Approval and Promulgation of Air Quality Implementation Plans; West Virginia; State Implementation Plans for the Cross-State Air Pollution Rule and for the Interstate Transport Requirements of the 2008 Ozone Standard, 41944-41948 [2019-17668]

Download as PDF 41944 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules Nitrogen dioxide, Ozone, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: August 5, 2019. Diana Esher, Acting Regional Administrator, Region III. [FR Doc. 2019–17667 Filed 8–15–19; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2013–0299 and EPA–R03– OAR–2019–0349; FRL–9998–34–Region 3] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; State Implementation Plans for the Cross-State Air Pollution Rule and for the Interstate Transport Requirements of the 2008 Ozone Standard Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve two state implementation plan (SIP) revisions submitted by the State of West Virginia, one submitted on March 27, 2018, and one on June 5, 2019. The June 5, 2019 submittal consists of a regulation that adopts the Cross-State Air Pollution Rule (CSAPR). Under the Federal CSAPR, large electricity generating units (EGUs) in West Virginia are subject to Federal Implementation Plans (FIPs) requiring the units to participate in CSAPR’s Federal trading program for annual emissions of nitrogen oxides (NOX), one of CSAPR’s two Federal trading programs for annual emissions of sulfur dioxide (SO2), and one of CSAPR’s two Federal trading programs for ozone season emissions of NOX. This action would approve the State’s regulation requiring large West Virginia EGUs to participate in new CSAPR state trading programs for annual NOX, annual SO2, and ozone season NOX emissions integrated with the CSAPR Federal trading programs, replacing the corresponding FIP requirements. EPA is proposing to approve the SIP revision because the submittal meets the requirements of the Clean Air Act (CAA) and EPA’s regulations for approval of a CSAPR full SIP revision replacing the requirements of a CSAPR FIP. Under the CSAPR regulations, approval of the SIP revision would automatically eliminate West Virginia EGU’s requirements under the corresponding CSAPR FIPs, thereby khammond on DSKBBV9HB2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 15:55 Aug 15, 2019 Jkt 247001 addressing West Virginia’s interstate transport (or ‘‘good neighbor’’) obligations for the 1997 fine particulate matter (PM2.5) national ambient air quality standard (NAAQS), the 2006 PM2.5 NAAQS, and the 2008 ozone NAAQS. Like the CSAPR FIP requirements that would be replaced, approval of the SIP revision would fully satisfy West Virginia’s good neighbor obligations for the 1997 PM2.5 NAAQS, the 2006 PM2.5 NAAQS, and the 2008 ozone NAAQS. In conjunction with EPA’s proposed approval of West Virginia’s June 5, 2019 CSAPR regulation, EPA is also proposing to approve West Virginia’s March 27, 2018 submittal related to West Virginia’s good neighbor obligations under the 2008 ozone NAAQS. These actions are being taken in accordance with the CAA. DATES: Written comments must be received on or before September 16, 2019. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R03– OAR–2013–0299 (for the West Virginia 2008 ozone good neighbor SIP) and EPA–R03–OAR–2019–0349 (for the West Virginia CSAPR SIP) at https:// www.regulations.gov, or via email to spielberger.susan@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, 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. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Marilyn Powers, Planning & Implementation Branch (3AD30), Air and Radiation Division, U.S. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Ms. Powers can be reached at (215) 814– 2308, or via electronic mail at powers.marilyn@epa.gov. SUPPLEMENTARY INFORMATION: On March 27, 2018, West Virginia, through the West Virginia Department of Environmental Protection (WVDEP), supplemented its February 17, 2012 infrastructure SIP for the 2008 ozone NAAQS to satisfy the requirements of CAA section 110(a)(2)(D)(i)(I). The March 27, 2018 submittal requested conditional approval contingent on the State’s adoption of the emission reduction requirements of 40 CFR 97, subpart EEEEE, the CSAPR NOX Ozone Season Group 2 Trading Program. On June 5, 2019, EPA received a SIP revision submittal from WVDEP seeking to incorporate the requirements of 40 CFR 97, subparts AAAAA (CSAPR NOX Annual Trading Program), CCCCC (CSAPR SO2 Group 1 Trading Program), and EEEEE (CSAPR NOX Ozone Season Group 2 Trading Program) into the West Virginia SIP (West Virginia CSAPR SIP). The June 5, 2019 submittal requested that EPA fully approve the March 27, 2018 submittal instead of the conditional approval West Virginia originally requested. I. Background 1. Cross-State Air Pollution Rule (CSAPR) On August 8, 2011, and October 26, 2016, EPA issued the Cross-State Air Pollution Rule (CSAPR) and the CSAPR Update, respectively, to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution.1 As amended (including by the CSAPR Update), CSAPR requires 27 eastern states to limit their statewide emissions of sulfur dioxide (SO2) and/or oxides of nitrogen (NOX) in order to mitigate transported air pollution unlawfully impacting other states’ ability to attain or maintain four national ambient air quality standards (NAAQS): The 1997 annual fine particulate matter (PM2.5) NAAQS, the 2006 24-hour PM2.5 NAAQS, the 1997 ozone NAAQS, and the 2008 ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide ‘‘budgets’’ for emissions of annual SO2, annual NOX, and/or ozone season NOX by each covered state’s large EGUs. The CSAPR state budgets are implemented in two phases of general increasing stringency: 1 See 76 FR 48208 (August 8, 2011) and 81 FR 74504 (October 26, 2016). E:\FR\FM\16AUP1.SGM 16AUP1 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS The Phase 1 budgets apply to emissions in 2015 and 2016; and the Phase 2 and CSAPR Update budgets apply to emissions in 2017 and later years. As a mechanism for achieving compliance with the emissions limitations, CSAPR establishes five Federal emissions trading programs: A program for annual NOX emissions; two geographically separate programs for annual SO2 emissions; and two geographically separate programs for ozone season NOX emissions. CSAPR also establishes requirements in a FIP applicable to the large EGUs in each covered state.2 Currently, the CSAPR FIP provisions require each state’s units to participate in up to three of the five CSAPR trading programs. CSAPR includes provisions under which states may submit and EPA may approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR’s Federal emissions trading programs or state emissions trading programs integrated with the Federal programs, provided that the SIP revisions meet all relevant criteria.3 Through such a SIP revision, a state may replace EPA’s default provisions for allocating emission allowances among the state’s units, employing any states elected methodology to allocate or auction the allowances, subject to timing conditions and limits on overall allowance quantities. In the case of CSAPR’s Federal trading programs for ozone season NOX emissions (or an integrated state trading program), a state may also expand trading program applicability to include certain smaller EGUs.4 If a state wants to replace the CSAPR FIP requirements with SIP requirements under which the state’s units participate in a state trading program that is integrated with and identical to the Federal trading program even as to the allocation and applicability provisions, the state may submit a SIP revision for that purpose as well. However, no emissions budget increases or other substantive changes 2 States are required to submit good neighbor SIPs three years after a NAAQS is promulgated. CAA section 110(a)(1) and (2). Where EPA finds that a state fails to submit a required SIP or disapproves a SIP, EPA is obligated to promulgate a FIP addressing the deficiency. CAA section 110(c)(1). 3 See 40 CFR 52.38 and 52.39. States also retain the ability to submit SIP revisions to meet their transport-related obligations using mechanisms other than the CSAPR Federal trading programs or integrated state trading programs. 4 States covered by both the CSAPR Update and the NOX SIP Call have the additional option to expand applicability under the CSAPR NOX Ozone Season Group 2 Trading Program to include nonEGUs that would have participated in the NOX Budget Trading Program. VerDate Sep<11>2014 15:55 Aug 15, 2019 Jkt 247001 to the trading program provisions are allowed. A state whose units are subject to multiple CSAPR Federal trading programs may submit SIP revisions to modify or replace the FIP requirements with respect to some or all of those trading programs. States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.5 Specific conditions for approval of each form of SIP revision are set forth in the CSAPR regulations. Under the first alternative—an ‘‘abbreviated’’ SIP revision—a state may submit a SIP revision that upon approval replaces the default allowance allocation and/or applicability provisions of a CSAPR Federal trading program for the state.6 Approval of an abbreviated SIP revision leaves the corresponding CSAPR FIP and all other provisions of the relevant Federal trading program in place for the state’s units. Under the second alternative—a ‘‘full’’ SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR Federal trading program for the state with a state trading program integrated with the Federal trading program, so long as the state trading program is substantively identical to the Federal trading program or does not substantively differ from the Federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.7 For purposes of a full SIP revision, a state may either adopt state rules with complete trading program language, incorporate the Federal trading program language into its state rules by reference (with appropriate conforming changes), or employ a combination of these approaches. The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision, two of which are potentially relevant to West Virginia.8 First, upon EPA’s approval of a full SIP revision as correcting the deficiency in the state’s SIP that was the basis for a particular set of CSAPR FIP requirements, the obligation to participate in the corresponding CSAPR 5 CSAPR also provides for a third, more streamlined form of SIP revision that is effective only for control periods in 2016 (or 2018 for CSAPR NOX Ozone Season Group 2 units) and is not relevant here. See 40 CFR 52.38(a)(3), (b)(3), (b)(7); 52.39(d), (g). 6 See 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.29(e), (h). 7 See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i). 8 Because there is no Indian country within West Virginia’s borders, the possible consequences of construction of new EGUs in Indian country are not relevant here. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 41945 Federal trading program is automatically eliminated for units subject to the state’s jurisdiction without the need for a separate EPA withdrawal action, so long as EPA’s approval of the SIP revision as meeting the requirements of the CSAPR regulations is full and unconditional.9 Second, if at the time a full SIP revision is approved EPA has already started recording allocations of allowances for a given control period to a state’s units, the Federal trading program provisions authorizing EPA to complete the process of allocating and recording allowances for that control period to those units will continue to apply, unless EPA’s approval of the SIP revision provides otherwise.10 In the 2011 CSAPR rulemaking, EPA determined that air pollution transported from West Virginia would unlawfully affect other states’ ability to attain or maintain the 1997 PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 1997 ozone NAAQS and therefore included the State’s EGUs in the CSAPR Federal trading programs for SO2 and annual NOX, fully addressing the State’s obligations regarding transported PM2.5 pollution, and the original CSAPR Federal trading program for ozone season NOX, fully addressing the State’s obligations regarding transported ozone pollution with respect to the 1997 ozone NAAQS.11 Upon judicial review, the State’s CSAPR Phase 2 budget for ozone season NOX was remanded to EPA for reconsideration.12 In the 2016 CSAPR Update rulemaking, based on updated data and analysis, EPA determined that air pollution transported from West Virginia would no longer unlawfully affect other states’ ability to attain or maintain the 1997 ozone NAAQS but would unlawfully affect other states’ ability to attain or maintain the 2008 ozone NAAQS, and EPA therefore included the State’s EGUs in the CSAPR Update Federal trading program for ozone season NOX as a partial remedy addressing the State’s good neighbor obligations with respect to the 2008 ozone NAAQS.13 Most recently, in a 2018 action, based on further updated data and analyses, EPA determined that implementation of the ozone season 9 See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j) 40 CFR 52.38(a)(7), (b)(11); 52.39(k). 11 See 76 FR at 48209–13; see also 40 CFR 52.38(a)(2)(i), 52.39(b). 12 EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 (D.C. Cir. 2015). 13 See 81 FR at 74506–09. EPA also ended requirements for West Virginia’s EGUs to participate in the original CSAPR ozone season NOX trading program after 2016. See 40 CFR 52.38(b)(2)(ii)–(iii). 10 See E:\FR\FM\16AUP1.SGM 16AUP1 41946 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS NOX budgets established in the 2016 CSAPR Update rulemaking for West Virginia and 19 other states now represents a full remedy for the states’ interstate transport obligations with respect to the 2008 ozone NAAQS.14 As a result of the three actions just discussed, West Virginia units meeting the CSAPR applicability criteria are currently subject to FIP requirements for participation in three CSAPR (or CSAPR Update) Federal trading programs that fully address the State’s interstate transport obligations with respect to the 1997 and 2006 PM2.5 NAAQS and the 2008 ozone NAAQS. This proposed action would incorporate into the SIP the CSAPR state trading program regulations to replace the three currently applicable CSAPR Federal trading program regulations for West Virginia units, thereby fully addressing through SIP provisions the State’s interstate transport obligations with respect to each of these three NAAQS.15 2. Infrastructure SIP for the 2008 Ozone NAAQS On March 27, 2008 (73 FR 16436), EPA promulgated an ozone NAAQS that revised the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm. Pursuant to CAA section 110(a)(1), within three years after promulgation of a new or revised NAAQS (or shorter, if EPA prescribes), states must submit SIPs that meet the applicable requirements of section 110(a)(2). EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as ‘‘infrastructure SIP’’ submissions. One of the structural requirements of section 110(a)(2) is section 110(a)(2)(D)(i), also known as the ‘‘good neighbor’’ provision, which generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air quality effects on neighboring states due to interstate transport of air pollution. There are four sub-elements, or ‘‘prongs,’’ within section 110(a)(2)(D)(i) of the CAA. CAA section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. The two provisions of this section 83 FR 65878 (December 21, 2018). noted earlier, EPA determined in the CSAPR Update that West Virginia has no remaining good neighbor obligation with respect to the 1997 ozone NAAQS. are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). This proposed action addresses only prongs 1 and 2 of section 110(a)(2)(D)(i). The other portions of section 110(a)(2)(D), specifically 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), were addressed in EPA’s approval of West Virginia’s February 17, 2012 SIP submission.16 II. Summary of West Virginia’s SIP Revisions Because EPA had not at that time determined that the CSAPR Update constituted a full remedy, on March 27, 2018, West Virginia submitted a SIP revision to address its remaining interstate transport obligations for the 2008 8-hour ozone NAAQS. The submittal was intended to show that the emission reductions required by the CSAPR Update, along with other existing measures, are adequate to prohibit emissions in West Virginia from significantly contributing to nonattainment, or interfering with the maintenance, of downwind states with respect to the 2008 ozone NAAQS. In the submittal, West Virginia stated its intent to adopt the requirements of 40 CFR 97, subpart EEEEE. The submittal letter requested that EPA conditionally approve the submittal, with the condition that West Virginia adopt the requirements of the CSAPR NOX Ozone Season Group 2 Trading Program under subpart EEEEE (West Virginia rule 45 CSR 43) and submit the rule to EPA for approval. West Virginia’s June 5, 2019 submittal is comprised of West Virginia regulation 45 CSR 43, entitled Cross-State Air Pollution to Control Annual Nitrogen Oxides Emissions, Annual Sulfur Dioxide Emissions, and Ozone Season Nitrogen Oxides Emissions, which is intended to replace the CSAPR FIP for the corresponding Federal trading programs. The regulation generally incorporates by reference the requirements of 40 CFR 97, subparts AAAAA, CCCCC, and EEEEE, with exception of the provisions that are applicable to Indian Country and the 14 See 15 As VerDate Sep<11>2014 15:55 Aug 15, 2019 Jkt 247001 16 EPA approved West Virginia’s February 17, 2012 infrastructure SIP submittal on April 7, 2014 (79 FR 19001), which did not include a submission for the 2008 ozone good neighbor SIP. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 provisions for allowance allocations (for which 45 CSR 43 established new provisions substantively identical to the analogous provisions of 40 CFR 97 applicable to West Virginia, with budgets starting in 2019).17 Specifically, section 45–43–3 incorporates by reference most of the provisions of the three Federal trading programs, while sections 45–43–4, 45–43–5, and 45–43– 6 adopt the amounts of the emissions budgets, new unit set-asides, and variability limits that apply to West Virginia units for, respectively, the CSAPR NOX Annual Trading Program, the CSAPR NOX Ozone Season Group 2 Trading Program, and the CSAPR SO2 Group 1 Trading Program. In its June 5, 2019 submittal, WVDEP also requested that EPA grant full rather than conditional approval of its March 27, 2018 transport SIP submittal because the reason for previously requesting only conditional approval of the transport SIP submittal no longer applied. III. EPA Analysis West Virginia’s June 5, 2019 submittal is a full CSAPR SIP submission that is intended to replace the Federal CSAPR trading programs with state trading programs integrated with the Federal trading programs and does not seek to alter either allowance allocations or applicability. Under 40 CFR 52.38 and 52.39, a full CSAPR SIP revision of this nature must meet the following criteria: • Complete, substantively identical trading program provisions. The SIP revision must adopt complete state trading program regulations substantively identical to the complete Federal trading program regulations at 40 CFR 97.402 through 97.435, 97.502 through 97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through 97.835, as applicable. • Only non-substantive substitutions for the term ‘‘State.’’ The SIP revision may substitute the name of the state for the term ‘‘State’’ as used in the Federal trading program regulations, but only to the extent that EPA determines that the substitutions do not substantively change the trading program regulations. • Exclusion of provisions addressing units in Indian country. The SIP 17 Although West Virginia rule 45 CSR 43 establishes 2019 as the beginning year for EGU budgets, new unit set-asides, and variability limits under the State’s rule, allocations have already been recorded under the CSAPR FIPs for the control periods through 2022 for the CSAPR NOX Ozone Season Group 2 trading program and through 2023 for the CSAPR NOX Annual and CSAPR SO2 Group 1 trading programs. Allocations under the West Virginia CSAPR SIP (which are identical to the allocations under the FIPs) will therefore start with the 2023 and 2024 control periods. E:\FR\FM\16AUP1.SGM 16AUP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules revision may not impose requirements on any unit in any Indian country within the state’s borders and must not include the Federal trading program provisions governing allocation of allowances from any Indian country new unit set-aside for the state. Under the West Virginia CSAPR SIP, the subject EGUs in the State would participate in state trading programs that are integrated with and identical to the Federal trading programs with respect to the applicability provisions, allocation methodology, NOX ozone season budget, and other provisions that apply to units in West Virginia under the Federal trading programs. As noted above, the West Virginia CSAPR SIP submittal generally incorporates by reference the corresponding Federal trading programs under the CSAPR FIP, and is therefore substantively identical to the CSAPR FIP West Virginia seeks to replace. The SIP submittal replaces the provisions in 40 CFR 97.404, 97.604, and 97.804 that generically refer to a ‘‘State’’ and to ‘‘Indian Country’’ within a state to refer instead only to West Virginia. The SIP submittal also adopts only the emissions budget, new unit setaside, and variability limit amounts that apply to West Virginia and omits the analogous amounts that apply to other states. These changes are appropriate for the State’s trading program regulations, which will apply only to units subject to West Virginia’s jurisdiction. The SIP submittal does not otherwise substitute for the term ‘‘State’’ and makes no other changes to the Federal trading program regulations besides the required exclusion of provisions that would impose requirements on units in Indian country or that would govern allocation of allowances from Indian country new unit set-asides. Because the West Virginia CSAPR SIP maintains the applicable requirements of subparts AAAAA, CCCCC, and EEEEE, is substantively identical to the Federal trading programs under CSAPR as applied to units in West Virginia, makes no substantive substitutions for the term ‘‘State’’, and excludes provisions addressing units in Indian County, the SIP revision meets the approvability conditions in 40 CFR 52.38 and 52.39 for a CSAPR SIP revision. As discussed earlier, EPA has determined that participation of West Virginia’s EGUs in the CSAPR Update trading program under 40 CFR 97, subpart EEEEE, fully addresses the State’s good neighbor obligation with respect to the 2008 ozone NAAQS. The June 5, 2019 submittal of West Virginia regulation 45 CSR 43 that includes West Virginia’s CSAPR ozone season NOX trading program meets the commitment VerDate Sep<11>2014 15:55 Aug 15, 2019 Jkt 247001 by West Virginia in its March 27, 2018 SIP submittal for 2008 ozone transport to address this Good Neighbor obligation through SIP provisions rather than FIP provisions. With West Virginia’s adoption and submittal of a CSAPR ozone season NOX trading program that is substantively identical to the Federal ozone season NOX trading program under 40 CFR part 97, subpart EEEEE, with the exceptions previously noted, and which is approvable as discussed in the previous paragraph, West Virginia’s March 27, 2018 transport SIP submittal, as supplemented by West Virginia’s June 5, 2019 CSAPR SIP submittal, is approvable. Proposed Action For the reasons discussed in this document, EPA is proposing to approve West Virginia’s CSAPR SIP submittal, Regulation 45 CSR 43, of June 5, 2019. This state rule establishes West Virginia CSAPR state trading programs for annual NOX, ozone season NOX, and annual SO2 emissions for units in the state. The West Virginia CSAPR state trading programs would be integrated with the Federal CSAPR NOX Annual Trading Program, the Federal CSAPR NOX Ozone Season Group 2 Trading Program, and the Federal CSAPR SO2 Group 1 Trading Program, respectively, and would be substantively identical to the Federal trading programs. EPA is also proposing to approve the West Virginia 2008 transport SIP submittal of March 27, 2018, as supplemented with the portion of the June 5, 2019 submittal relating to subpart EEEEE (the CSAPR NOX Ozone Season Group 2 Trading Program). Although WVDEP originally requested conditional approval of its March 27, 2018 submittal demonstrating compliance with its transport obligations under section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS, the State has now met its commitment to submit its CSAPR SIP ozone season NOX trading program through the June 5, 2019 submittal. EPA is soliciting public comments on the issues discussed in this document.18 These comments will be considered before taking final action. We propose to find that, if approval of West Virginia’s CSAPR SIP is finalized, the State will have addressed its section 110(a)(2)(D)(i)(I) obligations with 18 EPA is not reopening for public comment any of the analysis or conclusions finalized in any of the CSAPR rulemakings. Rather, this action simply evaluates and seeks comment on whether the SIP submissions from West Virginia are consistent with the regulations issued and determinations made in those prior actions. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 41947 respect to the 1997 and 2006 PM2.5 and 2008 ozone NAAQS, consistent with the determinations made in the various CSAPR rulemakings. IV. Incorporation by Reference In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference West Virginia regulation 45 CSR 43. EPA has made, and will continue to make, these materials generally available through https:// www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). V. Statutory and Executive Order Reviews 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 y approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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 E:\FR\FM\16AUP1.SGM 16AUP1 41948 Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules 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 action proposing to approve West Virginia’s CSAPR SIP submittal and West Virginia’s transport submittal for the 2008 8-hour ozone NAAQS, 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. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: August 6, 2019. Cosmo Servidio, Regional Administrator, Region III. [FR Doc. 2019–17668 Filed 8–15–19; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 121 [EPA–HQ–OW–2019–0405; FRL–9998–38– OW] RIN 2040–AF86 Updating Regulations on Water Quality Certification Environmental Protection Agency (EPA). ACTION: Proposed rule; public meeting or (hearing). khammond on DSKBBV9HB2PROD with PROPOSALS AGENCY: On August 8, 2019, the Environmental Protection Agency (EPA or agency) Administrator signed a notice of proposed rulemaking (NPRM) providing updates and clarifications to the substantive and procedural requirements for water quality SUMMARY: VerDate Sep<11>2014 15:55 Aug 15, 2019 Jkt 247001 certification under Clean Water Act. The agency is announcing that a public hearing will be held in Salt Lake City, Utah on September 5 and 6, 2019, to provide interested parties the opportunity to present data, views, or information concerning the NPRM. The pre-publication version of this proposal can be found at https://www.epa.gov/ cwa-401. DATES: The agency will hold a public hearing on Thursday, September 5 and Friday, September 6, 2019, in Salt Lake City, Utah. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing. ADDRESSES: The hearing will be held in the Nancy Tessman Auditorium at the Salt Lake City Public Library, Main Library, 210 East 400 South, Salt Lake City, Utah 84111. The September 5 session will convene at 2:00 p.m. (local time) and will conclude no later than 8:00 p.m. and the September 6 session will convene at 9:00 a.m. and will conclude no later than 12:00 p.m. Documents related to the proposal will be available for public inspection through the Federal eRulemaking Portal: https://www.regulations.gov, Docket ID No. EPA–HQ–OW–2019–0405 once the NPRM publishes in the Federal Register. Documents can also be viewed at the Environmental Protection Agency Docket Center, located at 1301 Constitution Avenue NW, Room 3334, Washington, DC between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding legal holidays. In addition, the pre-publication version of the NPRM and the economic analysis for the proposed rulemaking are available at https://www.epa.gov/cwa-401. If you are unable to attend the public hearing on September 5 or 6 you will be able to submit your comments, identified by Docket ID No. EPA–HQ– OW–2019–0405, to the Federal eRulemaking Portal: https:// www.regulations.gov (our preferred method). Follow the online instructions for submitting comments. All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https:// www.regulations.gov/, including any personal information provided. For additional information on the public hearing, see the ‘‘Public Participation’’ heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Office of Water (4504– T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 number: (202) 564–3351; email address: cwa401@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On August 8, 2019, the agency Administrator signed a proposed rulemaking providing updates and clarifications to the substantive and procedural requirements for water quality certification under Clean Water Act section 401 and consistent with Executive Order 13868, signed on April 10, 2019, entitled ‘‘Promoting Energy Infrastructure and Economic Growth.’’ The agency is holding a public hearing in Salt Lake City, Utah on September 5 and 6, 2019, to provide interested parties the opportunity to present data, views, or information concerning the NPRM. The agency has submitted the proposed rulemaking to the Office of the Federal Register, and it will be published separately in the Federal Register. The comment period on the proposed action will end 60 days after the NPRM publishes in the Federal Register. The pre-publication version of the NPRM can be found at https:// www.epa.gov/cwa-401 and will be replaced with the official version of the NPRM after it publishes. II. Public Participation A. Participation in Public Hearing The public is invited to speak during the public hearing on September 5 and 6, 2019. The agency will begin preregistering speakers for the hearing upon signature of this document. Those interested in speaking at the hearing can sign up for a three-minute speaking slot within an identified 45-minute timeframe. To register to speak at the hearing, please use the online registration form available at https:// www.epa.gov/cwa-401/outreach-andengagement-cwa-section-401certification. The last day to pre-register to speak at the hearing will be August 30, 2019. On September 4, 2019, the agency will post a general agenda for the hearing that will list pre-registered speakers in approximate order at: https://www.epa.gov/cwa-401/outreachand-engagement-cwa-section-401certification. The agency will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk. The agency will make every effort to accommodate all speakers who arrive E:\FR\FM\16AUP1.SGM 16AUP1

Agencies

[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Proposed Rules]
[Pages 41944-41948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17668]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0299 and EPA-R03-OAR-2019-0349; FRL-9998-34-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; State Implementation Plans for the Cross-State Air 
Pollution Rule and for the Interstate Transport Requirements of the 
2008 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve two state implementation plan (SIP) revisions submitted by the 
State of West Virginia, one submitted on March 27, 2018, and one on 
June 5, 2019. The June 5, 2019 submittal consists of a regulation that 
adopts the Cross-State Air Pollution Rule (CSAPR). Under the Federal 
CSAPR, large electricity generating units (EGUs) in West Virginia are 
subject to Federal Implementation Plans (FIPs) requiring the units to 
participate in CSAPR's Federal trading program for annual emissions of 
nitrogen oxides (NOX), one of CSAPR's two Federal trading 
programs for annual emissions of sulfur dioxide (SO2), and 
one of CSAPR's two Federal trading programs for ozone season emissions 
of NOX. This action would approve the State's regulation 
requiring large West Virginia EGUs to participate in new CSAPR state 
trading programs for annual NOX, annual SO2, and 
ozone season NOX emissions integrated with the CSAPR Federal 
trading programs, replacing the corresponding FIP requirements. EPA is 
proposing to approve the SIP revision because the submittal meets the 
requirements of the Clean Air Act (CAA) and EPA's regulations for 
approval of a CSAPR full SIP revision replacing the requirements of a 
CSAPR FIP. Under the CSAPR regulations, approval of the SIP revision 
would automatically eliminate West Virginia EGU's requirements under 
the corresponding CSAPR FIPs, thereby addressing West Virginia's 
interstate transport (or ``good neighbor'') obligations for the 1997 
fine particulate matter (PM2.5) national ambient air quality 
standard (NAAQS), the 2006 PM2.5 NAAQS, and the 2008 ozone 
NAAQS. Like the CSAPR FIP requirements that would be replaced, approval 
of the SIP revision would fully satisfy West Virginia's good neighbor 
obligations for the 1997 PM2.5 NAAQS, the 2006 
PM2.5 NAAQS, and the 2008 ozone NAAQS.
    In conjunction with EPA's proposed approval of West Virginia's June 
5, 2019 CSAPR regulation, EPA is also proposing to approve West 
Virginia's March 27, 2018 submittal related to West Virginia's good 
neighbor obligations under the 2008 ozone NAAQS. These actions are 
being taken in accordance with the CAA.

DATES: Written comments must be received on or before September 16, 
2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2013-0299 (for the West Virginia 2008 ozone good neighbor SIP) and 
EPA-R03-OAR-2019-0349 (for the West Virginia CSAPR SIP) at https://www.regulations.gov, or via email to [email protected]. For 
comments submitted at Regulations.gov, follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. For either manner of submission, 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. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, Planning & 
Implementation Branch (3AD30), Air and Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Ms. Powers can be reached at (215) 
814-2308, or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: On March 27, 2018, West Virginia, through 
the West Virginia Department of Environmental Protection (WVDEP), 
supplemented its February 17, 2012 infrastructure SIP for the 2008 
ozone NAAQS to satisfy the requirements of CAA section 
110(a)(2)(D)(i)(I). The March 27, 2018 submittal requested conditional 
approval contingent on the State's adoption of the emission reduction 
requirements of 40 CFR 97, subpart EEEEE, the CSAPR NOX 
Ozone Season Group 2 Trading Program. On June 5, 2019, EPA received a 
SIP revision submittal from WVDEP seeking to incorporate the 
requirements of 40 CFR 97, subparts AAAAA (CSAPR NOX Annual 
Trading Program), CCCCC (CSAPR SO2 Group 1 Trading Program), 
and EEEEE (CSAPR NOX Ozone Season Group 2 Trading Program) 
into the West Virginia SIP (West Virginia CSAPR SIP). The June 5, 2019 
submittal requested that EPA fully approve the March 27, 2018 submittal 
instead of the conditional approval West Virginia originally requested.

I. Background

1. Cross-State Air Pollution Rule (CSAPR)

    On August 8, 2011, and October 26, 2016, EPA issued the Cross-State 
Air Pollution Rule (CSAPR) and the CSAPR Update, respectively, to 
address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning 
interstate transport of air pollution.\1\ As amended (including by the 
CSAPR Update), CSAPR requires 27 eastern states to limit their 
statewide emissions of sulfur dioxide (SO2) and/or oxides of 
nitrogen (NOX) in order to mitigate transported air 
pollution unlawfully impacting other states' ability to attain or 
maintain four national ambient air quality standards (NAAQS): The 1997 
annual fine particulate matter (PM2.5) NAAQS, the 2006 24-
hour PM2.5 NAAQS, the 1997 ozone NAAQS, and the 2008 ozone 
NAAQS. The CSAPR emissions limitations are defined in terms of maximum 
statewide ``budgets'' for emissions of annual SO2, annual 
NOX, and/or ozone season NOX by each covered 
state's large EGUs. The CSAPR state budgets are implemented in two 
phases of general increasing stringency:

[[Page 41945]]

The Phase 1 budgets apply to emissions in 2015 and 2016; and the Phase 
2 and CSAPR Update budgets apply to emissions in 2017 and later years. 
As a mechanism for achieving compliance with the emissions limitations, 
CSAPR establishes five Federal emissions trading programs: A program 
for annual NOX emissions; two geographically separate 
programs for annual SO2 emissions; and two geographically 
separate programs for ozone season NOX emissions. CSAPR also 
establishes requirements in a FIP applicable to the large EGUs in each 
covered state.\2\ Currently, the CSAPR FIP provisions require each 
state's units to participate in up to three of the five CSAPR trading 
programs.
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    \1\ See 76 FR 48208 (August 8, 2011) and 81 FR 74504 (October 
26, 2016).
    \2\ States are required to submit good neighbor SIPs three years 
after a NAAQS is promulgated. CAA section 110(a)(1) and (2). Where 
EPA finds that a state fails to submit a required SIP or disapproves 
a SIP, EPA is obligated to promulgate a FIP addressing the 
deficiency. CAA section 110(c)(1).
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    CSAPR includes provisions under which states may submit and EPA may 
approve SIP revisions to modify or replace the CSAPR FIP requirements 
while allowing states to continue to meet their transport-related 
obligations using either CSAPR's Federal emissions trading programs or 
state emissions trading programs integrated with the Federal programs, 
provided that the SIP revisions meet all relevant criteria.\3\ Through 
such a SIP revision, a state may replace EPA's default provisions for 
allocating emission allowances among the state's units, employing any 
states elected methodology to allocate or auction the allowances, 
subject to timing conditions and limits on overall allowance 
quantities. In the case of CSAPR's Federal trading programs for ozone 
season NOX emissions (or an integrated state trading 
program), a state may also expand trading program applicability to 
include certain smaller EGUs.\4\ If a state wants to replace the CSAPR 
FIP requirements with SIP requirements under which the state's units 
participate in a state trading program that is integrated with and 
identical to the Federal trading program even as to the allocation and 
applicability provisions, the state may submit a SIP revision for that 
purpose as well. However, no emissions budget increases or other 
substantive changes to the trading program provisions are allowed. A 
state whose units are subject to multiple CSAPR Federal trading 
programs may submit SIP revisions to modify or replace the FIP 
requirements with respect to some or all of those trading programs.
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    \3\ See 40 CFR 52.38 and 52.39. States also retain the ability 
to submit SIP revisions to meet their transport-related obligations 
using mechanisms other than the CSAPR Federal trading programs or 
integrated state trading programs.
    \4\ States covered by both the CSAPR Update and the 
NOX SIP Call have the additional option to expand 
applicability under the CSAPR NOX Ozone Season Group 2 
Trading Program to include non-EGUs that would have participated in 
the NOX Budget Trading Program.
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    States can submit two basic forms of CSAPR-related SIP revisions 
effective for emissions control periods in 2017 or later years.\5\ 
Specific conditions for approval of each form of SIP revision are set 
forth in the CSAPR regulations. Under the first alternative--an 
``abbreviated'' SIP revision--a state may submit a SIP revision that 
upon approval replaces the default allowance allocation and/or 
applicability provisions of a CSAPR Federal trading program for the 
state.\6\ Approval of an abbreviated SIP revision leaves the 
corresponding CSAPR FIP and all other provisions of the relevant 
Federal trading program in place for the state's units. Under the 
second alternative--a ``full'' SIP revision--a state may submit a SIP 
revision that upon approval replaces a CSAPR Federal trading program 
for the state with a state trading program integrated with the Federal 
trading program, so long as the state trading program is substantively 
identical to the Federal trading program or does not substantively 
differ from the Federal trading program except as discussed above with 
regard to the allowance allocation and/or applicability provisions.\7\ 
For purposes of a full SIP revision, a state may either adopt state 
rules with complete trading program language, incorporate the Federal 
trading program language into its state rules by reference (with 
appropriate conforming changes), or employ a combination of these 
approaches.
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    \5\ CSAPR also provides for a third, more streamlined form of 
SIP revision that is effective only for control periods in 2016 (or 
2018 for CSAPR NOX Ozone Season Group 2 units) and is not 
relevant here. See 40 CFR 52.38(a)(3), (b)(3), (b)(7); 52.39(d), 
(g).
    \6\ See 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.29(e), (h).
    \7\ See 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
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    The CSAPR regulations identify several important consequences and 
limitations associated with approval of a full SIP revision, two of 
which are potentially relevant to West Virginia.\8\ First, upon EPA's 
approval of a full SIP revision as correcting the deficiency in the 
state's SIP that was the basis for a particular set of CSAPR FIP 
requirements, the obligation to participate in the corresponding CSAPR 
Federal trading program is automatically eliminated for units subject 
to the state's jurisdiction without the need for a separate EPA 
withdrawal action, so long as EPA's approval of the SIP revision as 
meeting the requirements of the CSAPR regulations is full and 
unconditional.\9\ Second, if at the time a full SIP revision is 
approved EPA has already started recording allocations of allowances 
for a given control period to a state's units, the Federal trading 
program provisions authorizing EPA to complete the process of 
allocating and recording allowances for that control period to those 
units will continue to apply, unless EPA's approval of the SIP revision 
provides otherwise.\10\
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    \8\ Because there is no Indian country within West Virginia's 
borders, the possible consequences of construction of new EGUs in 
Indian country are not relevant here.
    \9\ See 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j)
    \10\ See 40 CFR 52.38(a)(7), (b)(11); 52.39(k).
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    In the 2011 CSAPR rulemaking, EPA determined that air pollution 
transported from West Virginia would unlawfully affect other states' 
ability to attain or maintain the 1997 PM2.5 NAAQS, the 2006 
24-hour PM2.5 NAAQS, and the 1997 ozone NAAQS and therefore 
included the State's EGUs in the CSAPR Federal trading programs for 
SO2 and annual NOX, fully addressing the State's 
obligations regarding transported PM2.5 pollution, and the 
original CSAPR Federal trading program for ozone season NOX, 
fully addressing the State's obligations regarding transported ozone 
pollution with respect to the 1997 ozone NAAQS.\11\ Upon judicial 
review, the State's CSAPR Phase 2 budget for ozone season 
NOX was remanded to EPA for reconsideration.\12\ In the 2016 
CSAPR Update rulemaking, based on updated data and analysis, EPA 
determined that air pollution transported from West Virginia would no 
longer unlawfully affect other states' ability to attain or maintain 
the 1997 ozone NAAQS but would unlawfully affect other states' ability 
to attain or maintain the 2008 ozone NAAQS, and EPA therefore included 
the State's EGUs in the CSAPR Update Federal trading program for ozone 
season NOX as a partial remedy addressing the State's good 
neighbor obligations with respect to the 2008 ozone NAAQS.\13\ Most 
recently, in a 2018 action, based on further updated data and analyses, 
EPA determined that implementation of the ozone season

[[Page 41946]]

NOX budgets established in the 2016 CSAPR Update rulemaking 
for West Virginia and 19 other states now represents a full remedy for 
the states' interstate transport obligations with respect to the 2008 
ozone NAAQS.\14\
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    \11\ See 76 FR at 48209-13; see also 40 CFR 52.38(a)(2)(i), 
52.39(b).
    \12\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 
(D.C. Cir. 2015).
    \13\ See 81 FR at 74506-09. EPA also ended requirements for West 
Virginia's EGUs to participate in the original CSAPR ozone season 
NOX trading program after 2016. See 40 CFR 
52.38(b)(2)(ii)-(iii).
    \14\ See 83 FR 65878 (December 21, 2018).
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    As a result of the three actions just discussed, West Virginia 
units meeting the CSAPR applicability criteria are currently subject to 
FIP requirements for participation in three CSAPR (or CSAPR Update) 
Federal trading programs that fully address the State's interstate 
transport obligations with respect to the 1997 and 2006 
PM2.5 NAAQS and the 2008 ozone NAAQS. This proposed action 
would incorporate into the SIP the CSAPR state trading program 
regulations to replace the three currently applicable CSAPR Federal 
trading program regulations for West Virginia units, thereby fully 
addressing through SIP provisions the State's interstate transport 
obligations with respect to each of these three NAAQS.\15\
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    \15\ As noted earlier, EPA determined in the CSAPR Update that 
West Virginia has no remaining good neighbor obligation with respect 
to the 1997 ozone NAAQS.
---------------------------------------------------------------------------

2. Infrastructure SIP for the 2008 Ozone NAAQS

    On March 27, 2008 (73 FR 16436), EPA promulgated an ozone NAAQS 
that revised the levels of the primary and secondary 8-hour ozone 
standards from 0.08 parts per million (ppm) to 0.075 ppm. Pursuant to 
CAA section 110(a)(1), within three years after promulgation of a new 
or revised NAAQS (or shorter, if EPA prescribes), states must submit 
SIPs that meet the applicable requirements of section 110(a)(2). EPA 
has historically referred to these SIP submissions made for the purpose 
of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. One of the structural requirements 
of section 110(a)(2) is section 110(a)(2)(D)(i), also known as the 
``good neighbor'' provision, which generally requires SIPs to contain 
adequate provisions to prohibit in-state emissions activities from 
having certain adverse air quality effects on neighboring states due to 
interstate transport of air pollution. There are four sub-elements, or 
``prongs,'' within section 110(a)(2)(D)(i) of the CAA. CAA section 
110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any 
source or other type of emissions activity in one state from emitting 
any air pollutant in amounts that will contribute significantly to 
nonattainment, or interfere with maintenance, of the NAAQS in another 
state. The two provisions of this section are referred to as prong 1 
(significant contribution to nonattainment) and prong 2 (interference 
with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs to contain 
adequate provisions to prohibit emissions that will interfere with 
measures required to be included in the applicable implementation plan 
for any other state under part C to prevent significant deterioration 
of air quality (prong 3) or to protect visibility (prong 4). This 
proposed action addresses only prongs 1 and 2 of section 
110(a)(2)(D)(i). The other portions of section 110(a)(2)(D), 
specifically 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii), were addressed 
in EPA's approval of West Virginia's February 17, 2012 SIP 
submission.\16\
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    \16\ EPA approved West Virginia's February 17, 2012 
infrastructure SIP submittal on April 7, 2014 (79 FR 19001), which 
did not include a submission for the 2008 ozone good neighbor SIP.
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II. Summary of West Virginia's SIP Revisions

    Because EPA had not at that time determined that the CSAPR Update 
constituted a full remedy, on March 27, 2018, West Virginia submitted a 
SIP revision to address its remaining interstate transport obligations 
for the 2008 8-hour ozone NAAQS. The submittal was intended to show 
that the emission reductions required by the CSAPR Update, along with 
other existing measures, are adequate to prohibit emissions in West 
Virginia from significantly contributing to nonattainment, or 
interfering with the maintenance, of downwind states with respect to 
the 2008 ozone NAAQS. In the submittal, West Virginia stated its intent 
to adopt the requirements of 40 CFR 97, subpart EEEEE. The submittal 
letter requested that EPA conditionally approve the submittal, with the 
condition that West Virginia adopt the requirements of the CSAPR 
NOX Ozone Season Group 2 Trading Program under subpart EEEEE 
(West Virginia rule 45 CSR 43) and submit the rule to EPA for approval.
    West Virginia's June 5, 2019 submittal is comprised of West 
Virginia regulation 45 CSR 43, entitled Cross-State Air Pollution to 
Control Annual Nitrogen Oxides Emissions, Annual Sulfur Dioxide 
Emissions, and Ozone Season Nitrogen Oxides Emissions, which is 
intended to replace the CSAPR FIP for the corresponding Federal trading 
programs. The regulation generally incorporates by reference the 
requirements of 40 CFR 97, subparts AAAAA, CCCCC, and EEEEE, with 
exception of the provisions that are applicable to Indian Country and 
the provisions for allowance allocations (for which 45 CSR 43 
established new provisions substantively identical to the analogous 
provisions of 40 CFR 97 applicable to West Virginia, with budgets 
starting in 2019).\17\ Specifically, section 45-43-3 incorporates by 
reference most of the provisions of the three Federal trading programs, 
while sections 45-43-4, 45-43-5, and 45-43-6 adopt the amounts of the 
emissions budgets, new unit set-asides, and variability limits that 
apply to West Virginia units for, respectively, the CSAPR 
NOX Annual Trading Program, the CSAPR NOX Ozone 
Season Group 2 Trading Program, and the CSAPR SO2 Group 1 
Trading Program. In its June 5, 2019 submittal, WVDEP also requested 
that EPA grant full rather than conditional approval of its March 27, 
2018 transport SIP submittal because the reason for previously 
requesting only conditional approval of the transport SIP submittal no 
longer applied.
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    \17\ Although West Virginia rule 45 CSR 43 establishes 2019 as 
the beginning year for EGU budgets, new unit set-asides, and 
variability limits under the State's rule, allocations have already 
been recorded under the CSAPR FIPs for the control periods through 
2022 for the CSAPR NOX Ozone Season Group 2 trading 
program and through 2023 for the CSAPR NOX Annual and 
CSAPR SO2 Group 1 trading programs. Allocations under the 
West Virginia CSAPR SIP (which are identical to the allocations 
under the FIPs) will therefore start with the 2023 and 2024 control 
periods.
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III. EPA Analysis

    West Virginia's June 5, 2019 submittal is a full CSAPR SIP 
submission that is intended to replace the Federal CSAPR trading 
programs with state trading programs integrated with the Federal 
trading programs and does not seek to alter either allowance 
allocations or applicability. Under 40 CFR 52.38 and 52.39, a full 
CSAPR SIP revision of this nature must meet the following criteria:
     Complete, substantively identical trading program 
provisions. The SIP revision must adopt complete state trading program 
regulations substantively identical to the complete Federal trading 
program regulations at 40 CFR 97.402 through 97.435, 97.502 through 
97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through 
97.835, as applicable.
     Only non-substantive substitutions for the term ``State.'' 
The SIP revision may substitute the name of the state for the term 
``State'' as used in the Federal trading program regulations, but only 
to the extent that EPA determines that the substitutions do not 
substantively change the trading program regulations.
     Exclusion of provisions addressing units in Indian 
country. The SIP

[[Page 41947]]

revision may not impose requirements on any unit in any Indian country 
within the state's borders and must not include the Federal trading 
program provisions governing allocation of allowances from any Indian 
country new unit set-aside for the state.
    Under the West Virginia CSAPR SIP, the subject EGUs in the State 
would participate in state trading programs that are integrated with 
and identical to the Federal trading programs with respect to the 
applicability provisions, allocation methodology, NOX ozone 
season budget, and other provisions that apply to units in West 
Virginia under the Federal trading programs. As noted above, the West 
Virginia CSAPR SIP submittal generally incorporates by reference the 
corresponding Federal trading programs under the CSAPR FIP, and is 
therefore substantively identical to the CSAPR FIP West Virginia seeks 
to replace. The SIP submittal replaces the provisions in 40 CFR 97.404, 
97.604, and 97.804 that generically refer to a ``State'' and to 
``Indian Country'' within a state to refer instead only to West 
Virginia. The SIP submittal also adopts only the emissions budget, new 
unit set-aside, and variability limit amounts that apply to West 
Virginia and omits the analogous amounts that apply to other states. 
These changes are appropriate for the State's trading program 
regulations, which will apply only to units subject to West Virginia's 
jurisdiction. The SIP submittal does not otherwise substitute for the 
term ``State'' and makes no other changes to the Federal trading 
program regulations besides the required exclusion of provisions that 
would impose requirements on units in Indian country or that would 
govern allocation of allowances from Indian country new unit set-
asides. Because the West Virginia CSAPR SIP maintains the applicable 
requirements of subparts AAAAA, CCCCC, and EEEEE, is substantively 
identical to the Federal trading programs under CSAPR as applied to 
units in West Virginia, makes no substantive substitutions for the term 
``State'', and excludes provisions addressing units in Indian County, 
the SIP revision meets the approvability conditions in 40 CFR 52.38 and 
52.39 for a CSAPR SIP revision.
    As discussed earlier, EPA has determined that participation of West 
Virginia's EGUs in the CSAPR Update trading program under 40 CFR 97, 
subpart EEEEE, fully addresses the State's good neighbor obligation 
with respect to the 2008 ozone NAAQS. The June 5, 2019 submittal of 
West Virginia regulation 45 CSR 43 that includes West Virginia's CSAPR 
ozone season NOX trading program meets the commitment by 
West Virginia in its March 27, 2018 SIP submittal for 2008 ozone 
transport to address this Good Neighbor obligation through SIP 
provisions rather than FIP provisions. With West Virginia's adoption 
and submittal of a CSAPR ozone season NOX trading program 
that is substantively identical to the Federal ozone season 
NOX trading program under 40 CFR part 97, subpart EEEEE, 
with the exceptions previously noted, and which is approvable as 
discussed in the previous paragraph, West Virginia's March 27, 2018 
transport SIP submittal, as supplemented by West Virginia's June 5, 
2019 CSAPR SIP submittal, is approvable.

Proposed Action

    For the reasons discussed in this document, EPA is proposing to 
approve West Virginia's CSAPR SIP submittal, Regulation 45 CSR 43, of 
June 5, 2019. This state rule establishes West Virginia CSAPR state 
trading programs for annual NOX, ozone season 
NOX, and annual SO2 emissions for units in the 
state. The West Virginia CSAPR state trading programs would be 
integrated with the Federal CSAPR NOX Annual Trading 
Program, the Federal CSAPR NOX Ozone Season Group 2 Trading 
Program, and the Federal CSAPR SO2 Group 1 Trading Program, 
respectively, and would be substantively identical to the Federal 
trading programs.
    EPA is also proposing to approve the West Virginia 2008 transport 
SIP submittal of March 27, 2018, as supplemented with the portion of 
the June 5, 2019 submittal relating to subpart EEEEE (the CSAPR 
NOX Ozone Season Group 2 Trading Program). Although WVDEP 
originally requested conditional approval of its March 27, 2018 
submittal demonstrating compliance with its transport obligations under 
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS, the State has now 
met its commitment to submit its CSAPR SIP ozone season NOX 
trading program through the June 5, 2019 submittal. EPA is soliciting 
public comments on the issues discussed in this document.\18\ These 
comments will be considered before taking final action. We propose to 
find that, if approval of West Virginia's CSAPR SIP is finalized, the 
State will have addressed its section 110(a)(2)(D)(i)(I) obligations 
with respect to the 1997 and 2006 PM2.5 and 2008 ozone 
NAAQS, consistent with the determinations made in the various CSAPR 
rulemakings.
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    \18\ EPA is not reopening for public comment any of the analysis 
or conclusions finalized in any of the CSAPR rulemakings. Rather, 
this action simply evaluates and seeks comment on whether the SIP 
submissions from West Virginia are consistent with the regulations 
issued and determinations made in those prior actions.
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IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference West Virginia regulation 45 CSR 43. EPA has made, and will 
continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

V. Statutory and Executive Order Reviews

    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 y approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed 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

[[Page 41948]]

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 action proposing to approve West Virginia's CSAPR 
SIP submittal and West Virginia's transport submittal for the 2008 8-
hour ozone NAAQS, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: August 6, 2019.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2019-17668 Filed 8-15-19; 8:45 am]
 BILLING CODE 6560-50-P
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