Air Plan Approval; West Virginia; 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the Steubenville-Weirton, OH-WV Area Comprising Brooke and Hancock Counties, 10018-10022 [2021-03027]

Download as PDF 10018 Federal Register / Vol. 86, No. 31 / Thursday, February 18, 2021 / Rules and Regulations Authority: 42 U.S.C. 7401 et seq. PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS § 52.220a * Subpart F—California Identification of plan—in part. * * (c) * * * * * 2. In § 52.220a, amend Table 1 to paragraph (c) by revising the entries for ‘‘94700’’ and ‘‘94701’’ to read as follows: ■ 1. The authority citation for part 52 continues to read as follows: ■ TABLE 1—EPA-APPROVED STATUTES AND STATE REGULATIONS 1 State citation State effective date Title/subject * * * EPA approval date * Additional explanation * * * Title 17 (Public Health), Division 3 (Air Resources), Chapter 1 (Air Resources Board); Subchapter 8.6 (Maximum Incremental Reactivity); Article 1 (Tables of Maximum Incremental Reactivity (MIR) Values) 94700 ................ MIR Values for Compounds ......... 1/1/2015 94701 ................ MIR Values for Hydrocarbon Solvents. 10/2/2010 2/18/2021, [Insert citation of publication]. 2/18/2021, [Insert citation of publication]. Submitted by CARB on December 1, 2016. Submitted by CARB on December 1, 2016. 1 Table 1 lists EPA-approved California statutes and regulations incorporated by reference in the applicable SIP. Table 2 of paragraph (c) lists approved California test procedures, test methods and specifications that are cited in certain regulations listed in table 1. Approved California statutes that are nonregulatory or quasi-regulatory are listed in paragraph (e). * * * * * BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2020–0195; FRL–10020– 08-Region 3] Air Plan Approval; West Virginia; 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the Steubenville-Weirton, OH-WV Area Comprising Brooke and Hancock Counties Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the West Virginia Department of Environmental Protection (WVDEP) on behalf of the State of West Virginia. This revision pertains to the West Virginia’s plan for maintaining the 1997 8-hour ozone national ambient air quality standard (NAAQS) for the West Virginia portion of the SteubenvilleWeirton, OH-WV area (Weirton Area), comprising Brooke and Hancock Counties. EPA is approving these revisions to the West Virginia SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: This final rule is effective on March 22, 2021. jbell on DSKJLSW7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:43 Feb 17, 2021 EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2020–0195. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https:// www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. FOR FURTHER INFORMATION CONTACT: Keila M. Paga´n-Incle, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814–2926. Ms. Paga´n-Incle can also be reached via electronic mail at paganincle.keila@epa.gov. SUPPLEMENTARY INFORMATION: ADDRESSES: [FR Doc. 2021–02900 Filed 2–17–21; 8:45 am] Jkt 253001 I. Background On June 29, 2020 (85 FR 38820), EPA published a notice of proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA proposed approval of West Virginia’s plan for maintaining the 1997 8-hour ozone NAAQS through June 13, 2027, in accordance with CAA section 175A. The formal SIP revision was submitted by WVDEP on December 10, 2019. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 II. Summary of SIP Revision and EPA Analysis On May 14, 2007 (72 FR 27060, effective June 13, 2007), EPA approved a redesignation request (and maintenance plan) from WVDEP for the Weirton Area. Per CAA section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years, and in South Coast Air Quality Management District v. EPA,1 the D.C. Circuit held that this requirement cannot be waived for areas, like the Weirton Area, that had been redesignated to attainment for the 1997 8-hour ozone NAAQS prior to revocation and that were designated attainment for the 2008 ozone NAAQS. CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan.2 WVDEP’s December 10, 2019 SIP submittal fulfills West 1 882 F.3d 1138 (D.C. Cir. 2018). for Processing Requests to Redesignate Areas to Attainment,’’ Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni Memo). 2 ‘‘Procedures E:\FR\FM\18FER1.SGM 18FER1 Federal Register / Vol. 86, No. 31 / Thursday, February 18, 2021 / Rules and Regulations Virginia’s obligation to submit a second maintenance plan and addresses each of the five necessary elements. As discussed in the June 29, 2020 NPRM, consistent with longstanding EPA guidance,3 areas that meet certain criteria may be eligible to submit a limited maintenance plan (LMP) to satisfy one of the requirements of CAA section 175A. Specifically, states may meet CAA section 175A’s requirements to ‘‘provide for maintenance’’ by demonstrating that the area’s design value 4 is well below the NAAQS and that it has had historical stability attaining the NAAQS. EPA evaluated WVDEP’s December 10, 2019 submittal for consistency with all applicable EPA guidance and CAA requirements. EPA found that the submittal met CAA section 175A and all CAA requirements, and proposed approval of the LMP for the Weirton Area, comprising Brooke and Hancock Counties, as a revision to the West Virginia SIP. The effect of this action makes certain commitments related to the maintenance of the 1997 8-hour ozone NAAQS federally enforceable as part of the West Virginia SIP. Other specific requirements of WVDEP’s December 10, 2019 submittal and the rationale for EPA’s proposed action are explained in the NPRM and will not be restated here. III. EPA’s Response to Comments Received EPA received five sets of relevant comments on the June 29, 2020 NPRM, two of which were exact duplicates. All comments received are in the docket for this rulemaking action. A summary of the comments and EPA’s responses are provided herein. Comment 1 The commenter requests that EPA disapprove West Virginia’s LMP ‘‘because it fails to show maintenance of the standard for 10 years and it fails to provide for the protection of health because of the lack of enforcement’’ and also because of a ‘‘lack of reductions in the Steubenville area.’’ The commenter jbell on DSKJLSW7X2PROD with RULES 3 See ‘‘Limited Maintenance Plan Option for Nonclassifiable Ozone Nonattainment Areas’’ from Sally L. Shaver, Office of Air Quality Planning and Standards (OAQPS), dated November 16, 1994; ‘‘Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas’’ from Joseph Paisie, OAQPS, dated October 6, 1995; and ‘‘Limited Maintenance Plan Option for Moderate PM10 Nonattainment Areas’’ from Lydia Wegman, OAQPS, dated August 9, 2001. 4 The ozone design value for a monitoring site is the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations. The design value for an ozone nonattainment area is the highest design value of any monitoring site in the area. VerDate Sep<11>2014 16:05 Feb 17, 2021 Jkt 253001 also requests that EPA disapprove the LMP because EPA has not provided information with regards to ‘‘all of the areas the agency proposes to monitor.’’ Response 1 EPA disagrees that the LMP should be disapproved based on the reasons given by the commenter. EPA has determined that the LMP adequately demonstrates compliance for the second 10 year period in accordance with CAA section 175A and EPA’s longstanding guidance that establishes the five elements that EPA has determined will ensure maintenance of the relevant NAAQS for a period of 10 years: (1) An attainment emissions inventory; (2) maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continue attainment; and (5) a contingency plan.5 EPA determined that West Virginia’s second maintenance plan addresses all the required elements of an approvable maintenance plan. Although the commenter asserts that the LMP fails to demonstrate maintenance of the NAAQS, the commenter does not offer any data to contradict the data that EPA and West Virginia relied upon, nor does the commenter explain why the data that EPA and West Virginia relied upon does not adequately demonstrate maintenance of the NAAQS. See, e.g., International Fabricare Institute v. E.P.A. 6 (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 with no accompanying data). Because this LMP demonstrates that the Steubenville-Weirton Area is maintaining the 1997 8-hour ozone NAAQS and will maintain it for the duration of this LMP based on its historic and current level of emissions, there is no indication that the Weirton Area suffers from a ‘‘lack of reductions.’’ The Area is required to obtain additional emissions reductions from the contingency measures included in its plan, but those measures will only be required to be implemented if triggered by events indicating that the Area’s ability to maintain the NAAQS is threatened. EPA’s approval of this LMP under the authority of CAA 110 confers upon EPA the authority to enforce the provisions of this plan, if necessary, in Federal court. Therefore, EPA disagrees 5 ‘‘Procedures for Processing Requests to Redesignate Areas to Attainment,’’ Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni Memo). 6 972 F.2d 384 (D.C. Cir. 1992). PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 10019 with the commenter that this LMP does not demonstrate maintenance of the NAAQS and is not enforceable. EPA also disagrees that the LMP should be disapproved because EPA has not provided information regarding ‘‘all of the areas the agency proposes to monitor.’’ West Virginia currently has an EPA approved monitoring network to measure compliance with the 8-hour ozone NAAQS (49 FR 18094, effective June 26, 1984). West Virginia is required to have this monitoring network for at least the duration of the second maintenance plan 7 and cannot change it without EPA’s approval, see 40 CFR 58.14(a). The monitors are currently located in Hancock County, West Virginia and in Jefferson County, Ohio.8 If the monitoring locations need to change, EPA will approve those changes only if the new locations will continue to monitor compliance with the 8-hour ozone NAAQS for the Weirton Area, see 40 CFR 58.10(a). This information was available to the public through EPA’s prior rulemakings cited previously in this document, and therefore there is no lack of information for the public regarding ‘‘all of the areas the agency proposes to monitor’’ regarding the Weirton Area. The commenter therefore provides no basis for EPA to change its approval of the LMP for the Weirton Area. Comment 2 The commenter claims that the LMP does not ‘‘address the critical public health threats posed by high levels of toxic air pollution’’ in the Weirton Area. The commenter alleges that the LMP should not be approved based on a letter that the commenter states was submitted by the American Lung Association (ALA) to Ohio EPA, in which the ALA identified the ‘‘Steubenville Plan’’ to be ‘‘shortsighted, and could endanger the health and safety of thousands of residents in the nonattainment area.’’ Further, the commenter also contends that the LMP was approved ‘‘without an Environmental Effects Statement and an 7 See ‘‘Limited Maintenance Plan Option for Nonclassifiable Ozone Nonattainment Areas’’ from Sally L. Shaver, Office of Air Quality Planning and Standards (OAQPS), dated November 16, 1994; ‘‘Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas’’ from Joseph Paisie, OAQPS, dated October 6, 1995; and ‘‘Limited Maintenance Plan Option for Moderate PM10 Nonattainment Areas’’ from Lydia Wegman, OAQPS, dated August 9, 2001. 8 See 71 FR 57905 (October 2, 2006) and the following documents included in this rule’s docket: West Virginia’s ‘‘2020 Ambient Air Monitoring Annual Network Plan and SO2 Data Requirement Rule Annual Report’’ and Appendix D of Ohio EPA’s ‘‘2020–2021 Ohio EPA Air Monitoring Network Plan.’’ E:\FR\FM\18FER1.SGM 18FER1 10020 Federal Register / Vol. 86, No. 31 / Thursday, February 18, 2021 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES environmental review,’’ and EPA cannot approve ‘‘until a statement and review are completed and proposed to the public at large.’’ Response 2 The commenter has misapprehended the purpose of West Virginia’s second maintenance plan for the 1997 8-hour ozone NAAQS and the criteria for EPA’s approval of that plan. As stated in the NPRM, on December 10, 2019, West Virginia submitted a SIP revision for a second maintenance plan for the 1997 8hour ozone NAAQS which focuses on meeting requirements under CAA section 175A, to which EPA has published longstanding guidance that provides the necessary criteria for an approvable maintenance plan. The commenter states that EPA should disapprove the LMP based on a letter submitted to Ohio EPA by the ALA. Neither the commenter nor the ALA has submitted that letter to EPA, and whether the letter is relevant to the LMP or some other ‘‘Steubenville Plan’’ that is not before EPA is unclear. To the extent that the comment in general terms asserts that the LMP should not be approved due to air quality issues in Steubenville, EPA relies on the analysis in the NPRM, and its response to Comment 1, that this LMP meets the criteria for approval as it adequately demonstrates that the area will maintain the relevant NAAQS for the duration of the plan, contains all required elements of an approvable plan, and the commenter does not offer any data to contradict the data that EPA and West Virginia relied upon, nor does the commenter explain why the data that EPA and West Virginia does not adequately demonstrate maintenance of the NAAQS. See, e.g., International Fabricare Institute v. E.P.A.9. Therefore, EPA disagrees this comment provides a basis for disapproving this LMP. The commenter additionally states that West Virginia’s LMP was approved ‘‘without an Environmental Effects Statement and an environmental review.’’ EPA is unfamiliar with these terms in respect to rulemaking conducted under the Federal Administrative Procedures Act (APA),10 the CAA or its implementing regulations relevant to this rulemaking. To the extent the commenter appears to be alleging a defect in West Virginia’s process for developing and approving this LMP West Virginia submitted to EPA ‘‘[e]vidence that the State followed all of the procedural requirements of the State’s laws and constitution in 9 972 10 5 F.2d 384 (D.C. Cir. 1992). U.S.C. 551 et seq. VerDate Sep<11>2014 16:05 Feb 17, 2021 Jkt 253001 conducting and completing the adoption/issuance of the plan,11 which is in the docket for this rulemaking.’’ 12 To the extent that the comment is directed at EPA’s rulemaking on this LMP, EPA has followed all requirements of the APA, the CAA, and regulations thereunder relevant to this rulemaking. There is no requirement under the APA, the CAA, or its implementing regulations for anything or process called an ‘‘Environmental Effect statement’’ or ‘‘environmental review.’’ This comment therefore provides no basis for EPA to disapprove this LMP. Comment 3 The commenter asserts that the LMP should not be approved because of EPA’s reliance on the Air Quality Modeling Technical Support Document (TSD) that was developed for EPA’s regional transport rulemaking. The commenter contends that: (1) The TSD shows maintenance of the area for three years and not 10 years; (2) the modeling was performed for transport purposes across state lines and not to show maintenance of the NAAQS; (3) the modeling was performed for the 2008 and 2015 ozone NAAQS and not the 1997 ozone NAAQS; (4) the TSD has been ‘‘highly contested’’ by environmental groups and that ‘‘other states contend EPA’s modeling as flawed;’’ and (5) the TSD does not address a recent court decision that threw out EPA’s modeling ‘‘because it modeled to the wrong attainment year. . . .’’ The commenter asserts that the four specific issues it raises with respect to the modeling means that the TSD is ‘‘flawed, illegal, [and] is being used improperly for the wrong purpose. . . .’’ The commenter states that ‘‘EPA must retract its reliance on the modeling for the purposes of this maintenance plan and must find some other way of showing continued maintenance of the 1997 ozone NAAQS.’’ Response 3 EPA does not agree with the commenter that approval of West Virginia’s second maintenance plan is not appropriate. The commenter raises concerns about West Virginia and EPA’s citation of Air Quality Modeling TSD, 11 40 CFR part 51, Appendix V, 2.1(e). ‘‘Weirton WV State Submittal’’ and ‘‘Weirton, WV Completeness Letter’’ of WVDEP’s December 10, 2019 submittal. The ‘‘Weirton WV State Submittal’’ states that the SIP revision includes documentation that proper administrative procedural requirements have been followed. In addition, the ‘‘Weirton, WV Completeness Letter,’’ certifies that EPA has determined that the submittal is administratively and technically complete and EPA will proceed to review the SIP submission. 12 See PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 but the commenter ignores that EPA’s primary basis for finding that West Virginia has provided for maintenance of the 1997 8-hour ozone NAAQS in the Weirton Area is the State’s demonstration that the criteria for a LMP has been met. See 85 FR 38820, June 29, 2020. Specifically, as stated in the NPRM, for decades EPA has interpreted the provision in CAA section 175A that requires states to ‘‘provide for maintenance’’ of the NAAQS to be satisfied where areas demonstrate that design values are and have been stable and well below the NAAQS—e.g., at 85% of the standard, or in this case at or below 0.071 parts per million (ppm). EPA calls such demonstration a ‘‘limited maintenance plan.’’ The modeling cited by the commenter was referenced in West Virginia’s submission and as part of EPA’s proposed approval as supplementary supporting information, and we do not agree that the commenter’s concerns about relying on that modeling are warranted. The commenter contends that the modeling only goes out three years (to 2023) and it needs to go out to 10 years, and therefore may not be relied upon. However, the Air Quality Modeling TSD was only relied upon by EPA to provide additional support to indicate that the area is expected to continue to attain the NAAQS during the relevant period. As noted previously, West Virginia primarily met the requirement to demonstrate maintenance of the NAAQS by showing that they met the criteria for an LMP, rather than by modeling or projecting emissions inventories out to a future year. We also do not agree that the State is required to demonstrate maintenance for 10 years; CAA section 175A requires the State to demonstrate maintenance through the 20th year after the area is redesignated, which in this case is 2027. We also disagree with the commenter’s contention that because the Air Quality Modeling TSD was performed to analyze the transport of pollution across state lines with respect to other ozone NAAQS, it cannot be relied upon in this action. We acknowledge that the Air Quality Modeling TSD at issue was performed as part of EPA’s efforts to address interstate transport pollution under CAA section 110(a)(2)(D)(i)(I). However, the purpose of the Air Quality Modeling TSD is fully in keeping with the question of whether West Virginia is expected to maintain the NAAQS. The Air Quality Modeling TSD identifies which air quality monitors in the United States are projected to have problems attaining or maintaining the 2008 and E:\FR\FM\18FER1.SGM 18FER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 86, No. 31 / Thursday, February 18, 2021 / Rules and Regulations 2015 NAAQS for ozone in 2023. Because the Air Quality Modeling TSD results simply provide projected ozone concentration design values, which are expressed as three-year averages of the annual fourth high 8-hour daily maximum ozone concentrations, the modeling results are useful for analyzing attainment and maintenance of any of the ozone NAAQS that are measured using this averaging time; in this case, the 1997, 2008 and 2015 ozone NAAQS. The only difference between the three standards is stringency. Taking the Weirton Area’s most recent certified design value as of the proposal (i.e., for the years 2016– 2018), the area’s design value was 0.065 ppm. What we can discern from this is that the Weirton Area is meeting the 1997 8-hour ozone NAAQS of 0.080 ppm, the 2008 ozone NAAQS of 0.075 ppm, and the 2015 ozone NAAQS of 0.070 ppm. The same principle applies to projected design values from the Air Quality Modeling TSD. In this case, the interstate transport modeling indicated that in 2023, the Weirton Area’s design value is projected to be 0.060 ppm, which is again, well below all three standards. The fact that the Air Quality Modeling TSD was performed to indicate whether the area will have problems attaining or maintaining the 2015 ozone NAAQS (i.e., 0.070 ppm) does not make the modeling less useful for determining whether the area will also meet the less stringent revoked 1997 standard (i.e., 0.080 ppm). The commenter asserts that many groups have criticized EPA’s transport modeling, alleging that the agency used improper emissions inventories, incorrect contribution thresholds, wrong modeling years, or that EPA has not accounted for local situations or reductions that occurred after the inventories were established. The commenter also alleges that EPA should not rely on its modeling because it ‘‘fails to stand up to the recent court decisions,’’ citing the Wisconsin v. EPA D.C. Circuit decision. EPA disagrees that the existence of criticisms of the agency’s Air Quality Modeling TSD render it unreliable, and we also do not agree that anything in recent court decisions, including Wisconsin v. EPA, suggests that EPA’s Air Quality Modeling TSD is technically flawed. We acknowledge that the source apportionment air quality modeling runs cited by the commenter have been at issue in various legal challenges to EPA actions, including the Wisconsin v. EPA case.13 However, in that case, the only flaw in EPA’s Air Quality Modeling TSD identified by the D.C. Circuit was the fact that its analytic year did not align with the attainment date found in CAA section 181.14 Contrary to the commenter’s suggestion, the D.C. Circuit upheld EPA’s Air Quality Modeling TSD with respect to the many technical challenges raised by petitioners in the Wisconsin case.15 We therefore think reliance on the interstate transport Air Quality Modeling TSD as supplemental support for showing that the Weirton Area will maintain the 1997 8-hour ozone NAAQS through the end of its 20th-year maintenance period is appropriate. Comment 4 The commenter asserts that EPA should disapprove this maintenance plan because EPA should not allow states to rely on emission programs such as the Cross-State Air Pollution Rule (CSAPR) to demonstrate maintenance for the 1997 ozone NAAQS. The commenter alleges that ‘‘the CSAPR and CSAPR Update and CSAPR Close-out rules were vacated entirely’’ by multiple courts and ‘‘are now illegal programs providing no legally enforceable emission reductions to any states formerly covered by the rules.’’ The commenter also asserts that nothing restricts ‘‘big coal and gas power plants from emitting way beyond there (sic) restricted amounts.’’ The commenter does allow that ‘‘If EPA can show that continued maintenance without these rules is possible for the next 10 years then that would be OK but as the plan stands it relies on these reductions and must be disapproved.’’ Response 4 The commenter has misapprehended the factual circumstances regarding these interstate transport rules. Every rule cited by the commenter that achieves emission reductions from electric generating units (EGUs or power plants)—i.e., the Cross-State Air Pollution Rule and the CSAPR Update— remains in place and continues to ensure emission reductions of nitrogen oxides (NOX) and sulfur dioxide (SO2). CSAPR began implementation in 2015 (after it was largely upheld by the Supreme Court) and the CSAPR Update began implementation in 2017. The latter rule was remanded to EPA to address the analytic year issues discussed in the prior comment and response, but the rule remains fully in effect. The commenter is correct that the D.C. Circuit vacated the CSAPR closeout, but we note that that rule was only 14 Id. 13 938 F.3d 303 (D.C. Cir. 2019). VerDate Sep<11>2014 16:05 Feb 17, 2021 at 313. 15 Wisconsin, Jkt 253001 PO 00000 Frm 00011 938 F.3d at 323–331. Fmt 4700 Sfmt 4700 10021 a determination that no further emission reductions were required to address interstate transport obligations for the 2008 ozone NAAQS; the rule did not itself establish any emission reductions. We therefore disagree that the legal status of these rules presents any obstacle to EPA’s approval of West Virginia’s submission. IV. Final Action EPA is approving the 1997 8-hour ozone NAAQS limited maintenance plan for the Steubenville-Weirton, OHWV area (Weirton Area), comprising Brooke and Hancock Counties as a revision to the West Virginia SIP. V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866; • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); E:\FR\FM\18FER1.SGM 18FER1 10022 Federal Register / Vol. 86, No. 31 / Thursday, February 18, 2021 / Rules and Regulations • 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 C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 19, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to West Virginia’s limited maintenance plan for the Steubenville-Weirton, OH–WV area (Weirton Area), comprising Brooke and Hancock Counties may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) Name of non-regulatory SIP revision Applicable geographic area * * 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the SteubenvilleWeirton, OH-WV Area Comprising Brooke and Hancock Counties. * * Steubenville-Weirton, OH–WV Area Comprising Brooke and Hancock Counties. [FR Doc. 2021–03027 Filed 2–17–21; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R10–OAR–2019–0573, FRL–10018– 79–Region 10] Air Plan Approval; Washington; Infrastructure Requirements for the 2010 Sulfur Dioxide and 2015 Ozone Standards jbell on DSKJLSW7X2PROD with RULES 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). Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: Whenever the Environmental Protection Agency (EPA) promulgates a SUMMARY: VerDate Sep<11>2014 16:05 Feb 17, 2021 Jkt 253001 State submittal date 12/10/19 Frm 00012 Fmt 4700 Sfmt 4700 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Volatile organic compounds. Dated: February 8, 2021. Diana Esher, Acting Regional Administrator, Region III. For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows: PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 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, the table in paragraph (e) is amended by adding the entry ‘‘1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the Steubenville-Weirton, OH-WV Area Comprising Brooke and Hancock Counties’’ at the end of the table to read as follows: ■ § 52.2520 * Identification of plan. * * (e) * * * EPA approval date * * 2/18/2021, [insert Federal Register citation]. new or revised National Ambient Air Quality Standard (NAAQS), the Clean Air Act requires each state to make a State Implementation Plan (SIP) submission to establish that its SIP provides for the implementation, maintenance, and enforcement of the revised NAAQS. This type of SIP submission is commonly referred to as an infrastructure SIP submission. The EPA is approving the State of Washington’s September 30, 2019 and April 3, 2020, SIP submissions as meeting specific infrastructure requirements for the 2010 sulfur dioxide and 2015 ozone NAAQS. DATES: This final rule is effective March 22, 2021. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–R10–OAR–2019–0573. All PO 00000 List of Subjects in 40 CFR Part 52 * * Additional explanation * 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., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and is publicly available only in hard copy form. Publicly available docket materials are available at https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. Jeff Hunt, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (206) 553–0256, or hunt.jeff@epa.gov. FOR FURTHER INFORMATION CONTACT: E:\FR\FM\18FER1.SGM 18FER1

Agencies

[Federal Register Volume 86, Number 31 (Thursday, February 18, 2021)]
[Rules and Regulations]
[Pages 10018-10022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03027]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0195; FRL-10020-08-Region 3]


Air Plan Approval; West Virginia; 1997 8-Hour Ozone National 
Ambient Air Quality Standard Second Maintenance Plan for the West 
Virginia Portion of the Steubenville-Weirton, OH-WV Area Comprising 
Brooke and Hancock Counties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the West Virginia 
Department of Environmental Protection (WVDEP) on behalf of the State 
of West Virginia. This revision pertains to the West Virginia's plan 
for maintaining the 1997 8-hour ozone national ambient air quality 
standard (NAAQS) for the West Virginia portion of the Steubenville-
Weirton, OH-WV area (Weirton Area), comprising Brooke and Hancock 
Counties. EPA is approving these revisions to the West Virginia SIP in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on March 22, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0195. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
https://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Keila M. Pag[aacute]n-Incle, Planning 
& Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2926. Ms. Pag[aacute]n-Incle can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 29, 2020 (85 FR 38820), EPA published a notice of proposed 
rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA 
proposed approval of West Virginia's plan for maintaining the 1997 8-
hour ozone NAAQS through June 13, 2027, in accordance with CAA section 
175A. The formal SIP revision was submitted by WVDEP on December 10, 
2019.

II. Summary of SIP Revision and EPA Analysis

    On May 14, 2007 (72 FR 27060, effective June 13, 2007), EPA 
approved a redesignation request (and maintenance plan) from WVDEP for 
the Weirton Area. Per CAA section 175A(b), at the end of the eighth 
year after the effective date of the redesignation, the state must also 
submit a second maintenance plan to ensure ongoing maintenance of the 
standard for an additional 10 years, and in South Coast Air Quality 
Management District v. EPA,\1\ the D.C. Circuit held that this 
requirement cannot be waived for areas, like the Weirton Area, that had 
been redesignated to attainment for the 1997 8-hour ozone NAAQS prior 
to revocation and that were designated attainment for the 2008 ozone 
NAAQS. CAA section 175A sets forth the criteria for adequate 
maintenance plans. In addition, EPA has published longstanding guidance 
that provides further insight on the content of an approvable 
maintenance plan, explaining that a maintenance plan should address 
five elements: (1) An attainment emissions inventory; (2) a maintenance 
demonstration; (3) a commitment for continued air quality monitoring; 
(4) a process for verification of continued attainment; and (5) a 
contingency plan.\2\ WVDEP's December 10, 2019 SIP submittal fulfills 
West

[[Page 10019]]

Virginia's obligation to submit a second maintenance plan and addresses 
each of the five necessary elements.
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    \1\ 882 F.3d 1138 (D.C. Cir. 2018).
    \2\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
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    As discussed in the June 29, 2020 NPRM, consistent with 
longstanding EPA guidance,\3\ areas that meet certain criteria may be 
eligible to submit a limited maintenance plan (LMP) to satisfy one of 
the requirements of CAA section 175A. Specifically, states may meet CAA 
section 175A's requirements to ``provide for maintenance'' by 
demonstrating that the area's design value \4\ is well below the NAAQS 
and that it has had historical stability attaining the NAAQS. EPA 
evaluated WVDEP's December 10, 2019 submittal for consistency with all 
applicable EPA guidance and CAA requirements. EPA found that the 
submittal met CAA section 175A and all CAA requirements, and proposed 
approval of the LMP for the Weirton Area, comprising Brooke and Hancock 
Counties, as a revision to the West Virginia SIP. The effect of this 
action makes certain commitments related to the maintenance of the 1997 
8-hour ozone NAAQS federally enforceable as part of the West Virginia 
SIP.
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    \3\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \4\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
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    Other specific requirements of WVDEP's December 10, 2019 submittal 
and the rationale for EPA's proposed action are explained in the NPRM 
and will not be restated here.

III. EPA's Response to Comments Received

    EPA received five sets of relevant comments on the June 29, 2020 
NPRM, two of which were exact duplicates. All comments received are in 
the docket for this rulemaking action. A summary of the comments and 
EPA's responses are provided herein.

Comment 1

    The commenter requests that EPA disapprove West Virginia's LMP 
``because it fails to show maintenance of the standard for 10 years and 
it fails to provide for the protection of health because of the lack of 
enforcement'' and also because of a ``lack of reductions in the 
Steubenville area.'' The commenter also requests that EPA disapprove 
the LMP because EPA has not provided information with regards to ``all 
of the areas the agency proposes to monitor.''

Response 1

    EPA disagrees that the LMP should be disapproved based on the 
reasons given by the commenter. EPA has determined that the LMP 
adequately demonstrates compliance for the second 10 year period in 
accordance with CAA section 175A and EPA's longstanding guidance that 
establishes the five elements that EPA has determined will ensure 
maintenance of the relevant NAAQS for a period of 10 years: (1) An 
attainment emissions inventory; (2) maintenance demonstration; (3) a 
commitment for continued air quality monitoring; (4) a process for 
verification of continue attainment; and (5) a contingency plan.\5\ EPA 
determined that West Virginia's second maintenance plan addresses all 
the required elements of an approvable maintenance plan. Although the 
commenter asserts that the LMP fails to demonstrate maintenance of the 
NAAQS, the commenter does not offer any data to contradict the data 
that EPA and West Virginia relied upon, nor does the commenter explain 
why the data that EPA and West Virginia relied upon does not adequately 
demonstrate maintenance of the NAAQS. See, e.g., International 
Fabricare Institute v. E.P.A. \6\ (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 with no 
accompanying data). Because this LMP demonstrates that the 
Steubenville-Weirton Area is maintaining the 1997 8-hour ozone NAAQS 
and will maintain it for the duration of this LMP based on its historic 
and current level of emissions, there is no indication that the Weirton 
Area suffers from a ``lack of reductions.'' The Area is required to 
obtain additional emissions reductions from the contingency measures 
included in its plan, but those measures will only be required to be 
implemented if triggered by events indicating that the Area's ability 
to maintain the NAAQS is threatened. EPA's approval of this LMP under 
the authority of CAA 110 confers upon EPA the authority to enforce the 
provisions of this plan, if necessary, in Federal court. Therefore, EPA 
disagrees with the commenter that this LMP does not demonstrate 
maintenance of the NAAQS and is not enforceable.
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    \5\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
    \6\ 972 F.2d 384 (D.C. Cir. 1992).
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    EPA also disagrees that the LMP should be disapproved because EPA 
has not provided information regarding ``all of the areas the agency 
proposes to monitor.'' West Virginia currently has an EPA approved 
monitoring network to measure compliance with the 8-hour ozone NAAQS 
(49 FR 18094, effective June 26, 1984). West Virginia is required to 
have this monitoring network for at least the duration of the second 
maintenance plan \7\ and cannot change it without EPA's approval, see 
40 CFR 58.14(a). The monitors are currently located in Hancock County, 
West Virginia and in Jefferson County, Ohio.\8\ If the monitoring 
locations need to change, EPA will approve those changes only if the 
new locations will continue to monitor compliance with the 8-hour ozone 
NAAQS for the Weirton Area, see 40 CFR 58.10(a). This information was 
available to the public through EPA's prior rulemakings cited 
previously in this document, and therefore there is no lack of 
information for the public regarding ``all of the areas the agency 
proposes to monitor'' regarding the Weirton Area. The commenter 
therefore provides no basis for EPA to change its approval of the LMP 
for the Weirton Area.
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    \7\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \8\ See 71 FR 57905 (October 2, 2006) and the following 
documents included in this rule's docket: West Virginia's ``2020 
Ambient Air Monitoring Annual Network Plan and SO2 Data 
Requirement Rule Annual Report'' and Appendix D of Ohio EPA's 
``2020-2021 Ohio EPA Air Monitoring Network Plan.''
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Comment 2

    The commenter claims that the LMP does not ``address the critical 
public health threats posed by high levels of toxic air pollution'' in 
the Weirton Area. The commenter alleges that the LMP should not be 
approved based on a letter that the commenter states was submitted by 
the American Lung Association (ALA) to Ohio EPA, in which the ALA 
identified the ``Steubenville Plan'' to be ``short-sighted, and could 
endanger the health and safety of thousands of residents in the 
nonattainment area.'' Further, the commenter also contends that the LMP 
was approved ``without an Environmental Effects Statement and an

[[Page 10020]]

environmental review,'' and EPA cannot approve ``until a statement and 
review are completed and proposed to the public at large.''

Response 2

    The commenter has misapprehended the purpose of West Virginia's 
second maintenance plan for the 1997 8-hour ozone NAAQS and the 
criteria for EPA's approval of that plan. As stated in the NPRM, on 
December 10, 2019, West Virginia submitted a SIP revision for a second 
maintenance plan for the 1997 8-hour ozone NAAQS which focuses on 
meeting requirements under CAA section 175A, to which EPA has published 
longstanding guidance that provides the necessary criteria for an 
approvable maintenance plan.
    The commenter states that EPA should disapprove the LMP based on a 
letter submitted to Ohio EPA by the ALA. Neither the commenter nor the 
ALA has submitted that letter to EPA, and whether the letter is 
relevant to the LMP or some other ``Steubenville Plan'' that is not 
before EPA is unclear. To the extent that the comment in general terms 
asserts that the LMP should not be approved due to air quality issues 
in Steubenville, EPA relies on the analysis in the NPRM, and its 
response to Comment 1, that this LMP meets the criteria for approval as 
it adequately demonstrates that the area will maintain the relevant 
NAAQS for the duration of the plan, contains all required elements of 
an approvable plan, and the commenter does not offer any data to 
contradict the data that EPA and West Virginia relied upon, nor does 
the commenter explain why the data that EPA and West Virginia does not 
adequately demonstrate maintenance of the NAAQS. See, e.g., 
International Fabricare Institute v. E.P.A.\9\. Therefore, EPA 
disagrees this comment provides a basis for disapproving this LMP.
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    \9\ 972 F.2d 384 (D.C. Cir. 1992).
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    The commenter additionally states that West Virginia's LMP was 
approved ``without an Environmental Effects Statement and an 
environmental review.'' EPA is unfamiliar with these terms in respect 
to rulemaking conducted under the Federal Administrative Procedures Act 
(APA),\10\ the CAA or its implementing regulations relevant to this 
rulemaking. To the extent the commenter appears to be alleging a defect 
in West Virginia's process for developing and approving this LMP West 
Virginia submitted to EPA ``[e]vidence that the State followed all of 
the procedural requirements of the State's laws and constitution in 
conducting and completing the adoption/issuance of the plan,\11\ which 
is in the docket for this rulemaking.'' \12\ To the extent that the 
comment is directed at EPA's rulemaking on this LMP, EPA has followed 
all requirements of the APA, the CAA, and regulations thereunder 
relevant to this rulemaking. There is no requirement under the APA, the 
CAA, or its implementing regulations for anything or process called an 
``Environmental Effect statement'' or ``environmental review.'' This 
comment therefore provides no basis for EPA to disapprove this LMP.
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    \10\ 5 U.S.C. 551 et seq.
    \11\ 40 CFR part 51, Appendix V, 2.1(e).
    \12\ See ``Weirton WV State Submittal'' and ``Weirton, WV 
Completeness Letter'' of WVDEP's December 10, 2019 submittal. The 
``Weirton WV State Submittal'' states that the SIP revision includes 
documentation that proper administrative procedural requirements 
have been followed. In addition, the ``Weirton, WV Completeness 
Letter,'' certifies that EPA has determined that the submittal is 
administratively and technically complete and EPA will proceed to 
review the SIP submission.
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Comment 3

    The commenter asserts that the LMP should not be approved because 
of EPA's reliance on the Air Quality Modeling Technical Support 
Document (TSD) that was developed for EPA's regional transport 
rulemaking. The commenter contends that: (1) The TSD shows maintenance 
of the area for three years and not 10 years; (2) the modeling was 
performed for transport purposes across state lines and not to show 
maintenance of the NAAQS; (3) the modeling was performed for the 2008 
and 2015 ozone NAAQS and not the 1997 ozone NAAQS; (4) the TSD has been 
``highly contested'' by environmental groups and that ``other states 
contend EPA's modeling as flawed;'' and (5) the TSD does not address a 
recent court decision that threw out EPA's modeling ``because it 
modeled to the wrong attainment year. . . .'' The commenter asserts 
that the four specific issues it raises with respect to the modeling 
means that the TSD is ``flawed, illegal, [and] is being used improperly 
for the wrong purpose. . . .'' The commenter states that ``EPA must 
retract its reliance on the modeling for the purposes of this 
maintenance plan and must find some other way of showing continued 
maintenance of the 1997 ozone NAAQS.''

Response 3

    EPA does not agree with the commenter that approval of West 
Virginia's second maintenance plan is not appropriate. The commenter 
raises concerns about West Virginia and EPA's citation of Air Quality 
Modeling TSD, but the commenter ignores that EPA's primary basis for 
finding that West Virginia has provided for maintenance of the 1997 8-
hour ozone NAAQS in the Weirton Area is the State's demonstration that 
the criteria for a LMP has been met. See 85 FR 38820, June 29, 2020. 
Specifically, as stated in the NPRM, for decades EPA has interpreted 
the provision in CAA section 175A that requires states to ``provide for 
maintenance'' of the NAAQS to be satisfied where areas demonstrate that 
design values are and have been stable and well below the NAAQS--e.g., 
at 85% of the standard, or in this case at or below 0.071 parts per 
million (ppm). EPA calls such demonstration a ``limited maintenance 
plan.''
    The modeling cited by the commenter was referenced in West 
Virginia's submission and as part of EPA's proposed approval as 
supplementary supporting information, and we do not agree that the 
commenter's concerns about relying on that modeling are warranted. The 
commenter contends that the modeling only goes out three years (to 
2023) and it needs to go out to 10 years, and therefore may not be 
relied upon. However, the Air Quality Modeling TSD was only relied upon 
by EPA to provide additional support to indicate that the area is 
expected to continue to attain the NAAQS during the relevant period. As 
noted previously, West Virginia primarily met the requirement to 
demonstrate maintenance of the NAAQS by showing that they met the 
criteria for an LMP, rather than by modeling or projecting emissions 
inventories out to a future year. We also do not agree that the State 
is required to demonstrate maintenance for 10 years; CAA section 175A 
requires the State to demonstrate maintenance through the 20th year 
after the area is redesignated, which in this case is 2027.
    We also disagree with the commenter's contention that because the 
Air Quality Modeling TSD was performed to analyze the transport of 
pollution across state lines with respect to other ozone NAAQS, it 
cannot be relied upon in this action. We acknowledge that the Air 
Quality Modeling TSD at issue was performed as part of EPA's efforts to 
address interstate transport pollution under CAA section 
110(a)(2)(D)(i)(I). However, the purpose of the Air Quality Modeling 
TSD is fully in keeping with the question of whether West Virginia is 
expected to maintain the NAAQS. The Air Quality Modeling TSD identifies 
which air quality monitors in the United States are projected to have 
problems attaining or maintaining the 2008 and

[[Page 10021]]

2015 NAAQS for ozone in 2023. Because the Air Quality Modeling TSD 
results simply provide projected ozone concentration design values, 
which are expressed as three-year averages of the annual fourth high 8-
hour daily maximum ozone concentrations, the modeling results are 
useful for analyzing attainment and maintenance of any of the ozone 
NAAQS that are measured using this averaging time; in this case, the 
1997, 2008 and 2015 ozone NAAQS. The only difference between the three 
standards is stringency. Taking the Weirton Area's most recent 
certified design value as of the proposal (i.e., for the years 2016-
2018), the area's design value was 0.065 ppm. What we can discern from 
this is that the Weirton Area is meeting the 1997 8-hour ozone NAAQS of 
0.080 ppm, the 2008 ozone NAAQS of 0.075 ppm, and the 2015 ozone NAAQS 
of 0.070 ppm. The same principle applies to projected design values 
from the Air Quality Modeling TSD. In this case, the interstate 
transport modeling indicated that in 2023, the Weirton Area's design 
value is projected to be 0.060 ppm, which is again, well below all 
three standards. The fact that the Air Quality Modeling TSD was 
performed to indicate whether the area will have problems attaining or 
maintaining the 2015 ozone NAAQS (i.e., 0.070 ppm) does not make the 
modeling less useful for determining whether the area will also meet 
the less stringent revoked 1997 standard (i.e., 0.080 ppm).
    The commenter asserts that many groups have criticized EPA's 
transport modeling, alleging that the agency used improper emissions 
inventories, incorrect contribution thresholds, wrong modeling years, 
or that EPA has not accounted for local situations or reductions that 
occurred after the inventories were established. The commenter also 
alleges that EPA should not rely on its modeling because it ``fails to 
stand up to the recent court decisions,'' citing the Wisconsin v. EPA 
D.C. Circuit decision. EPA disagrees that the existence of criticisms 
of the agency's Air Quality Modeling TSD render it unreliable, and we 
also do not agree that anything in recent court decisions, including 
Wisconsin v. EPA, suggests that EPA's Air Quality Modeling TSD is 
technically flawed. We acknowledge that the source apportionment air 
quality modeling runs cited by the commenter have been at issue in 
various legal challenges to EPA actions, including the Wisconsin v. EPA 
case.\13\ However, in that case, the only flaw in EPA's Air Quality 
Modeling TSD identified by the D.C. Circuit was the fact that its 
analytic year did not align with the attainment date found in CAA 
section 181.\14\ Contrary to the commenter's suggestion, the D.C. 
Circuit upheld EPA's Air Quality Modeling TSD with respect to the many 
technical challenges raised by petitioners in the Wisconsin case.\15\ 
We therefore think reliance on the interstate transport Air Quality 
Modeling TSD as supplemental support for showing that the Weirton Area 
will maintain the 1997 8-hour ozone NAAQS through the end of its 20th-
year maintenance period is appropriate.
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    \13\ 938 F.3d 303 (D.C. Cir. 2019).
    \14\ Id. at 313.
    \15\ Wisconsin, 938 F.3d at 323-331.
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Comment 4

    The commenter asserts that EPA should disapprove this maintenance 
plan because EPA should not allow states to rely on emission programs 
such as the Cross-State Air Pollution Rule (CSAPR) to demonstrate 
maintenance for the 1997 ozone NAAQS. The commenter alleges that ``the 
CSAPR and CSAPR Update and CSAPR Close-out rules were vacated 
entirely'' by multiple courts and ``are now illegal programs providing 
no legally enforceable emission reductions to any states formerly 
covered by the rules.'' The commenter also asserts that nothing 
restricts ``big coal and gas power plants from emitting way beyond 
there (sic) restricted amounts.'' The commenter does allow that ``If 
EPA can show that continued maintenance without these rules is possible 
for the next 10 years then that would be OK but as the plan stands it 
relies on these reductions and must be disapproved.''

Response 4

    The commenter has misapprehended the factual circumstances 
regarding these interstate transport rules. Every rule cited by the 
commenter that achieves emission reductions from electric generating 
units (EGUs or power plants)--i.e., the Cross-State Air Pollution Rule 
and the CSAPR Update--remains in place and continues to ensure emission 
reductions of nitrogen oxides (NOX) and sulfur dioxide 
(SO2). CSAPR began implementation in 2015 (after it was 
largely upheld by the Supreme Court) and the CSAPR Update began 
implementation in 2017. The latter rule was remanded to EPA to address 
the analytic year issues discussed in the prior comment and response, 
but the rule remains fully in effect. The commenter is correct that the 
D.C. Circuit vacated the CSAPR close-out, but we note that that rule 
was only a determination that no further emission reductions were 
required to address interstate transport obligations for the 2008 ozone 
NAAQS; the rule did not itself establish any emission reductions. We 
therefore disagree that the legal status of these rules presents any 
obstacle to EPA's approval of West Virginia's submission.

IV. Final Action

    EPA is approving the 1997 8-hour ozone NAAQS limited maintenance 
plan for the Steubenville-Weirton, OH-WV area (Weirton Area), 
comprising Brooke and Hancock Counties as a revision to the West 
Virginia SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action under Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);

[[Page 10022]]

     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 19, 2021. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action pertaining to West Virginia's limited maintenance plan 
for the Steubenville-Weirton, OH-WV area (Weirton Area), comprising 
Brooke and Hancock Counties may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: February 8, 2021.
Diana Esher,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table in paragraph (e) is amended by adding 
the entry ``1997 8-Hour Ozone National Ambient Air Quality Standard 
Second Maintenance Plan for the West Virginia Portion of the 
Steubenville-Weirton, OH-WV Area Comprising Brooke and Hancock 
Counties'' at the end of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1997 8-Hour Ozone National         Steubenville-            12/10/19  2/18/2021, [insert
 Ambient Air Quality Standard       Weirton, OH-WV Area                Federal Register
 Second Maintenance Plan for the    Comprising Brooke                  citation].
 West Virginia Portion of the       and Hancock
 Steubenville-Weirton, OH-WV Area   Counties.
 Comprising Brooke and Hancock
 Counties.
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[FR Doc. 2021-03027 Filed 2-17-21; 8:45 am]
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