-EGUs that were trading under the NO <E T="52">X</E> Budget Trading Program were not addressed in the CAIR FIPs. States therefore needed to assess their NO <E T="52">X</E> SIP Call requirements and take other regulatory action as necessary to ensure that their obligations for the large non-EGUs continued to be met. Under CAIR, states had the option to include the non-EGUs as trading participants in the regional CAIR ozone season trading program either through a full CAIR SIP or through an abbreviated CAIR SIP. In either of these options, expansion of the applicability to include the non-EGUs and increasing the ozone season NO <E T="52">X</E> budget by the amount of the non-EGU budget in appendix C of subpart E to 40 CFR part 97, effected inclusion of the non-EGUs into the trading program. Otherwise, states needed to assess their NO <E T="52">X</E> SIP Call requirements and take other regulatory action as necessary to ensure that their obligations for these units continued to be met. West Virginia chose to include the non-EGUs as CAIR trading sources, and submitted, for inclusion in the SIP WV rule 45CSR40 which consisted of provisions that implemented the CAIR NO <E T="52">X</E> ozone season trading program, included the large non-EGUs as trading sources, and also included emission reduction requirements for certain non-trading non-EGUs (cement kilns and internal combustion engines) that were subject to the NO <E T="52">X</E> SIP Call. The EPA approved WV rule 45CSR40 into the West Virginia SIP on August 4, 2009 (74 FR 38536). The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008, <SU>3</SU> <FTREF/> but ultimately remanded the rule to the EPA without vacatur to preserve the environmental benefits provided by CAIR. <SU>4</SU> <FTREF/> The ruling allowed CAIR to re ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 39k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━