[Federal Register Volume 85, Number 52 (Tuesday, March 17, 2020)]
[Rules and Regulations]
[Pages 15071-15073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04856]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0103; FRL-10006-20-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Infrastructure Requirements for the 2015 Ozone Standard

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. Whenever new or revised national ambient air quality 
standards (NAAQS or standards) are promulgated, the Clean Air Act (CAA) 
requires states to make an initial SIP submission to provide for the 
implementation, maintenance, and enforcement of such NAAQS. This 
submission is required to address basic program elements, including, 
but not limited to, regulatory structure, monitoring, modeling, legal 
authority, and adequate resources necessary to assure attainment and 
maintenance of the standards. This type of SIP revision is commonly 
referred to as an ``infrastructure'' SIP and elements addressed in such 
a submission are referred to as infrastructure requirements. West 
Virginia made a submittal addressing most of the infrastructure 
requirements for the 2015 ozone NAAQS and later supplemented the 
submittal to address the interstate transport elements; EPA is not 
acting on the interstate transport elements at this time. EPA is 
approving these revisions in accordance with the requirements of the 
CAA.

DATES: This final rule is effective on April 16, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0103. All documents in the docket are listed on 
the https://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 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2021. Mr. Schulingkamp can also be reached via electronic mail at 
schulingkamp.joseph@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 18, 2019 (84 FR 69349), EPA published a notice of 
proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, 
EPA proposed approval of most portions of West Virginia's 
infrastructure SIP revision for the 2015 ozone NAAQS. The State 
submitted the infrastructure SIP on September 14, 2018 through the 
Department of Environmental Protection (WVDEP); this State later 
supplemented this submission on February 4, 2019 to address the 
interstate transport elements of CAA section 110(a)(2)(D)(i)(I). 
Additional background on West Virginia's submittal, infrastructure 
SIPs, and the ozone NAAQS can be found in the NPRM.

II. Summary of SIP Revision and EPA Analysis

    West Virginia's September 14, 2018 infrastructure SIP submittal 
addressed the following infrastructure elements, or portions thereof, 
for the 2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), D(i)(II), 
D(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The SIP submittal 
did not address the portion of element (C) which pertains to 
nonattainment new source review requirements, or element (I) which 
pertains to the nonattainment requirements of part D, title I of the 
CAA, because states are not required to address these elements by the 
3-year submission deadline of section 110(a)(1), and will be addressed 
in a separate process.
    EPA has analyzed the SIP submission and is making a determination 
that the submittal meets the requirements of the identified elements. A 
detailed summary of EPA's review and rationale for approving West 
Virginia's submittal may be found in the technical support

[[Page 15072]]

document (TSD) for the NPRM which is available online at 
www.regulations.gov, docket number EPA-R03-OAR-2019-0103. Other 
specific requirements and the rationale for EPA's proposed action are 
explained in the NPRM and will not be restated here.

III. Response to Comments

    EPA received three sets of anonymous comments in response to the 
NPRM. Two of the comments were difficult to interpret but did not 
appear to support EPA's proposed approval. EPA's best effort to 
interpret and respond to these two comments are also below.
    Comment 1: The first commenter disagreed with EPA's proposed action 
with regard to whether the State has adequate resources. The commenter 
stated that EPA must review financial records and determine whether the 
State has adequate funding and if the funding is capable of sustaining 
the number of employees on the State's staff.
    Response 1: EPA disagrees with the comment. The comment does not 
provide any specific facts or analysis to support the concern about 
insufficient resources. An audit of the State's financial records is 
not required in order for EPA to determine that a state has met the 
requirements of CAA section 110(a). The CAA section 110(a)(2)(E)(i) 
requires that the State provide to EPA ``necessary assurances'' that it 
will have adequate funding and personnel to implement the relevant 
NAAQS. In accordance with CAA section 110(a)(2)(E), which requires that 
the State provide necessary assurances that it has adequate resources 
and personnel, EPA has concluded that the State has provided the 
necessary assurances of adequate resources and personnel in accordance 
with CAA section 110(a)(2)(E), as explained in the TSD included in the 
docket for this rulemaking action.
    For example, West Virginia described in its submission that under 
State statutory authority it ``employs adequate personnel and retains 
specialists under W.Va. Code section 22-5-4(a)(8) that are `necessary, 
incident or convenient' to accomplish its statutory mandate to carry 
out'' the West Virginia SIP, and currently maintains a staff of 
approximately 80 full time employees. West Virginia does not anticipate 
any changes in necessary resources for the five years following this 
submission. West Virginia indicates that the State has regulatory legal 
authority to establish fees to cover permitting costs beyond those 
already covered by its federally approved Title V operating permit 
program under 45CSR22, and that it receives revenue from fines and 
enforcement settlements (Air Pollution Control Fund). West Virginia 
also receives federal funds under CAA section 103 (Research, 
investigation, training, and other activities) and section 105 (Grants 
for support of air pollution planning and control programs), 42 U.S.C. 
7403 and 7405. The State air pollution control programs also receive 
state general fund appropriations. Therefore, EPA has determined that 
West Virginia has provided necessary assurances that it has sufficient 
funding and personnel to meet the requirements of section 110(a)(2)(E) 
for the 2015 ozone NAAQS.
    Comment 2: The second comment stated that EPA should disapprove 
West Virginia's infrastructure SIP submission because ``the committee's 
position was supported by the oil and gas industry.'' The comment also 
suggested ``[t]he SIP could be suspended because of its non-
enforcement.'' The comment concluded by saying ``[t]he infrastructure 
SIP should be disapproved immediately to stop it being used to bully 
corporations and public officials and allow another bill to be passed 
without the new part of the bill being gutted!''
    Response 2: EPA disagrees with the comment. The commenter did not 
provide any information beyond its assertion in the comment as to why 
EPA should disapprove West Virginia's infrastructure SIP submission. 
The comment also failed to identify any part of the West Virginia SIP 
that the State is not enforcing. The Administrative Procedures Act does 
not require that EPA change its decision based on ``comments consisting 
of little more than assertions that in the opinions of the commenters 
the agency got it wrong,'' when submitted without supporting data. 
International Fabricare Institute v. E.P.A., 972 F.2d 384 (D.C. Cir. 
1992). EPA's review of the infrastructure SIP submission, as explained 
in the TSD for this rulemaking action, shows that West Virginia has 
provided the necessary assurances that the State has the unambiguous 
authority to enforce its SIP and the measures contained therein. It is 
also unclear what the commenter was referring to in regard to some 
party using the infrastructure SIP to ``bully corporations and public 
officials.'' An infrastructure SIP is simply a SIP submission to 
establish that the state's existing EPA approved SIP, or the existing 
SIP as revised in the infrastructure SIP submission, meets the 
applicable requirements to implement, maintain, and enforce a new or 
revised NAAQS. The infrastructure SIP is required to address basic 
program elements, including, but not limited to, regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the new or revised standard.
    Comment 3: The third comment suggested that EPA should disapprove 
West Virginia's infrastructure SIP submission in full, stating, 
``[m]uch of the infrastructure SIP could be used by the federal 
government for any purpose.'' The commenter also suggested that EPA has 
not been meeting legislative deadlines and that some members of 
Congress are not aware of the purpose of infrastructure SIP 
submissions.
    Response 3: EPA disagrees with the comment to the extent that it 
calls for disapproving West Virginia's infrastructure SIP, because the 
commenter did not provide any information or basis to support such a 
disapproval. Although the commenter alleges EPA missed legislative 
deadlines, the commenter did not identify which deadlines EPA missed or 
why those deadlines would be relevant to this rulemaking. The 
Administrative Procedures Act does not require that EPA change its 
decision based on ``comments consisting of little more than assertions 
that in the opinions of the commenters the agency got it wrong,'' when 
submitted without supporting data. International Fabricare Institute v. 
E.P.A., 972 F.2d 384 (D.C. Cir. 1992). Nothing in the comment calls 
into question EPA's evaluation of West Virginia's infrastructure SIP 
for the 2015 ozone NAAQS for each applicable requirement in CAA section 
110(a)(2), with the exception of section 110(a)(2)(D)(i)(I) which EPA 
is not acting on at this time, and concludes the State has met the 
applicable requirements.

IV. Final Action

    EPA is approving West Virginia's September 14, 2018 infrastructure 
submittal as a revision to the West Virginia SIP. EPA is approving the 
West Virginia's September 14, 2018 SIP revision as meeting the 
requirements of section 110(a)(2) of the CAA to implement, maintain, 
and enforce the 2015 ozone NAAQS, including specifically section 
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), 
(K), (L), and (M) for this NAAQS. This final rulemaking action does not 
include action on section 110(a)(2)(I) or portions of section 
110(a)(2)(C) referring to the permit program under part D, title I of 
the CAA. This rulemaking action also does not address section 
110(a)(2)(D)(i)(I) which pertains to the interstate transport of 
emissions

[[Page 15073]]

addressed by West Virginia's February 4, 2019 supplemental SIP 
revision; EPA will act on West Virginia's supplemental SIP revision in 
a later separate action.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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 CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. 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 May 18, 2020. 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, pertaining to West Virginia's infrastructure 
requirements for the 2015 ozone NAAQS, 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, Volatile organic compounds.

    Dated: February 24, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
    40 CFR part 52 is amended 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, amend the table in paragraph table (e) by adding 
an entry for ``Section 110(a)(2) Infrastructure Requirements for the 
2015 ozone NAAQS'' at the end of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

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  Name of non-regulatory SIP    Applicable geographic  State submittal                           Additional
           revision                      area                date       EPA approval date       explanation
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                                                  * * * * * * *
Section 110(a)(2)               Statewide............         9/14/18   3/17/20, Federal   Docket #2019-0103.
 Infrastructure Requirements                                             Register.          This action
 for the 2015 ozone NAAQS.                                                                  addresses the
                                                                                            following CAA
                                                                                            elements of section
                                                                                            110(a)(2): A, B, C,
                                                                                            D(i)(II), D(ii), E,
                                                                                            F, G, H, J, K, L,
                                                                                            and M.
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[FR Doc. 2020-04856 Filed 3-16-20; 8:45 am]
 BILLING CODE 6560-50-P


