[Federal Register Volume 86, Number 34 (Tuesday, February 23, 2021)]
[Rules and Regulations]
[Pages 10827-10831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02623]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0194; FRL-10017-11-Region 3]


Air Plan Approval; West Virginia; 1997 8-Hour Ozone National 
Ambient Air Quality Standard Second Maintenance Plan for the West 
Virginia Portion for the Charleston, West Virginia Area Comprising 
Kanawha and Putnam Counties

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 West Virginia 
Department of Environmental Protection (WVDEP) of the State of West 
Virginia. This revision pertains to West Virginia's plan for 
maintaining the 1997 8-hour ozone national ambient air quality standard 
(NAAQS) for the Charleston Area (comprising Kanawha and Putnam 
Counties). The EPA is approving these revisions to the West Virginia 
SIP in accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on March 25, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0194. 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: Keila M. Pag[aacute]n-Incle, 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-
2926. Ms. Pag[aacute]n-Incle can also be reached via electronic mail at 
pagan-incle.keila@epa.gov.

SUPPLEMENTARY INFORMATION: 

[[Page 10828]]

I. Background

    On June 29, 2020 (85 FR 38816), EPA published a notice of proposed 
rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA 
proposed approval of West Virginia's plan for maintaining the 1997 8-
hour ozone NAAQS through August 10, 2026, in accordance with CAA 
section 175A. The formal SIP revision was submitted by WVDEP on 
December 10, 2019.

II. Summary of SIP Revision and EPA Analysis

    On July 11, 2006 (71 FR 39001, effective August 10, 2006), EPA 
approved a redesignation request (and maintenance plan) from WVDEP for 
the Charleston Area. Per CAA section 175A(b), at the end of the eighth 
year after the effective date of the redesignation, the state must also 
submit a second maintenance plan to ensure ongoing maintenance of the 
standard for an additional 10 years, and in South Coast Air Quality 
Management District v. EPA,\1\ the D.C. Circuit held that this 
requirement cannot be waived for areas, like the Charleston Area, that 
had been redesignated to attainment for the 1997 8-hour ozone NAAQS 
prior to revocation and that were designated attainment for the 2008 
ozone NAAQS. CAA section 175A sets forth the criteria for adequate 
maintenance plans. In addition, EPA has published longstanding guidance 
that provides further insight on the content of an approvable 
maintenance plan, explaining that a maintenance plan should address 
five elements: (1) An attainment emissions inventory; (2) a maintenance 
demonstration; (3) a commitment for continued air quality monitoring; 
(4) a process for verification of continued attainment; and (5) a 
contingency plan.\2\ WVDEP's December 10, 2019 SIP submittal fulfills 
West Virginia's obligation to submit a second maintenance plan and 
addresses each of the five necessary elements.
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    \1\ 882 F.3d 1138 (DC Cir. 2018).
    \2\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
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    As discussed in the June 29, 2020, NPRM, consistent with 
longstanding EPA's guidance,\3\ areas that meet certain criteria may be 
eligible to submit a limited maintenance plan (LMP) to satisfy one of 
the requirements of CAA section 175A. Specifically, states may meet CAA 
section 175A's requirements to ``provide for maintenance'' by 
demonstrating that an area's design values \4\ are well below the NAAQS 
and that it has had historical stability attaining the NAAQS. EPA 
evaluated WVDEP's December 10, 2019 submittal for consistency with all 
applicable EPA guidance and CAA requirements. EPA found that the 
submittal met CAA Section 175A and all CAA requirements, and proposed 
approval of the LMP for the Charleston Area (comprising Kanawha and 
Putnam Counties) as a revision to the West Virginia SIP. The effect of 
this action makes certain commitments related to the maintenance of the 
1997 8-hour ozone NAAQS federally enforceable as part of the West 
Virginia SIP.
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    \3\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \4\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
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    Other specific requirements of WVDEP's December 10, 2019 submittal 
and the rationale for EPA's proposed action are explained in the NPRM 
and will not be restated here.

III. EPA's Response to Comments Received

    EPA received three comments on the June 29, 2020 NPRM. All comments 
received are in the docket for this rulemaking action. A summary of the 
comments and EPA's responses is provided herein.
    Comment 1: The commenter asserts that the LMP should not be 
approved because of EPA's reliance on the Air Quality Modeling 
Technical Support Document (TSD) that was developed for EPA's regional 
transport rulemaking. The commenter contends that: (1) The TSD shows 
maintenance of the area for three years and not 10 years; (2) the 
modeling was performed for transport purposes across state lines and 
not to show maintenance of the NAAQS; (3) the modeling was performed 
for the 2008 and 2015 ozone NAAQS and not the 1997 ozone NAAQS; (4) the 
TSD has been ``highly contested'' by environmental groups and that 
``other states contend EPA's modeling as flawed;'' and (5) the TSD does 
not address a recent court decision that threw out EPA's modeling 
``because it modeled to the wrong attainment year. . . .'' The 
commenter asserts that the four specific issues it raises with respect 
to the modeling means that the TSD is ``flawed, illegal, [and] is being 
used improperly for the wrong purpose. . . .'' The commenter states 
that ``EPA must retract its reliance on the modeling for the purposes 
of this maintenance plan and must find some other way of showing 
continued maintenance of the 1997 ozone NAAQS.''
    Response 1: EPA does not agree with the commenter that the approval 
of West Virginia's second maintenance plan is not appropriate. The 
commenter raises concerns about West Virginia and EPA's citation of air 
quality modeling, but the commenter ignores that EPA's primary basis 
for finding that West Virginia has provided for maintenance of the 1997 
8-hour ozone NAAQS in the Charleston Area is the State's demonstration 
that the criteria for a limited maintenance plan has been met. See 85 
FR 38816, June 29, 2020. Specifically, as stated in the NPRM, for 
decades EPA has interpreted the provision in CAA section 175A that 
requires states to ``provide for maintenance'' of the NAAQS to be 
satisfied where areas demonstrate that design values are and have been 
stable and well below the NAAQS--e.g., at 85% of the standard, or in 
this case at or below 0.071 ppm. EPA calls such demonstration a 
``limited maintenance plan.''
    The modeling cited by the commenter was referenced in West 
Virginia's submission and as part of EPA's proposed approval as 
supplementary supporting information, and we do not agree that the 
commenter's concerns about relying on that modeling are warranted. The 
commenter contends that the modeling only goes out three years (to 
2023) and it needs to go out to 10 years, and therefore may not be 
relied upon. However, the air quality modeling was only relied upon by 
EPA to provide additional support to indicate that the area is expected 
to continue to attain the NAAQS during the relevant period. As noted 
above, West Virginia primarily met the requirement to demonstrate 
maintenance of the NAAQS by showing that they met the criteria for a 
limited maintenance plan, rather than by modeling or projecting 
emissions inventories out to a future year. We also do not agree that 
the State is required to demonstrate maintenance for 10 years; CAA 
section 175A requires the State to demonstrate maintenance through the 
20th year after the area is redesignated, which in this case is 2026.
    We also disagree with the commenter's contention that because the 
air quality modeling was performed to analyze the transport of 
pollution

[[Page 10829]]

across state lines with respect to other ozone NAAQS, it cannot be 
relied upon in this action. We acknowledge that the air quality 
modeling at issue was performed as part of EPA's efforts to address 
interstate transport pollution under CAA section 110(a)(2)(D)(i)(I). 
However, the purpose of the air quality modeling is fully in keeping 
with the question of whether West Virginia is expected to maintain the 
NAAQS. The air quality modeling identifies which air quality monitors 
in the United States are projected to have problems attaining or 
maintaining the 2008 and 2015 NAAQS for ozone in 2023. Because the air 
quality modeling results simply provide projected ozone concentration 
design values, which are expressed as three-year averages of the annual 
fourth high 8-hour daily maximum ozone concentrations, the modeling 
results are useful for analyzing attainment and maintenance of any of 
the ozone NAAQS that are measured using this averaging time; in this 
case, the 1997, 2008 and 2015 ozone NAAQS. The only difference between 
the three standards is stringency. Taking the Charleston Area's most 
recent certified design value as of the proposal (i.e., for the years 
2016-2018), the area's design value was 0.067 parts per million (ppm). 
What we can discern from this is that the area is meeting the 1997 
ozone NAAQS of 0.080 ppm, the 2008 ozone NAAQS of 0.075 ppm, and the 
2015 ozone NAAQS of 0.070 ppm. The same principle applies to projected 
design values from the air quality modeling. In this case, the 
interstate transport modeling indicated that in 2023, the Charleston 
Area's design value is projected to be 0.060 ppm, which is again, well 
below all three standards. The fact that the air quality modeling was 
performed to indicate whether the area will have problems attaining or 
maintaining the 2015 ozone NAAQS (i.e., 0.070 ppm) does not make the 
modeling less useful for determining whether the area will also meet 
the less stringent revoked 1997 standard (i.e., 0.080 ppm).
    The commenter asserts that many groups have criticized EPA's 
transport modeling, alleging that the agency used improper emissions 
inventories, incorrect contribution thresholds, wrong modeling years, 
or that EPA has not accounted for local situations or reductions that 
occurred after the inventories were established. The commenter also 
alleges that EPA should not rely on its modeling because it ``fails to 
stand up to the recent court decisions,'' citing the Wisconsin v. EPA 
D.C. Circuit decision.\5\ EPA disagrees that the existence of 
criticisms of the agency's air quality modeling render it unreliable, 
and we also do not agree that anything in recent court decisions, 
including Wisconsin v. EPA, suggests that EPA's air quality modeling is 
technically flawed. We acknowledge that the source apportionment air 
quality modeling runs cited by the commenter have been at issue in 
various legal challenges to EPA actions, including the Wisconsin v. EPA 
case. However, in that case, the only flaw in EPA's air quality 
modeling identified by the D.C. Circuit was the fact that its analytic 
year did not align with the attainment date found in CAA section 
181.\6\ Contrary to the commenter's suggestion, the D.C. Circuit upheld 
EPA's air quality modeling with respect to the many technical 
challenges raised by petitioners in the Wisconsin case.\7\ We therefore 
think reliance on the interstate transport air quality modeling as 
supplemental support for showing that the Charleston Area will maintain 
the 1997 8-hour ozone NAAQS through the end of its 20th-year 
maintenance period is appropriate.
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    \5\ Wisconsin, 938 F.3d 303 (D.C. Cir. 2019).
    \6\ Wisconsin, 938 F.3d at 313.
    \7\ Wisconsin, 938 F.3d at 323-331.
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    Comment 2: The commenter asserts that EPA should disapprove this 
maintenance plan because EPA should not allow states to rely on 
emission programs such as the Cross-State Air Pollution rule (CSAPR) to 
demonstrate maintenance for the 1997 ozone NAAQS. The commenter alleges 
that ``the CSAPR and CSAPR Update and CSAPR Close-out rules were 
vacated entirely'' by multiple courts and ``are now illegal programs 
providing no legally enforceable emission reductions to any states 
formerly covered by the rules.'' The commenter also asserts that 
nothing restricts ``big coal and gas power plants from emitting way 
beyond there (sic) restricted amounts.'' The commenter does allow that 
``If EPA can show that continued maintenance without these rules is 
possible for the next 10 years then that would be OK but as the plan 
stands it relies on these reductions and must be disapproved.''
    Response 2: The commenter has misapprehended the factual 
circumstances regarding these interstate transport rules. Every rule 
cited by the commenter that achieves emission reductions from electric 
generating units (EGUs or power plants)--i.e., the Cross-State Air 
Pollution Rule and the CSAPR Update--remains in place and continues to 
ensure emission reductions of nitrogen oxides (NOX) and 
sulfur dioxide (SO2). CSAPR began implementation in 2015 
(after it was largely upheld by the Supreme Court) and the CSAPR Update 
began implementation in 2017. The latter rule was remanded to EPA to 
address the analytic year issues discussed in the prior comment and 
response, but the rule remains fully in effect. The commenter is 
correct that the D.C. Circuit vacated the CSAPR close-out, but we note 
that that rule was only a determination that no further emission 
reductions were required to address interstate transport obligations 
for the 2008 ozone NAAQS; the rule did not itself establish any 
emission reductions. We therefore disagree that the legal status of 
these rules presents any obstacle to EPA's approval of West Virginia's 
submission.
    Comment 3: EPA also received a third comment, which included some 
contradictory statements, and much of which is beyond the scope of this 
action. However, we summarize a few germane points raised by the 
commenter and respond to them herein. The commenter states that EPA 
must disapprove the maintenance plan for the Charleston Area because 
``this plan does not adequately limit or prevent the harmful effects of 
ozone formation.'' The commenter also suggests that approving the 
maintenance plan would allow for more ozone pollution. The commenter 
raises concerns about the scope of EPA's authority, alleging that EPA's 
authority is not unlimited, that EPA must take into account health 
effects from harmful ozone, and that EPA is perhaps not using an 
``acceptable methodology'' or the ``best available science.''
    Response 3: The NAAQS are standards required by the CAA to be 
established by EPA. The CAA identifies two types of NAAQS, primary and 
secondary. Primary NAAQS are air quality standards that ``based on such 
criteria and allowing an adequate margin of safety, are requisite to 
protect the public health,'' and secondary NAAQS specify a level of air 
quality that ``is requisite to protect the public welfare from any 
known or anticipated adverse effects associated with the presence of 
such air pollutant in the ambient air.'' CAA 109(b)(1) and (2). In lay 
terms, primary NAAQS ``provide public health protection, including 
protecting the health of `sensitive' populations such as asthmatics, 
children, and the elderly,'' and secondary NAAQS ``provide public 
welfare protection, including protection against decreased visibility 
and damage to animals, crops, vegetation, and

[[Page 10830]]

buildings.'' \8\ As stated in the NPRM, on July 18, 1997 (62 FR 38856), 
EPA revised both the primary and secondary NAAQS for ozone to set the 
acceptable level of ozone in the ambient air at 0.08 ppm, averaged over 
an 8-hour period. EPA set the primary 8-hour ozone NAAQS based on 
scientific evidence demonstrating that ozone causes adverse health 
effects at lower concentrations and over longer periods of time than 
was understood when the pre-existing 1-hour ozone NAAQS was set. Thus, 
the primary 1997 8-hour ozone NAAQS sets a threshold that at the time, 
EPA believed to be protective of public health allowing for an adequate 
margin of safety.\9\ The Charleston Area is meeting every ozone NAAQS, 
and EPA's approval of West Virginia's plan to continue to maintain the 
1997 8-hour ozone NAAQS (as it has since it was redesignated to 
attainment in 2006) is based on EPA's judgment that the emission 
limitations in West Virginia's SIP and other federally enforceable 
measures have been effective at ensuring that the Charleston Area will 
continue to attain the NAAQS. EPA does not agree that it has exceeded 
its statutory authority. We also believe that we articulated our 
methodology for evaluating West Virginia's submission in the proposal, 
and that we have followed that methodology here in the final action.
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    \8\ https://www.epa.gov/criteria-air-pollutants/naaqs-table.
    \9\ The Primary ozone NAAQS has been revised twice since 1997, 
most recently on October 26, 2015. 80 FR 65292.
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IV. Final Action

    EPA is approving the 1997 8-hour ozone NAAQS limited maintenance 
plan for the Charleston Area (comprising Kanawha and Putnam Counties) 
as a revision to the West Virginia SIP.

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 it is not a significant regulatory 
action 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 April 26, 2021. 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 limited maintenance 
plan for the Charleston Area (comprising Kanawha and Putnam Counties) 
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 3, 2021.
Diana Esher,
Acting 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 (e) is amended by adding an 
entry for ``1997 8-Hour Ozone National Ambient Air Quality Standard 
Second Maintenance Plan for the West Virginia Portion of the 
Charleston, West Virginia Area Comprising Kanawha and Putnam Counties'' 
at the end of the table to read as follows:


Sec.  52.2520   Identification of plan.

* * * * *
    (e) * * *

[[Page 10831]]



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                                                            State
    Name of non-regulatory SIP          Applicable        submittal      EPA approval date        Additional
             revision                 geographic area        date                                 explanation
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                                                  * * * * * * *
1997 8-Hour Ozone National         Charleston, West       12/10/2019  2/23/2021, [insert      ..................
 Ambient Air Quality Standard       Virginia Area                      Federal Register
 Second Maintenance Plan for the    Comprising Kanawha                 citation].
 West Virginia Portion of the       and Putnam Counties.
 Charleston, West Virginia Area
 Comprising Kanawha and Putnam
 Counties.
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[FR Doc. 2021-02623 Filed 2-22-21; 8:45 am]
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