[Federal Register Volume 85, Number 197 (Friday, October 9, 2020)]
[Rules and Regulations]
[Pages 64044-64046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20810]



[[Page 64044]]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0197; FRL-10014-80-Region 3]


Air Plan Approval; West Virginia; 1997 8-Hour Ozone Standard 
Second Maintenance Plan for the West Virginia Portion of the 
Parkersburg-Marietta, WV-OH Area Comprising Wood County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

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 
standards (NAAQS) through June 7, 2027 for the West Virginia portion of 
the Parkersburg-Marietta, WV-OH Area comprising Wood County. 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 November 9, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0197. 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:

I. Background

    On July 6, 2020 (85 FR 40160), 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 June 7, 2027, 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 May 8, 2007 (72 FR 25967, effective June 7, 2007), EPA approved 
a redesignation request (and maintenance plan) from WVDEP for the 
Parkersburg-Marietta Area. Section 175A(b) of the CAA requires that 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 
Parkersburg, that had been redesignated to maintenance 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 adequately addresses each of the five necessary 
elements.
---------------------------------------------------------------------------

    \1\ 882 F.3d 1138 (D.C. 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).
---------------------------------------------------------------------------

    As discussed in the July 6, 2020 NPRM, consistent with longstanding 
EPA guidance,\3\ areas that meet certain criteria may be eligible to 
submit a limited maintenance plan (LMP) to meet the requirements of CAA 
section 175A. Specifically, states may meet CAA section 175A's 
requirement 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 Parkersburg-Marietta, WV-OH Area comprising Wood County 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 July 6, 2020 NPRM, only two of 
which related to air quality issues. All comments received are in the 
docket for this rulemaking action. A summary of the two comments and 
EPA's responses are provided herein.
    Comment 1: The commenter alleges that the plan should not be 
approved due to ``a well-documented history of excessive emissions, 
including particulates,'' in Parker County. The commenter asserts that 
the concentration of PM10 \5\ in Parker County is one of the 
highest in the nation and that ``if there were pollution control 
measures in place for Parker County, Parker County would be able to 
meet its air quality standards.'' In addition, the commenter raises a 
number of issues related to road improvement plans, including a request 
for EPA's position on the ``Parker County Road Improvement Plan.''
---------------------------------------------------------------------------

    \5\ PM10 is defined as particulate matter with an 
aerodynamic diameter less than or equal to a nominal 10 micrometers.
---------------------------------------------------------------------------

    Response 1: As stated in the NPRM, the state's submission addresses 
the Parkersburg-Marietta Area's

[[Page 64045]]

maintenance of the 1997 8-hour ozone NAAQS. Therefore, the commenter's 
concerns about particulate matter pollution and emissions are beyond 
the scope of this action. Particulate matter is regulated under a 
separate NAAQS.\6\ Emissions of particulate matter and concentrations 
of PM10 particulates are not relevant to whether the 
Parkersburg-Marietta Area continues to attain and has a plan for 
maintaining the 1997 8-hour ozone NAAQS for an additional 10 years. 
Similarly, road projects in an unspecified Parker County Road 
Improvement Plan are not relevant to whether the LMP for the 1997 8-
hour ozone NAAQS is approvable. EPA set forth in the NPRM the criteria 
relevant to approvability of the LMP. EPA has determined that the 
December 10, 2019 SIP revision includes adequate information to support 
West Virginia's LMP. As set forth in the NPRM, EPA has determined that 
the State provided sufficient assurances in the LMP for EPA to approve 
West Virginia's 1997 8-hour ozone second maintenance plan for the 
Parkersburg-Marietta Area. EPA's evaluation of the West Virginia's 
December 10, 2019 SIP revision and the rationale for taking rulemaking 
action on this submission was discussed in detail in the NPRM. EPA 
continues to believe that it has considered the correct criteria and 
that the LMP meets the criteria for approvability. Concerns about 
particulate matter and road projects raised by the commenter are not 
relevant with respect to EPA's decision to approve the LMP.
---------------------------------------------------------------------------

    \6\ See 40 CFR 50.6 and 50.7
---------------------------------------------------------------------------

    Comment 2: The commenter claims that EPA must disapprove West 
Virginia's LMP because ``the proposed rule will not ensure that the 
communities in this area will be well served in terms of its electrical 
needs and its water needs,'' and ``will not address the potential 
problems with drinking water supplies nor the environmental damage from 
increased air pollution this plan allows.'' The commenter alleges that 
EPA ``will not allow'' the LMP go into effect without evaluating the 
impact it could have on the state and communities, because Federal 
agencies are required under the National Environmental Policy Act 
(NEPA) to assess impacts from proposed Federal actions on the 
environment, health and safety. Further the commenter contends that the 
LMP proposal includes an increase of ``the amount of gas extraction 
that would require pumping water deep underground,'' which will 
potentially harm the drinking water supplies in communities, including 
Parkersburg.
    Response 2: The commenter raised several issues with respect to 
EPA's proposed approval of West Virginia's second 10-year maintenance 
plan for the Parkersburg-Marietta Area for the 1997 8-hour ozone NAAQS, 
but EPA disagrees that any of them provide a basis for disapproving the 
state's submission. The commenter first raises concern about the plan's 
``failure to ensure that the community will be well served in terms of 
its electrical needs and its water needs.'' However, these issues are 
beyond the scope of EPA's action, which address only CAA requirements 
for the Parkersburg-Marietta Area with respect to the 1997 8-hour ozone 
NAAQS. Second, the commenter's allegation that the EPA is required 
under NEPA to assess the impacts of its maintenance plan approval is 
incorrect; section 7(c) of the Energy Supply and Environmental 
Coordination Act of 1974 (15 U.S.C. 793(c)(1)) exempts all EPA actions 
under the CAA from the requirements of NEPA, and this action is an 
approval of a SIP under the CAA. Third, the commenter's allegation that 
``the plan proposes to increase the amount of gas extraction that would 
require pumping water deep underground'' and her concern that the 
``plan also lacks mitigation measures . . . related to the increased 
use of water and gas to extract shale gas in the area'' appears to be 
referring to a different action. The SIP submission at issue in this 
action does not affect in any way gas extraction in West Virginia, much 
less propose to increase the amount of extraction, and therefore it 
appropriately does not address mitigation measures related to that 
subject. Finally, EPA does not agree with the commenter's allegation 
that the plan allows for increased air pollution. The state's 
submission maintains the same controls and contingency measures that 
were adopted into the SIP to attain and maintain the 1997 8-hour ozone 
NAAQS and any potential future violations of that standard.
    As noted in the NPRM, CAA section 175A requires only that the State 
of West Virginia make adequate demonstration that the Parkersburg-
Marietta Area will continue to maintain the 1997 8-hour ozone NAAQS 
until 2027 (20 years after redesignation). EPA has considered the 
appropriate statutory criteria and believes the record supports 
approval of the LMP. Concerns regarding electricity supply and water 
supply raised by the commenter are not relevant with respect to EPA's 
decision to approve the LMP.

IV. Final Action

    EPA is approving the 1997 8-hour ozone NAAQS second 10-year 
maintenance plan for the Parkersburg-Marietta, WV-OH Area comprising 
Wood County 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

[[Page 64046]]

     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 December 8, 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 limited maintenance 
plan for the Parkersburg-Marietta, WV-OH Area comprising Wood County 
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: September 15, 2020.
Cosmo Servidio,
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 
the entry ``1997 8-Hour Ozone Standard Second Maintenance Plan for the 
West Virginia Portion of the Parkersburg-Marietta WV-OH Area Comprising 
Wood County'' at the end of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                          State
   Name of non-regulatory SIP        Applicable         submittal       EPA  approval    Additional  explanation
            revision               geographic area        date              date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1997 8-Hour Ozone Standard       Parkersburg-            12/10/2019  10/9/2020, [insert  .......................
 Second Maintenance Plan for      Marietta WV-OH                      Federal Register
 the West Virginia Portion of     Area Comprising                     citation].
 the Parkersburg-Marietta, WV-    Wood County.
 OH Area Comprising Wood County.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2020-20810 Filed 10-8-20; 8:45 am]
BILLING CODE 6560-50-P


