Air Plan Approval; West Virginia; Redesignation of the Marshall Sulfur Dioxide Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan, 67661-67665 [2020-21757]

Download as PDF Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations reached via electronic mail at goold.megan@epa.gov. SUPPLEMENTARY INFORMATION: ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 I. Background The Marshall Area is comprised of the Clay, Franklin, and Washington Tax Districts of Marshall County, West Air Plan Approval; West Virginia; Virginia. On March 18, 2020, West Redesignation of the Marshall Sulfur Virginia, through the West Virginia Dioxide Nonattainment Area to Attainment and Approval of the Area’s Department of Environmental Protection (WVDEP), submitted a redesignation Maintenance Plan request for the Marshall, West Virginia AGENCY: Environmental Protection SO2 Nonattainment Area (Marshall Area Agency (EPA). or Area). In conjunction with its request, WVDEP submitted SIP revisions ACTION: Final rule. comprised of a maintenance plan for the SUMMARY: The Environmental Protection Area, SO2 emissions limits for the Agency (EPA) is approving a Mitchell Power Plant (Mitchell), and a redesignation request and state modeling analysis demonstrating that implementation plan (SIP) revisions the Mitchell limits provide for submitted by the State of West Virginia attainment in the Area. related to the 2010 primary national The Marshall Area was designated ambient air quality standard (NAAQS or nonattainment for the 2010 SO2 NAAQS Standard) for sulfur dioxide (SO2) (2010 in the first round of designations for the SO2 NAAQS). Emissions of SO2 in the NAAQS published on August 5, 2013, Marshall, West Virginia Area have been which became effective on October 4, permanently reduced, a maintenance 2013. Under CAA section 191(a), plan has been adopted that includes attainment plan SIPs were due for areas limits that assure continued attainment designated nonattainment in round one and monitored ambient SO2 readings in 18 months after the effective date of designation, or April 4, 2015. Such SIPs the nonattainment area are currently were required by CAA section 192(a) to well below the 2010 SO2 NAAQS. The provide for attainment of the NAAQS as effect of this action changes the expeditiously as practicable, but no later designation of the Marshall Area from nonattainment to attainment of the 2010 than five years from the effective date of nonattainment designation, or October SO2 NAAQS. This action is being taken 4, 2018. West Virginia submitted an under the Clean Air Act (CAA). attainment SIP on March 17, 2017 (2017 DATES: This final rule is effective on SIP).1 The SIP addressed the required November 25, 2020. elements of an attainment SIP under ADDRESSES: EPA has established a CAA section 172(c), including an docket for this action under Docket ID attainment demonstration that the State Number EPA–R03–OAR–2020–0171. All asserted showed attainment of the 2010 documents in the docket are listed on SO2 NAAQS, SO2 emissions limits for the https://www.regulations.gov the Mitchell Power Plant, reasonably website. Although listed in the index, available control measures including some information is not publicly reasonably available control technology available, e.g., confidential business (RACM/RACT), reasonable further information (CBI) or other information progress (RFP), contingency measures, whose disclosure is restricted by statute. and certification that nonattainment Certain other material, such as new source review (NNSR) permit copyrighted material, is not placed on program requirements were being met. the internet and will be publicly The 2017 SIP included a West Virginia available only in hard copy form. Compliance Order on Consent (2016 Publicly available docket materials are consent order) that required Kentucky available through https:// Power Company, the operator of www.regulations.gov, or please contact American Electric Power’s (AEP) the person identified in the FOR FURTHER Mitchell Power Plant, to comply with an INFORMATION CONTACT section for SO2 maximum emissions limit from additional availability information. Units 1 and 2, of 6,175 pounds per hour FOR FURTHER INFORMATION CONTACT: (lbs/hr) on a 30-day rolling average, Megan Goold, Planning & Implementation Branch (3AD30), Air & 1 On March 18, 2016, EPA made a finding of Radiation Division, U.S. Environmental failure to submit nonattainment area SIPs for 19 nonattainment areas, including the Marshall Area. Protection Agency, Region III, 1650 letter to West Virginia dated September 27, Arch Street, Philadelphia, Pennsylvania EPA’s 2017 confirmed that West Virginia’s March 17, 2017 19103. The telephone number is (215) submittal corrected the deficiency identified in the 814–2027. Ms. Megan Goold can also be finding. [EPA–R03–OAR–2020–0171; FRL–10015– 34–Region 3] VerDate Sep<11>2014 16:27 Oct 23, 2020 Jkt 253001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 67661 along with associated monitoring, recordkeeping, and reporting requirements, starting on January 1, 2017. The March 18, 2020 submittal requesting redesignation included a demonstration showing the area is in attainment, a maintenance plan, contingency measures, and a December 2, 2019 consent order (2019 consent order) with Kentucky Power for Mitchell with lower SO2 emissions limits based on modeling with a changed stack height. Specifically, the 2019 consent order establishes an SO2 emissions limit for Mitchell Units 1 and 2 as a maximum of 3,149 lbs/hr on a 30day rolling average, with compliance parameters including continuous emissions monitoring, recordkeeping including a calculation of the daily 30day average, reporting of deviations from the requirements and semi-annual compliance reporting. Compliance with the limits and other provisions in the 2019 consent order were required starting on January 1, 2020. Under CAA section 110(k)(2) through (4), EPA was required to take action to approve or disapprove West Virginia’s 2017 SIP within 12 months of determining it to be complete, but EPA did not take timely action. Subsequently, the Center for Biological Diversity and other plaintiffs (CBD) sued EPA in the U.S. District Court for the Northern District of California seeking a court order to compel EPA’s action on West Virginia’s 2017 SIP and several other SIPs for other areas in the nation. Center for Biological Diversity, et al., v. Wheeler, No. 4:18–cv–03544– YGR. That lawsuit resulted in the plaintiffs and EPA agreeing to a schedule, entered by the court as an order, for EPA to take action on the covered SIPs by certain deadlines. The court ordered deadline for EPA to take action on West Virginia’s 2017 SIP is October 30, 2020. The order also provided that if EPA issues a redesignation to attainment for any area for which the order required EPA action on a submitted SIP covered by the order, then EPA’s obligation to take action on that SIP’s CAA section 172(c) elements would be automatically terminated. As noted in the proposal, this action to redesignate the Marshall, West Virginia nonattainment area to attainment and approve the submitted maintenance plan with a lower emissions limit than that contained in the 2017 SIP submission will moot EPA’s requirement under the consent order to take action on the 2017 SIP. E:\FR\FM\26OCR1.SGM 26OCR1 67662 Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations II. Summary of SIP Revision and EPA Analysis West Virginia’s March 18, 2020 redesignation request included a maintenance plan providing for continued attainment of the SO2 NAAQS for a period of ten years following redesignation of the Area, SO2 emissions limits for Mitchell, and a modeling analysis demonstrating that the Mitchell limits provide for attainment in the Area. West Virginia also requested that EPA incorporate the 2019 consent order into the SIP. Under CAA section 107(d)(3)(E), there are five criteria which must be met before a nonattainment area may be redesignated to attainment: 1. EPA has determined that the relevant NAAQS has been attained in the area; 2. The applicable implementation plan has been fully approved by EPA under section 110(k); 3. EPA has determined that improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the SIP, Federal regulations, and other permanent and enforceable reductions; 4. EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A of the CAA; and, 5. The state has met all applicable requirements for the area under section 110 and part D. The June 30, 2020 proposal (85 FR 39505) provides a detailed discussion of each requirement and EPA’s analysis of how each requirement was met and is not repeated here. To summarize the analysis in the notice of proposed rulemaking (NPRM), EPA determined that the modeling submitted as part of the maintenance plan for the redesignation request submitted on March 18, 2020 shows that the Marshall Area is attaining the 2010 SO2 NAAQS, that the air quality improvement in the Area is attributable to permanent and enforceable emission reductions at Mitchell, that the maintenance plan assures that the area will continue to attain the 2010 SO2 NAAQS, and that West Virginia has met all applicable requirements under section 110 (general SIP requirements) and part D of title I of the CAA (SIP requirements for nonattainment areas) for purposes of this redesignation. On this basis, EPA finds that West Virginia has adequately addressed the five basic components necessary to redesignate the Marshall Area to attainment. EPA received one adverse comment on the proposal. To review the full comment received, refer to the Docket VerDate Sep<11>2014 16:27 Oct 23, 2020 Jkt 253001 for this rule, as identified in the section of this document. A summary of the comment received, and EPA’s response are provided below. ADDRESSES III. Public Comment and EPA Response Comment: The commenter asserts that EPA needs to do more to guarantee that the Mitchell plant will not violate the NAAQS. Specifically, the commenter expresses concern that the result of the modeling for Mitchell Plant of 196.2 micrograms per cubic meter (mg/m3) is too close to 196.4 mg/m3 (corresponding to the level of the NAAQS, which is 75 parts per billion (ppb)), and therefore does not provide an adequate margin of safety to protect public health. Also, that EPA improperly ‘‘rounded up’’ to obtain the value of 196.4 mg/m3, and that 196.4 mg/m3 is not equivalent to the NAAQS, which is expressed as 75 ppb. In addition, the commenter believes that if the AERMOD model was run with a finer grid, the results would show NAAQS violations, and questions the margin of error of the AERMOD model. Finally, the commenter asks how EPA expects the modeled areas to maintain the NAAQS and suggests that a monitor is needed near the Mitchell plant. Response: EPA disagrees with the commenter’s assertion that more is needed to guarantee that the Mitchell plant will not cause a violation of the NAAQS. First, the 2010 SO2 NAAQS was set at a level which already provides for an adequate margin of safety, as required by CAA Section 109(b)(1). Section 109(b)(1) defines a primary standard as one where ‘‘the attainment and maintenance of which, in the judgment of the Administrator, based on [the air quality] criteria and allowing an adequate margin of safety, are requisite to protect the public health.’’ CAA section 109(b)(1). As noted when EPA set the SO2 standard, ‘‘[t]hus, in selecting primary standards that include an adequate margin of safety, the Administrator is seeking not only to prevent pollution levels that have been demonstrated to be harmful but also to prevent lower pollutant levels that may pose an unacceptable risk of harm, even if the risk is not precisely identified as to nature or degree.’’ 75 FR 35520, 35521 (June 22, 2010). Because the NAAQS already includes a margin of safety, the fact that the 99th percentile of maximum daily one-hour modeled concentrations averaged over five years is below the NAAQS of 196.4 mg/m3 ensures that public health is protected. EPA also disagrees that EPA improperly ‘‘rounded up’’ to develop the 196.4 mg/m3 value that is equivalent to the 75 ppb NAAQS standard. The PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 commenter does not identify the number that was supposedly rounded up, so EPA cannot directly address that claim. EPA recognized the need to identify and apply a consistent value expressed in mg/m3 that EPA considers equivalent to 75 ppb, so in the Round 3 intended designations (82 FR 41903), published September 5, 2017, EPA determined a value of 196.4 mg/m3 (based on calculations using all available significant figures) to be equivalent to 75 ppb. To avoid confusion, EPA is expecting attainment and redesignation demonstrations to show achievement with concentrations at or below precisely 196.4 mg/m3.2 EPA concludes that the Marshall modeling results of 196.2 mg/m3 demonstrate that the area meets the standard. Because monitoring data was also available for this area, EPA analyzed that data, which showed a design value for the most recent three-year period (2017 through 2019) of 8 ppb. This monitored data, which is from the same previously violating monitor that caused this area to be designated nonattainment in 2013 based on 2009–2011 data, provides further evidence that SO2 emissions concentrations have greatly improved in this area and supports EPA’s redesignation of the area to attainment. Regarding the commenter’s question about the margin of error for AERMOD, EPA notes that AERMOD is a refined, steady-state (both emissions and meteorology over a 1-hour time step), multiple source, air-dispersion model that was originally promulgated by the EPA as part of its December 2005 revision to the Guideline on Air Quality Models, and is the preferred model to use for industrial sources in this type of air quality analysis. Furthermore, AERMOD predicts concentrations in many areas within the nonattainment area, rather than just at the monitor location, and therefore provides a more robust set of concentration data to assess attainment within the area than would be provided by a few SO2 monitors. EPA believes that the use of AERMOD in this Redesignation Request and Maintenance Plan was an appropriate choice regardless of any potential ‘‘margin of error’’ in the model. EPA also disagrees with the commenter’s assertion that a finer modeling grid resolution should have been used. EPA’s Guidance for the 12 While some Round 3 designation TSDs explained that this value was ‘‘equivalent . . . using a 2.619 ug/m3 conversion factor’’ (more precisely, using a conversion factor of approximately 2.6187), in fact EPA here was determining the concentration value in ug/m3 that is to be considered equivalent to 75 ppb, rather than the precise value of the conversion factor. E:\FR\FM\26OCR1.SGM 26OCR1 Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations hour SO2 Nonattainment SIP Submissions states, ‘‘Receptor placement should be of sufficient density to provide resolution needed to detect significant gradients in the concentrations with receptors placed closer together near the source to detect local gradients and placed farther apart away from the source’’ (page A–9).3 The area of maximum concentration in this modeling analysis had a 100 meter spaced receptor grid, which is the finest scale in the modeling domain. One of the reasons which would call for a finer grid is if there were large elevation differences between the facility and the area of maximum concentration, and that is not the case here. The facility is 0.67 kilometers (km) from the modeled maximum concentration and the elevation differences are minimal. Regarding the commenter’s question regarding how the Mitchell plant will maintain the standard, as stipulated by CAA 175A, the state must submit a maintenance plan which demonstrates how the source within the Marshall Area will provide for maintenance of the standard for the next ten years. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the ten years following the initial ten-year period. To address the possibility of future NAAQS violations, the maintenance plan must also contain contingency measures to assure prompt correction of any future violations. Specifically, the maintenance plan should address five requirements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) the verification of continued attainment; and (5) a contingency plan.4 As detailed in the NPRM for this action, WV submitted a maintenance plan adequately addressing these five components necessary to maintain the SO2 NAAQS in the Marshall Area. IV. Final Action EPA is making a finding that the Marshall Area has attained the 2010 SO2 NAAQS, as demonstrated by a modeling analysis reflecting a new SO2 emission limit for the Mitchell Power Plant and reflecting evidence (described in the notice of proposed rulemaking) that the Mitchell Power Plant is meeting this 3 https://www.epa.gov/sites/production/files/ 2016-06/documents/20140423guidance_ nonattainment_sip.pdf. 4 See Memorandum from John Calcagni, Director, Air Quality Management Division, EPA, ‘‘Procedures for Processing Requests to Redesignate Areas to Attainment,’’ September 4, 1992. VerDate Sep<11>2014 16:27 Oct 23, 2020 Jkt 253001 limit. EPA is also determining that West Virginia has met the planning requirements necessary for EPA to redesignate the Marshall Area from nonattainment to attainment of the 2010 SO2 NAAQS, including the requirements for permanent and enforceable measures, submission of an approvable maintenance plan that will assure attainment for ten years after redesignation, and that all other applicable CAA requirements under section 110 and part D, as discussed in the NPRM for this rule, have been met. Therefore, EPA is approving the Marshall Area redesignation request, maintenance plan, SO2 emission limits and associated compliance parameters for Mitchell in a 2019 consent order, and the modeling demonstration showing that the limits provide for maintenance. EPA is taking these actions under the CAA. IV. Incorporation by Reference In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of West Virginia’s 2010 SO2 Maintenance Plan for the Marshall Area and the Mitchell Power Plant Consent Order CO–SIP–C–2019–13 described in the amendments to 40 CFR part 52 set forth below. 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). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA’s approval, and will be incorporated by reference in the next update to the SIP compilation.5 V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to 5 62 PO 00000 FR 27968 (May 22, 1997). Frm 00027 Fmt 4700 Sfmt 4700 67663 attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 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 these reasons, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866. • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). E:\FR\FM\26OCR1.SGM 26OCR1 67664 Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 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 approving the redesignation of the West Virginia Marshall Nonattainment Area and associated maintenance plan may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).) Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting andrecordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: September 28, 2020. Cosmo Servidio, Regional Administrator, Region III. For the reasons stated in the preamble, the EPA amends 40 CFR parts 52 and 81 as follows: 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. List of Subjects Subpart XX—West Virginia 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting andrecordkeeping requirements, Sulfur oxides, Volatile organic compounds. ■ ■ 40 CFR Part 81 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, § 52.2520 2. Section 52.2520 is amended: a. In the table in paragraph (d), by adding the entry ‘‘Mitchell Power Plant’’ at the end of the table; and ■ b. In the table in paragraph (e) by adding an entry for ‘‘2010 Sulfur Dioxide Maintenance Plan—Marshall Area’’ at the end of the table. The additions read as follows: * Identification of plan. * * (d) * * * * * EPA—APPROVED SOURCE SPECIFIC REQUIREMENTS Permit/order or registration number Source name * * * Mitchell Power Plant ............... Consent Order CO–SIP–C– 2019–13. State effective date * 01/01/2020 Additional explanation/citation at 40 52.2565 EPA approval date * 10/26/2020, [insert Federal Register citation]. * * Established SO2 emission limit. (e) * * * Name of non-regulatory SIP revision * 2010 Sulfur Dioxide Maintenance Plan. Applicable geographic area * * Marshall Area (Clay, Franklin, and Washington Tax Districts of Marshall County). State submittal date * 03/18/20 * 10/26/2020, [insert Federal Register citation]. 3. Section 52.2525 is amended by adding paragraph (e) to read as follows: by the Department of Environmental Protection on March 18, 2020. § 52.2525 PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES ■ Control strategy: Sulfur dioxide. * * * * * (e) EPA approves the maintenance plan for Clay, Franklin, and Washington Tax Districts, West Virginia, submitted VerDate Sep<11>2014 16:27 Oct 23, 2020 Jkt 253001 4. The authority citation for part 81 continues to read as follows: ■ PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Additional explanation EPA approval date * * Docket No. EPA–R03–OAR– 2020–0171. Authority: 42 U.S.C. 7401 et seq. Subpart C—Section 107 Attainment Status Designations 5. In § 81.349 amend the table ‘‘West Virginia—2010 Sulfur Dioxide NAAQS [Primary]’’ by revising the entry for ‘‘Marshall, WV’’ to read as follows: ■ E:\FR\FM\26OCR1.SGM 26OCR1 67665 Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations § 81.349 * West Virginia. * * * * WEST VIRGINIA—2010 SULFUR DIOXIDE NAAQS [Primary] Designation Designated area1 3 Date 2 Marshall, WV: Marshall County (part) ...................................................................................................................................... Area consisting of Clay Tax District, Franklin Tax District, and Washington Tax District. * * * * * 11/25/2020 * Type Attainment. * 1 Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian country in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country. 2 This date is April 9, 2018, unless otherwise noted. 3 Mineral County will be designated by December 31, 2020. * * * * Andrew Bouchard, Sector Policies and Programs Division (E143–01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541– 4036; and email address: bouchard.andrew@epa.gov. SUPPLEMENTARY INFORMATION: * [FR Doc. 2020–21757 Filed 10–23–20; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA–HQ–OAR–2010–0682; FRL–10014–47– OAR] National Emission Standards for Hazardous Air Pollutants: Petroleum Refinery Sector: Action Denying a Petition for Reconsideration Environmental Protection Agency (EPA). ACTION: Denial of petition for reconsideration. AGENCY: The U.S. Environmental Protection Agency (EPA) is providing notice that it has responded to a petition for reconsideration of a final rule published in the Federal Register on February 4, 2020. The rule promulgated amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP): Petroleum Refinery Sector based on the residual risk and technology review (RTR) conducted for the Petroleum Refinery source category. On April 6, 2020, the EPA received a petition for reconsideration on five issues related to the February 4, 2020, final rule. On September 3, 2020, the Administrator notified the petitioner by letter that the EPA was denying reconsideration. The basis for the denial is set out fully in the letter sent to the petitioner, and this letter is available in the rulemaking docket. DATES: This rule is effective on October 26, 2020. FOR FURTHER INFORMATION CONTACT: For questions about this action, contact Mr. SUMMARY: VerDate Sep<11>2014 16:27 Oct 23, 2020 Jkt 253001 I. How can I get copies of this document and other related information? This Federal Register document, the petition for reconsideration, and the letter denying the petition for reconsideration are available in the docket the EPA established for the Petroleum Refining sector under Docket ID No. EPA–HQ–OAR–2010–0682. The petition for reconsideration is titled, April 6, 2020 Petition for Reconsideration from EarthJustice, which is available in Docket ID No. EPA–HQ–OAR–2010–0682. The document for the EPA’s response letter denying the petition for reconsideration is titled, EPA’s Response to the April 6, 2020 Petition for Reconsideration from EarthJustice, which is also available in Docket ID No. EPA–HQ–OAR–2010– 0682. 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 (i.e., confidential business information 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 either electronically through https:// www.regulations.gov/ or in hard copy at the EPA Docket Center, Room 3334, WJC West Building, 1301 Constitution Ave. NW, Washington, DC. The Public PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744 and the telephone number for the EPA Docket Center is (202) 566–1742. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID–19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/ dockets. The amended Petroleum Refinery Sector NESHAP was published in the Federal Register on February 4, 2020, at 85 FR 6064. II. Judicial Review Section 307(b)(1) of the Clean Air Act (CAA) specifies which Federal Courts of Appeal have venue over petitions for review of final EPA actions. This section provides, in part, that ‘‘a petition for review of action of the Administrator in promulgating . . . any emission standard or requirement under section [112] of [the CAA],’’ or any other ‘‘nationally applicable’’ final action, ‘‘may be filed only in the United States Court of Appeals for the District of Columbia.’’ The EPA has determined that its denial of the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because the actions directly affect the Petroleum Refinery Sector NESHAP, which are nationally applicable CAA section 112 standards. Thus, any petitions for review of the EPA’s decision denying the petitioner’s request for reconsideration must be filed in the E:\FR\FM\26OCR1.SGM 26OCR1

Agencies

[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Rules and Regulations]
[Pages 67661-67665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21757]



[[Page 67661]]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2020-0171; FRL-10015-34-Region 3]


Air Plan Approval; West Virginia; Redesignation of the Marshall 
Sulfur Dioxide Nonattainment Area to Attainment and Approval of the 
Area's Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is approving a 
redesignation request and state implementation plan (SIP) revisions 
submitted by the State of West Virginia related to the 2010 primary 
national ambient air quality standard (NAAQS or Standard) for sulfur 
dioxide (SO2) (2010 SO2 NAAQS). Emissions of 
SO2 in the Marshall, West Virginia Area have been 
permanently reduced, a maintenance plan has been adopted that includes 
limits that assure continued attainment and monitored ambient 
SO2 readings in the nonattainment area are currently well 
below the 2010 SO2 NAAQS. The effect of this action changes 
the designation of the Marshall Area from nonattainment to attainment 
of the 2010 SO2 NAAQS. This action is being taken under the 
Clean Air Act (CAA).

DATES: This final rule is effective on November 25, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0171. 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: Megan Goold, 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) 814-2027. Ms. Megan Goold can also be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Marshall Area is comprised of the Clay, Franklin, and 
Washington Tax Districts of Marshall County, West Virginia. On March 
18, 2020, West Virginia, through the West Virginia Department of 
Environmental Protection (WVDEP), submitted a redesignation request for 
the Marshall, West Virginia SO2 Nonattainment Area (Marshall 
Area or Area). In conjunction with its request, WVDEP submitted SIP 
revisions comprised of a maintenance plan for the Area, SO2 
emissions limits for the Mitchell Power Plant (Mitchell), and a 
modeling analysis demonstrating that the Mitchell limits provide for 
attainment in the Area.
    The Marshall Area was designated nonattainment for the 2010 
SO2 NAAQS in the first round of designations for the NAAQS 
published on August 5, 2013, which became effective on October 4, 2013. 
Under CAA section 191(a), attainment plan SIPs were due for areas 
designated nonattainment in round one 18 months after the effective 
date of designation, or April 4, 2015. Such SIPs were required by CAA 
section 192(a) to provide for attainment of the NAAQS as expeditiously 
as practicable, but no later than five years from the effective date of 
nonattainment designation, or October 4, 2018. West Virginia submitted 
an attainment SIP on March 17, 2017 (2017 SIP).\1\ The SIP addressed 
the required elements of an attainment SIP under CAA section 172(c), 
including an attainment demonstration that the State asserted showed 
attainment of the 2010 SO2 NAAQS, SO2 emissions 
limits for the Mitchell Power Plant, reasonably available control 
measures including reasonably available control technology (RACM/RACT), 
reasonable further progress (RFP), contingency measures, and 
certification that nonattainment new source review (NNSR) permit 
program requirements were being met. The 2017 SIP included a West 
Virginia Compliance Order on Consent (2016 consent order) that required 
Kentucky Power Company, the operator of American Electric Power's (AEP) 
Mitchell Power Plant, to comply with an SO2 maximum 
emissions limit from Units 1 and 2, of 6,175 pounds per hour (lbs/hr) 
on a 30-day rolling average, along with associated monitoring, 
recordkeeping, and reporting requirements, starting on January 1, 2017. 
The March 18, 2020 submittal requesting redesignation included a 
demonstration showing the area is in attainment, a maintenance plan, 
contingency measures, and a December 2, 2019 consent order (2019 
consent order) with Kentucky Power for Mitchell with lower 
SO2 emissions limits based on modeling with a changed stack 
height. Specifically, the 2019 consent order establishes an 
SO2 emissions limit for Mitchell Units 1 and 2 as a maximum 
of 3,149 lbs/hr on a 30-day rolling average, with compliance parameters 
including continuous emissions monitoring, recordkeeping including a 
calculation of the daily 30-day average, reporting of deviations from 
the requirements and semi-annual compliance reporting. Compliance with 
the limits and other provisions in the 2019 consent order were required 
starting on January 1, 2020.
---------------------------------------------------------------------------

    \1\ On March 18, 2016, EPA made a finding of failure to submit 
nonattainment area SIPs for 19 nonattainment areas, including the 
Marshall Area. EPA's letter to West Virginia dated September 27, 
2017 confirmed that West Virginia's March 17, 2017 submittal 
corrected the deficiency identified in the finding.
---------------------------------------------------------------------------

    Under CAA section 110(k)(2) through (4), EPA was required to take 
action to approve or disapprove West Virginia's 2017 SIP within 12 
months of determining it to be complete, but EPA did not take timely 
action. Subsequently, the Center for Biological Diversity and other 
plaintiffs (CBD) sued EPA in the U.S. District Court for the Northern 
District of California seeking a court order to compel EPA's action on 
West Virginia's 2017 SIP and several other SIPs for other areas in the 
nation. Center for Biological Diversity, et al., v. Wheeler, No. 4:18-
cv-03544-YGR. That lawsuit resulted in the plaintiffs and EPA agreeing 
to a schedule, entered by the court as an order, for EPA to take action 
on the covered SIPs by certain deadlines. The court ordered deadline 
for EPA to take action on West Virginia's 2017 SIP is October 30, 2020. 
The order also provided that if EPA issues a redesignation to 
attainment for any area for which the order required EPA action on a 
submitted SIP covered by the order, then EPA's obligation to take 
action on that SIP's CAA section 172(c) elements would be automatically 
terminated. As noted in the proposal, this action to redesignate the 
Marshall, West Virginia nonattainment area to attainment and approve 
the submitted maintenance plan with a lower emissions limit than that 
contained in the 2017 SIP submission will moot EPA's requirement under 
the consent order to take action on the 2017 SIP.

[[Page 67662]]

II. Summary of SIP Revision and EPA Analysis

    West Virginia's March 18, 2020 redesignation request included a 
maintenance plan providing for continued attainment of the 
SO2 NAAQS for a period of ten years following redesignation 
of the Area, SO2 emissions limits for Mitchell, and a 
modeling analysis demonstrating that the Mitchell limits provide for 
attainment in the Area. West Virginia also requested that EPA 
incorporate the 2019 consent order into the SIP.
    Under CAA section 107(d)(3)(E), there are five criteria which must 
be met before a nonattainment area may be redesignated to attainment:
    1. EPA has determined that the relevant NAAQS has been attained in 
the area;
    2. The applicable implementation plan has been fully approved by 
EPA under section 110(k);
    3. EPA has determined that improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from the 
SIP, Federal regulations, and other permanent and enforceable 
reductions;
    4. EPA has fully approved a maintenance plan, including a 
contingency plan, for the area under section 175A of the CAA; and,
    5. The state has met all applicable requirements for the area under 
section 110 and part D. The June 30, 2020 proposal (85 FR 39505) 
provides a detailed discussion of each requirement and EPA's analysis 
of how each requirement was met and is not repeated here. To summarize 
the analysis in the notice of proposed rulemaking (NPRM), EPA 
determined that the modeling submitted as part of the maintenance plan 
for the redesignation request submitted on March 18, 2020 shows that 
the Marshall Area is attaining the 2010 SO2 NAAQS, that the 
air quality improvement in the Area is attributable to permanent and 
enforceable emission reductions at Mitchell, that the maintenance plan 
assures that the area will continue to attain the 2010 SO2 
NAAQS, and that West Virginia has met all applicable requirements under 
section 110 (general SIP requirements) and part D of title I of the CAA 
(SIP requirements for nonattainment areas) for purposes of this 
redesignation. On this basis, EPA finds that West Virginia has 
adequately addressed the five basic components necessary to redesignate 
the Marshall Area to attainment.
    EPA received one adverse comment on the proposal. To review the 
full comment received, refer to the Docket for this rule, as identified 
in the ADDRESSES section of this document. A summary of the comment 
received, and EPA's response are provided below.

III. Public Comment and EPA Response

    Comment: The commenter asserts that EPA needs to do more to 
guarantee that the Mitchell plant will not violate the NAAQS. 
Specifically, the commenter expresses concern that the result of the 
modeling for Mitchell Plant of 196.2 micrograms per cubic meter 
([micro]g/m\3\) is too close to 196.4 [micro]g/m\3\ (corresponding to 
the level of the NAAQS, which is 75 parts per billion (ppb)), and 
therefore does not provide an adequate margin of safety to protect 
public health. Also, that EPA improperly ``rounded up'' to obtain the 
value of 196.4 [micro]g/m\3\, and that 196.4 [micro]g/m\3\ is not 
equivalent to the NAAQS, which is expressed as 75 ppb. In addition, the 
commenter believes that if the AERMOD model was run with a finer grid, 
the results would show NAAQS violations, and questions the margin of 
error of the AERMOD model. Finally, the commenter asks how EPA expects 
the modeled areas to maintain the NAAQS and suggests that a monitor is 
needed near the Mitchell plant.
    Response: EPA disagrees with the commenter's assertion that more is 
needed to guarantee that the Mitchell plant will not cause a violation 
of the NAAQS. First, the 2010 SO2 NAAQS was set at a level 
which already provides for an adequate margin of safety, as required by 
CAA Section 109(b)(1). Section 109(b)(1) defines a primary standard as 
one where ``the attainment and maintenance of which, in the judgment of 
the Administrator, based on [the air quality] criteria and allowing an 
adequate margin of safety, are requisite to protect the public 
health.'' CAA section 109(b)(1). As noted when EPA set the 
SO2 standard, ``[t]hus, in selecting primary standards that 
include an adequate margin of safety, the Administrator is seeking not 
only to prevent pollution levels that have been demonstrated to be 
harmful but also to prevent lower pollutant levels that may pose an 
unacceptable risk of harm, even if the risk is not precisely identified 
as to nature or degree.'' 75 FR 35520, 35521 (June 22, 2010). Because 
the NAAQS already includes a margin of safety, the fact that the 99th 
percentile of maximum daily one-hour modeled concentrations averaged 
over five years is below the NAAQS of 196.4 [micro]g/m\3\ ensures that 
public health is protected.
    EPA also disagrees that EPA improperly ``rounded up'' to develop 
the 196.4 [micro]g/m\3\ value that is equivalent to the 75 ppb NAAQS 
standard. The commenter does not identify the number that was 
supposedly rounded up, so EPA cannot directly address that claim. EPA 
recognized the need to identify and apply a consistent value expressed 
in [micro]g/m\3\ that EPA considers equivalent to 75 ppb, so in the 
Round 3 intended designations (82 FR 41903), published September 5, 
2017, EPA determined a value of 196.4 [micro]g/m\3\ (based on 
calculations using all available significant figures) to be equivalent 
to 75 ppb. To avoid confusion, EPA is expecting attainment and 
redesignation demonstrations to show achievement with concentrations at 
or below precisely 196.4 [micro]g/m\3\.\2\ EPA concludes that the 
Marshall modeling results of 196.2 [micro]g/m\3\ demonstrate that the 
area meets the standard. Because monitoring data was also available for 
this area, EPA analyzed that data, which showed a design value for the 
most recent three-year period (2017 through 2019) of 8 ppb. This 
monitored data, which is from the same previously violating monitor 
that caused this area to be designated nonattainment in 2013 based on 
2009-2011 data, provides further evidence that SO2 emissions 
concentrations have greatly improved in this area and supports EPA's 
redesignation of the area to attainment.
---------------------------------------------------------------------------

    \2\ While some Round 3 designation TSDs explained that this 
value was ``equivalent . . . using a 2.619 ug/m\3\ conversion 
factor'' (more precisely, using a conversion factor of approximately 
2.6187), in fact EPA here was determining the concentration value in 
ug/m\3\ that is to be considered equivalent to 75 ppb, rather than 
the precise value of the conversion factor.
---------------------------------------------------------------------------

    Regarding the commenter's question about the margin of error for 
AERMOD, EPA notes that AERMOD is a refined, steady-state (both 
emissions and meteorology over a 1-hour time step), multiple source, 
air-dispersion model that was originally promulgated by the EPA as part 
of its December 2005 revision to the Guideline on Air Quality Models, 
and is the preferred model to use for industrial sources in this type 
of air quality analysis. Furthermore, AERMOD predicts concentrations in 
many areas within the nonattainment area, rather than just at the 
monitor location, and therefore provides a more robust set of 
concentration data to assess attainment within the area than would be 
provided by a few SO2 monitors. EPA believes that the use of 
AERMOD in this Redesignation Request and Maintenance Plan was an 
appropriate choice regardless of any potential ``margin of error'' in 
the model.
    EPA also disagrees with the commenter's assertion that a finer 
modeling grid resolution should have been used. EPA's Guidance for the 
1-

[[Page 67663]]

hour SO2 Nonattainment SIP Submissions states, ``Receptor 
placement should be of sufficient density to provide resolution needed 
to detect significant gradients in the concentrations with receptors 
placed closer together near the source to detect local gradients and 
placed farther apart away from the source'' (page A-9).\3\ The area of 
maximum concentration in this modeling analysis had a 100 meter spaced 
receptor grid, which is the finest scale in the modeling domain. One of 
the reasons which would call for a finer grid is if there were large 
elevation differences between the facility and the area of maximum 
concentration, and that is not the case here. The facility is 0.67 
kilometers (km) from the modeled maximum concentration and the 
elevation differences are minimal.
---------------------------------------------------------------------------

    \3\ https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf.
---------------------------------------------------------------------------

    Regarding the commenter's question regarding how the Mitchell plant 
will maintain the standard, as stipulated by CAA 175A, the state must 
submit a maintenance plan which demonstrates how the source within the 
Marshall Area will provide for maintenance of the standard for the next 
ten years. Eight years after the redesignation, the state must submit a 
revised maintenance plan demonstrating that attainment will continue to 
be maintained for the ten years following the initial ten-year period. 
To address the possibility of future NAAQS violations, the maintenance 
plan must also contain contingency measures to assure prompt correction 
of any future violations. Specifically, the maintenance plan should 
address five requirements: (1) An attainment emissions inventory; (2) a 
maintenance demonstration; (3) a commitment for continued air quality 
monitoring; (4) the verification of continued attainment; and (5) a 
contingency plan.\4\ As detailed in the NPRM for this action, WV 
submitted a maintenance plan adequately addressing these five 
components necessary to maintain the SO2 NAAQS in the 
Marshall Area.
---------------------------------------------------------------------------

    \4\ See Memorandum from John Calcagni, Director, Air Quality 
Management Division, EPA, ``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' September 4, 1992.
---------------------------------------------------------------------------

IV. Final Action

    EPA is making a finding that the Marshall Area has attained the 
2010 SO2 NAAQS, as demonstrated by a modeling analysis 
reflecting a new SO2 emission limit for the Mitchell Power 
Plant and reflecting evidence (described in the notice of proposed 
rulemaking) that the Mitchell Power Plant is meeting this limit. EPA is 
also determining that West Virginia has met the planning requirements 
necessary for EPA to redesignate the Marshall Area from nonattainment 
to attainment of the 2010 SO2 NAAQS, including the 
requirements for permanent and enforceable measures, submission of an 
approvable maintenance plan that will assure attainment for ten years 
after redesignation, and that all other applicable CAA requirements 
under section 110 and part D, as discussed in the NPRM for this rule, 
have been met. Therefore, EPA is approving the Marshall Area 
redesignation request, maintenance plan, SO2 emission limits 
and associated compliance parameters for Mitchell in a 2019 consent 
order, and the modeling demonstration showing that the limits provide 
for maintenance. EPA is taking these actions under the CAA.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of West 
Virginia's 2010 SO2 Maintenance Plan for the Marshall Area 
and the Mitchell Power Plant Consent Order CO-SIP-C-2019-13 described 
in the amendments to 40 CFR part 52 set forth below. 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). Therefore, these 
materials have been approved by EPA for inclusion in the SIP, have been 
incorporated by reference by EPA into that plan, are fully Federally 
enforceable under sections 110 and 113 of the CAA as of the effective 
date of the final rule of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\5\
---------------------------------------------------------------------------

    \5\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the status of a geographical area 
and do not impose any additional regulatory requirements on sources 
beyond those required by state law. A redesignation to attainment does 
not in and of itself impose any new requirements, but rather results in 
the application of requirements contained in the CAA for areas that 
have been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the Act 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 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 these reasons, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action under Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

[[Page 67664]]

    The SIP is not approved to apply on any Indian reservation land as 
defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 28, 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 approving the redesignation of the West Virginia 
Marshall Nonattainment Area and associated maintenance plan may not be 
challenged later in proceedings to enforce its requirements. (See CAA 
section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting andrecordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting andrecordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 28, 2020.
Cosmo Servidio,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR parts 
52 and 81 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. Section 52.2520 is amended:
0
a. In the table in paragraph (d), by adding the entry ``Mitchell Power 
Plant'' at the end of the table; and
0
b. In the table in paragraph (e) by adding an entry for ``2010 Sulfur 
Dioxide Maintenance Plan--Marshall Area'' at the end of the table.
    The additions read as follows:


Sec.  52.2520   Identification of plan.

* * * * *
    (d) * * *


                                   EPA--Approved Source Specific Requirements
----------------------------------------------------------------------------------------------------------------
                                                                                                  Additional
                                     Permit/order or         State                               explanation/
           Source name             registration number  effective date   EPA approval date      citation at 40
                                                                                                   52.2565
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Mitchell Power Plant.............  Consent Order CO-        01/01/2020  10/26/2020, [insert  Established SO2
                                    SIP-C-2019-13.                       Federal Register     emission limit.
                                                                         citation].
----------------------------------------------------------------------------------------------------------------

    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory  SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
2010 Sulfur Dioxide Maintenance    Marshall Area              03/18/20  10/26/2020, [insert  Docket No. EPA-R03-
 Plan.                              (Clay, Franklin,                     Federal Register     OAR-2020-0171.
                                    and Washington Tax                   citation].
                                    Districts of
                                    Marshall County).
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2525 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.2525   Control strategy: Sulfur dioxide.

* * * * *
    (e) EPA approves the maintenance plan for Clay, Franklin, and 
Washington Tax Districts, West Virginia, submitted by the Department of 
Environmental Protection on March 18, 2020.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
4. The authority citation for part 81 continues to read as follows:

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

Subpart C--Section 107 Attainment Status Designations

0
5. In Sec.  81.349 amend the table ``West Virginia--2010 Sulfur Dioxide 
NAAQS [Primary]'' by revising the entry for ``Marshall, WV'' to read as 
follows:

[[Page 67665]]

Sec.  81.349   West Virginia.

* * * * *

                West Virginia--2010 Sulfur Dioxide NAAQS
                                [Primary]
------------------------------------------------------------------------
                                                Designation
      Designated area\1 3\       ---------------------------------------
                                     Date \2\              Type
------------------------------------------------------------------------
Marshall, WV:
    Marshall County (part)......      11/25/2020  Attainment.
Area consisting of Clay Tax
 District, Franklin Tax
 District, and Washington Tax
 District.
 
                              * * * * * * *
------------------------------------------------------------------------
\1\ Includes any Indian country in each county or area, unless otherwise
  specified. EPA is not determining the boundaries of any area of Indian
  country in this table, including any area of Indian country located in
  the larger designation area. The inclusion of any Indian country in
  the designation area is not a determination that the state has
  regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is April 9, 2018, unless otherwise noted.
\3\ Mineral County will be designated by December 31, 2020.

* * * * *
[FR Doc. 2020-21757 Filed 10-23-20; 8:45 am]
BILLING CODE 6560-50-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.