Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Infrastructure Requirements for the 2015 Ozone Standard, 15071-15073 [2020-04856]
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person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
Dated: March 9, 2020.
E.P. King,
Captain, U.S. Coast Guard, Captain of the
Port San Juan.
[FR Doc. 2020–05158 Filed 3–16–20; 8:45 am]
BILLING CODE 9110–04–P
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
ENVIRONMENTAL PROTECTION
AGENCY
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
[EPA–R03–OAR–2019–0103; FRL–10006–
20–Region 3]
40 CFR Part 52
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
Authority: 46 U.S.C. 70034, 70051; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
2. Revise § 165.770 to read as follows:
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§ 165.770 Security Zone; Limetree Bay
Terminals, St. Croix, U.S. Virgin Islands.
(a) Regulated area. The Coast Guard is
establishing a security zone in and
around Limetree Bay Terminals on the
south coast of St. Croix, U.S. Virgin
Islands. This security zone includes all
waters from surface to bottom,
encompassed by an imaginary line
connecting the following points: Point 1
in position 17°41′48″ N, 064°44′26″ W;
Point 2 in position 17°40′00″ N,
064°43′36″ W; Point 3 in position
17°39′36″ N, 064°44′48″ W; Point 4 in
position 17°41′33″ N, 064°45′08″ W;
then tracing the shoreline along the
water’s edge to the point of origin.
These coordinates are based upon North
American Datum 1983 (NAD 1983).
(b) Regulations. (1) Under § 165.33,
entry into or remaining within the
regulated area in paragraph (a) of this
section is prohibited unless authorized
by the Coast Guard Captain of the Port
San Juan or vessels have a scheduled
arrival at Limetree Bay Terminals, St.
Croix, in accordance with the Notice of
Arrival requirements of 33 CFR part
160, subpart C.
(2) Persons desiring to transit the area
of the security zone may contact the
COTP San Juan or designated
representative at telephone number
787–289–2041 or on VHF–FM Channel
16. If permission is granted, all persons
and vessels must comply with the
instructions of the COTP or designated
representative.
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Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
1. The authority citation for part 165
continues to read as follows:
■
■
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; Infrastructure Requirements
for the 2015 Ozone Standard
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the State of West Virginia.
Whenever new or revised national
ambient air quality standards (NAAQS
or standards) are promulgated, the Clean
Air Act (CAA) requires states to make an
initial SIP submission to provide for the
implementation, maintenance, and
enforcement of such NAAQS. This
submission is required to address basic
program elements, including, but not
limited to, regulatory structure,
monitoring, modeling, legal authority,
and adequate resources necessary to
assure attainment and maintenance of
the standards. This type of SIP revision
is commonly referred to as an
‘‘infrastructure’’ SIP and elements
addressed in such a submission are
referred to as infrastructure
requirements. West Virginia made a
submittal addressing most of the
infrastructure requirements for the 2015
ozone NAAQS and later supplemented
the submittal to address the interstate
transport elements; EPA is not acting on
the interstate transport elements at this
time. EPA is approving these revisions
in accordance with the requirements of
the CAA.
DATES: This final rule is effective on
April 16, 2020.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2019–0103. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
SUMMARY:
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15071
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Joseph Schulingkamp, Planning &
Implementation Branch (3AD30), Air &
Radiation Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. The telephone number is (215)
814–2021. Mr. Schulingkamp can also
be reached via electronic mail at
schulingkamp.joseph@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On December 18, 2019 (84 FR 69349),
EPA published a notice of proposed
rulemaking (NPRM) for the State of
West Virginia. In the NPRM, EPA
proposed approval of most portions of
West Virginia’s infrastructure SIP
revision for the 2015 ozone NAAQS.
The State submitted the infrastructure
SIP on September 14, 2018 through the
Department of Environmental Protection
(WVDEP); this State later supplemented
this submission on February 4, 2019 to
address the interstate transport elements
of CAA section 110(a)(2)(D)(i)(I).
Additional background on West
Virginia’s submittal, infrastructure SIPs,
and the ozone NAAQS can be found in
the NPRM.
II. Summary of SIP Revision and EPA
Analysis
West Virginia’s September 14, 2018
infrastructure SIP submittal addressed
the following infrastructure elements, or
portions thereof, for the 2015 ozone
NAAQS: CAA section 110(a)(2)(A), (B),
(C), D(i)(II), D(ii), (E), (F), (G), (H), (J),
(K), (L), and (M). The SIP submittal did
not address the portion of element (C)
which pertains to nonattainment new
source review requirements, or element
(I) which pertains to the nonattainment
requirements of part D, title I of the
CAA, because states are not required to
address these elements by the 3-year
submission deadline of section
110(a)(1), and will be addressed in a
separate process.
EPA has analyzed the SIP submission
and is making a determination that the
submittal meets the requirements of the
identified elements. A detailed
summary of EPA’s review and rationale
for approving West Virginia’s submittal
may be found in the technical support
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document (TSD) for the NPRM which is
available online at www.regulations.gov,
docket number EPA–R03–OAR–2019–
0103. Other specific requirements and
the rationale for EPA’s proposed action
are explained in the NPRM and will not
be restated here.
III. Response to Comments
EPA received three sets of anonymous
comments in response to the NPRM.
Two of the comments were difficult to
interpret but did not appear to support
EPA’s proposed approval. EPA’s best
effort to interpret and respond to these
two comments are also below.
Comment 1: The first commenter
disagreed with EPA’s proposed action
with regard to whether the State has
adequate resources. The commenter
stated that EPA must review financial
records and determine whether the State
has adequate funding and if the funding
is capable of sustaining the number of
employees on the State’s staff.
Response 1: EPA disagrees with the
comment. The comment does not
provide any specific facts or analysis to
support the concern about insufficient
resources. An audit of the State’s
financial records is not required in order
for EPA to determine that a state has
met the requirements of CAA section
110(a). The CAA section 110(a)(2)(E)(i)
requires that the State provide to EPA
‘‘necessary assurances’’ that it will have
adequate funding and personnel to
implement the relevant NAAQS. In
accordance with CAA section
110(a)(2)(E), which requires that the
State provide necessary assurances that
it has adequate resources and personnel,
EPA has concluded that the State has
provided the necessary assurances of
adequate resources and personnel in
accordance with CAA section
110(a)(2)(E), as explained in the TSD
included in the docket for this
rulemaking action.
For example, West Virginia described
in its submission that under State
statutory authority it ‘‘employs adequate
personnel and retains specialists under
W.Va. Code section 22–5–4(a)(8) that are
‘necessary, incident or convenient’ to
accomplish its statutory mandate to
carry out’’ the West Virginia SIP, and
currently maintains a staff of
approximately 80 full time employees.
West Virginia does not anticipate any
changes in necessary resources for the
five years following this submission.
West Virginia indicates that the State
has regulatory legal authority to
establish fees to cover permitting costs
beyond those already covered by its
federally approved Title V operating
permit program under 45CSR22, and
that it receives revenue from fines and
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enforcement settlements (Air Pollution
Control Fund). West Virginia also
receives federal funds under CAA
section 103 (Research, investigation,
training, and other activities) and
section 105 (Grants for support of air
pollution planning and control
programs), 42 U.S.C. 7403 and 7405.
The State air pollution control programs
also receive state general fund
appropriations. Therefore, EPA has
determined that West Virginia has
provided necessary assurances that it
has sufficient funding and personnel to
meet the requirements of section
110(a)(2)(E) for the 2015 ozone NAAQS.
Comment 2: The second comment
stated that EPA should disapprove West
Virginia’s infrastructure SIP submission
because ‘‘the committee’s position was
supported by the oil and gas industry.’’
The comment also suggested ‘‘[t]he SIP
could be suspended because of its nonenforcement.’’ The comment concluded
by saying ‘‘[t]he infrastructure SIP
should be disapproved immediately to
stop it being used to bully corporations
and public officials and allow another
bill to be passed without the new part
of the bill being gutted!’’
Response 2: EPA disagrees with the
comment. The commenter did not
provide any information beyond its
assertion in the comment as to why EPA
should disapprove West Virginia’s
infrastructure SIP submission. The
comment also failed to identify any part
of the West Virginia SIP that the State
is not enforcing. The Administrative
Procedures Act does not require that
EPA change its decision based on
‘‘comments consisting of little more
than assertions that in the opinions of
the commenters the agency got it
wrong,’’ when submitted without
supporting data. International Fabricare
Institute v. E.P.A., 972 F.2d 384 (D.C.
Cir. 1992). EPA’s review of the
infrastructure SIP submission, as
explained in the TSD for this
rulemaking action, shows that West
Virginia has provided the necessary
assurances that the State has the
unambiguous authority to enforce its
SIP and the measures contained therein.
It is also unclear what the commenter
was referring to in regard to some party
using the infrastructure SIP to ‘‘bully
corporations and public officials.’’ An
infrastructure SIP is simply a SIP
submission to establish that the state’s
existing EPA approved SIP, or the
existing SIP as revised in the
infrastructure SIP submission, meets the
applicable requirements to implement,
maintain, and enforce a new or revised
NAAQS. The infrastructure SIP is
required to address basic program
elements, including, but not limited to,
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regulatory structure, monitoring,
modeling, legal authority, and adequate
resources necessary to assure attainment
and maintenance of the new or revised
standard.
Comment 3: The third comment
suggested that EPA should disapprove
West Virginia’s infrastructure SIP
submission in full, stating, ‘‘[m]uch of
the infrastructure SIP could be used by
the federal government for any
purpose.’’ The commenter also
suggested that EPA has not been
meeting legislative deadlines and that
some members of Congress are not
aware of the purpose of infrastructure
SIP submissions.
Response 3: EPA disagrees with the
comment to the extent that it calls for
disapproving West Virginia’s
infrastructure SIP, because the
commenter did not provide any
information or basis to support such a
disapproval. Although the commenter
alleges EPA missed legislative
deadlines, the commenter did not
identify which deadlines EPA missed or
why those deadlines would be relevant
to this rulemaking. The Administrative
Procedures Act does not require that
EPA change its decision based on
‘‘comments consisting of little more
than assertions that in the opinions of
the commenters the agency got it
wrong,’’ when submitted without
supporting data. International Fabricare
Institute v. E.P.A., 972 F.2d 384 (D.C.
Cir. 1992). Nothing in the comment calls
into question EPA’s evaluation of West
Virginia’s infrastructure SIP for the 2015
ozone NAAQS for each applicable
requirement in CAA section 110(a)(2),
with the exception of section
110(a)(2)(D)(i)(I) which EPA is not
acting on at this time, and concludes the
State has met the applicable
requirements.
IV. Final Action
EPA is approving West Virginia’s
September 14, 2018 infrastructure
submittal as a revision to the West
Virginia SIP. EPA is approving the West
Virginia’s September 14, 2018 SIP
revision as meeting the requirements of
section 110(a)(2) of the CAA to
implement, maintain, and enforce the
2015 ozone NAAQS, including
specifically section 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M) for this NAAQS. This final
rulemaking action does not include
action on section 110(a)(2)(I) or portions
of section 110(a)(2)(C) referring to the
permit program under part D, title I of
the CAA. This rulemaking action also
does not address section
110(a)(2)(D)(i)(I) which pertains to the
interstate transport of emissions
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Federal Register / Vol. 85, No. 52 / Tuesday, March 17, 2020 / Rules and Regulations
addressed by West Virginia’s February
4, 2019 supplemental SIP revision; EPA
will act on West Virginia’s
supplemental SIP revision in a later
separate action.
V. Statutory and Executive Order
Reviews
A. General Requirements
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Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 18, 2020. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action,
pertaining to West Virginia’s
infrastructure requirements for the 2015
ozone NAAQS, may not be challenged
later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Dated: February 24, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
B. Submission to Congress and the
Comptroller General
40 CFR part 52 is amended as follows:
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).
Name of non-regulatory SIP revision
Applicable geographic area
State submittal
date
*
*
Section 110(a)(2) Infrastructure Requirements for the 2015 ozone
NAAQS.
*
Statewide .........
9/14/18
3/17/20, Federal
Register.
Fmt 4700
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PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart XX—West Virginia
2. In § 52.2520, amend the table in
paragraph table (e) by adding an entry
for ‘‘Section 110(a)(2) Infrastructure
Requirements for the 2015 ozone
NAAQS’’ at the end of the table to read
as follows:
■
§ 52.2520
*
*
Identification of plan.
*
*
(e) * * *
EPA approval date
*
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*
*
*
Docket #2019–0103. This action addresses the
following CAA elements of section 110(a)(2):
A, B, C, D(i)(II), D(ii), E, F, G, H, J, K, L, and
M.
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*
Additional explanation
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[Federal Register Volume 85, Number 52 (Tuesday, March 17, 2020)]
[Rules and Regulations]
[Pages 15071-15073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04856]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2019-0103; FRL-10006-20-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Infrastructure Requirements for the 2015 Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the State of West
Virginia. Whenever new or revised national ambient air quality
standards (NAAQS or standards) are promulgated, the Clean Air Act (CAA)
requires states to make an initial SIP submission to provide for the
implementation, maintenance, and enforcement of such NAAQS. This
submission is required to address basic program elements, including,
but not limited to, regulatory structure, monitoring, modeling, legal
authority, and adequate resources necessary to assure attainment and
maintenance of the standards. This type of SIP revision is commonly
referred to as an ``infrastructure'' SIP and elements addressed in such
a submission are referred to as infrastructure requirements. West
Virginia made a submittal addressing most of the infrastructure
requirements for the 2015 ozone NAAQS and later supplemented the
submittal to address the interstate transport elements; EPA is not
acting on the interstate transport elements at this time. EPA is
approving these revisions in accordance with the requirements of the
CAA.
DATES: This final rule is effective on April 16, 2020.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2019-0103. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
https://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2021. Mr. Schulingkamp can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On December 18, 2019 (84 FR 69349), EPA published a notice of
proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM,
EPA proposed approval of most portions of West Virginia's
infrastructure SIP revision for the 2015 ozone NAAQS. The State
submitted the infrastructure SIP on September 14, 2018 through the
Department of Environmental Protection (WVDEP); this State later
supplemented this submission on February 4, 2019 to address the
interstate transport elements of CAA section 110(a)(2)(D)(i)(I).
Additional background on West Virginia's submittal, infrastructure
SIPs, and the ozone NAAQS can be found in the NPRM.
II. Summary of SIP Revision and EPA Analysis
West Virginia's September 14, 2018 infrastructure SIP submittal
addressed the following infrastructure elements, or portions thereof,
for the 2015 ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), D(i)(II),
D(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The SIP submittal
did not address the portion of element (C) which pertains to
nonattainment new source review requirements, or element (I) which
pertains to the nonattainment requirements of part D, title I of the
CAA, because states are not required to address these elements by the
3-year submission deadline of section 110(a)(1), and will be addressed
in a separate process.
EPA has analyzed the SIP submission and is making a determination
that the submittal meets the requirements of the identified elements. A
detailed summary of EPA's review and rationale for approving West
Virginia's submittal may be found in the technical support
[[Page 15072]]
document (TSD) for the NPRM which is available online at
www.regulations.gov, docket number EPA-R03-OAR-2019-0103. Other
specific requirements and the rationale for EPA's proposed action are
explained in the NPRM and will not be restated here.
III. Response to Comments
EPA received three sets of anonymous comments in response to the
NPRM. Two of the comments were difficult to interpret but did not
appear to support EPA's proposed approval. EPA's best effort to
interpret and respond to these two comments are also below.
Comment 1: The first commenter disagreed with EPA's proposed action
with regard to whether the State has adequate resources. The commenter
stated that EPA must review financial records and determine whether the
State has adequate funding and if the funding is capable of sustaining
the number of employees on the State's staff.
Response 1: EPA disagrees with the comment. The comment does not
provide any specific facts or analysis to support the concern about
insufficient resources. An audit of the State's financial records is
not required in order for EPA to determine that a state has met the
requirements of CAA section 110(a). The CAA section 110(a)(2)(E)(i)
requires that the State provide to EPA ``necessary assurances'' that it
will have adequate funding and personnel to implement the relevant
NAAQS. In accordance with CAA section 110(a)(2)(E), which requires that
the State provide necessary assurances that it has adequate resources
and personnel, EPA has concluded that the State has provided the
necessary assurances of adequate resources and personnel in accordance
with CAA section 110(a)(2)(E), as explained in the TSD included in the
docket for this rulemaking action.
For example, West Virginia described in its submission that under
State statutory authority it ``employs adequate personnel and retains
specialists under W.Va. Code section 22-5-4(a)(8) that are `necessary,
incident or convenient' to accomplish its statutory mandate to carry
out'' the West Virginia SIP, and currently maintains a staff of
approximately 80 full time employees. West Virginia does not anticipate
any changes in necessary resources for the five years following this
submission. West Virginia indicates that the State has regulatory legal
authority to establish fees to cover permitting costs beyond those
already covered by its federally approved Title V operating permit
program under 45CSR22, and that it receives revenue from fines and
enforcement settlements (Air Pollution Control Fund). West Virginia
also receives federal funds under CAA section 103 (Research,
investigation, training, and other activities) and section 105 (Grants
for support of air pollution planning and control programs), 42 U.S.C.
7403 and 7405. The State air pollution control programs also receive
state general fund appropriations. Therefore, EPA has determined that
West Virginia has provided necessary assurances that it has sufficient
funding and personnel to meet the requirements of section 110(a)(2)(E)
for the 2015 ozone NAAQS.
Comment 2: The second comment stated that EPA should disapprove
West Virginia's infrastructure SIP submission because ``the committee's
position was supported by the oil and gas industry.'' The comment also
suggested ``[t]he SIP could be suspended because of its non-
enforcement.'' The comment concluded by saying ``[t]he infrastructure
SIP should be disapproved immediately to stop it being used to bully
corporations and public officials and allow another bill to be passed
without the new part of the bill being gutted!''
Response 2: EPA disagrees with the comment. The commenter did not
provide any information beyond its assertion in the comment as to why
EPA should disapprove West Virginia's infrastructure SIP submission.
The comment also failed to identify any part of the West Virginia SIP
that the State is not enforcing. The Administrative Procedures Act does
not require that EPA change its decision based on ``comments consisting
of little more than assertions that in the opinions of the commenters
the agency got it wrong,'' when submitted without supporting data.
International Fabricare Institute v. E.P.A., 972 F.2d 384 (D.C. Cir.
1992). EPA's review of the infrastructure SIP submission, as explained
in the TSD for this rulemaking action, shows that West Virginia has
provided the necessary assurances that the State has the unambiguous
authority to enforce its SIP and the measures contained therein. It is
also unclear what the commenter was referring to in regard to some
party using the infrastructure SIP to ``bully corporations and public
officials.'' An infrastructure SIP is simply a SIP submission to
establish that the state's existing EPA approved SIP, or the existing
SIP as revised in the infrastructure SIP submission, meets the
applicable requirements to implement, maintain, and enforce a new or
revised NAAQS. The infrastructure SIP is required to address basic
program elements, including, but not limited to, regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment and maintenance of the new or revised standard.
Comment 3: The third comment suggested that EPA should disapprove
West Virginia's infrastructure SIP submission in full, stating,
``[m]uch of the infrastructure SIP could be used by the federal
government for any purpose.'' The commenter also suggested that EPA has
not been meeting legislative deadlines and that some members of
Congress are not aware of the purpose of infrastructure SIP
submissions.
Response 3: EPA disagrees with the comment to the extent that it
calls for disapproving West Virginia's infrastructure SIP, because the
commenter did not provide any information or basis to support such a
disapproval. Although the commenter alleges EPA missed legislative
deadlines, the commenter did not identify which deadlines EPA missed or
why those deadlines would be relevant to this rulemaking. The
Administrative Procedures Act does not require that EPA change its
decision based on ``comments consisting of little more than assertions
that in the opinions of the commenters the agency got it wrong,'' when
submitted without supporting data. International Fabricare Institute v.
E.P.A., 972 F.2d 384 (D.C. Cir. 1992). Nothing in the comment calls
into question EPA's evaluation of West Virginia's infrastructure SIP
for the 2015 ozone NAAQS for each applicable requirement in CAA section
110(a)(2), with the exception of section 110(a)(2)(D)(i)(I) which EPA
is not acting on at this time, and concludes the State has met the
applicable requirements.
IV. Final Action
EPA is approving West Virginia's September 14, 2018 infrastructure
submittal as a revision to the West Virginia SIP. EPA is approving the
West Virginia's September 14, 2018 SIP revision as meeting the
requirements of section 110(a)(2) of the CAA to implement, maintain,
and enforce the 2015 ozone NAAQS, including specifically section
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J),
(K), (L), and (M) for this NAAQS. This final rulemaking action does not
include action on section 110(a)(2)(I) or portions of section
110(a)(2)(C) referring to the permit program under part D, title I of
the CAA. This rulemaking action also does not address section
110(a)(2)(D)(i)(I) which pertains to the interstate transport of
emissions
[[Page 15073]]
addressed by West Virginia's February 4, 2019 supplemental SIP
revision; EPA will act on West Virginia's supplemental SIP revision in
a later separate action.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 18, 2020. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action, pertaining to West Virginia's infrastructure
requirements for the 2015 ozone NAAQS, may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: February 24, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
0
2. In Sec. 52.2520, amend the table in paragraph table (e) by adding
an entry for ``Section 110(a)(2) Infrastructure Requirements for the
2015 ozone NAAQS'' at the end of the table to read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable geographic State submittal Additional
revision area date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Statewide............ 9/14/18 3/17/20, Federal Docket #2019-0103.
Infrastructure Requirements Register. This action
for the 2015 ozone NAAQS. addresses the
following CAA
elements of section
110(a)(2): A, B, C,
D(i)(II), D(ii), E,
F, G, H, J, K, L,
and M.
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[FR Doc. 2020-04856 Filed 3-16-20; 8:45 am]
BILLING CODE 6560-50-P
