Air Plan Approval; West Virginia; 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the Huntington-Ashland, WV-KY Area Comprising Cabell and Wayne Counties, 12265-12270 [2021-04107]
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requirements and does not impose
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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);
• Does not impose an information
collection burden under the provisions
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U.S.C. 3501 et seq.);
• Is certified as not having a
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substantial number of small entities
under the Regulatory Flexibility Act (5
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mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
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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 the EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practical and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the 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).
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submit a report containing this action
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Ammonia,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
dioxide, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 23, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
Chapter I, title 40 of the Code of
Federal Regulations is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
12265
and now deleted with replacement at
(c)(553)(i)(B)(1)(i), Ordinance No. 344,
Portola Municipal Code, Chapter 15.10,
‘‘Wood Stove and Fireplace Ordinance,’’
adopted June 22, 2016.
*
*
*
*
*
(500) * * *
(ii) * * *
(A) * * *
(2) The ‘‘Portola Fine Particulate
Matter (PM2.5) Attainment Plan,’’
adopted January 23, 2017, subchapter
VI.B (‘‘Contingency Measure’’), as
supplemented and revised October 26,
2020.
*
*
*
*
*
(553) The following additional
materials were submitted on December
29, 2020, by the Governor’s designee as
an attachment to a letter dated
December 28, 2020.
(i) Incorporation by reference. (A)
Northern Sierra Air Quality
Management District.
(1) City of Portola.
(i) Ordinance No. 359, Portola
Municipal Code, Chapter 15.10, ‘‘Wood
Stove and Fireplace Ordinance and the
Prohibition of the Open Burning of Yard
Waste,’’ adopted September 9, 2020,
except paragraph 15.10.060 B., section
15.10.100, and section 15.10.110.
(ii) [Reserved]
(B) [Reserved]
(ii) Additional materials. (A)
California Air Resources Board.
(1) Resolution 20–26, ‘‘Proposed
Portola PM2.5 Plan Contingency Measure
State Implementation Plan Submittal,’’
adopted November 19, 2020.
(2) [Reserved]
(B) Northern Sierra Air Quality
Management District.
(1) Northern Sierra Air Quality
Management District Resolution 2020–
09, adopted October 26, 2020.
(2) [Reserved]
[FR Doc. 2021–04351 Filed 3–2–21; 8:45 am]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart F—California
2. Section 52.220 is amended by
adding paragraphs (c)(497)(i)(C)(1)(ii),
(c)(500)(ii)(A)(2), and (c)(553) to read as
follows:
■
§ 52.220
Identification of plan—in part.
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(c) * * *
(497) * * *
(i) * * *
(C) * * *
(1) * * *
(ii) Previously approved on March 5,
2018 at (c)(497)(i)(C)(1)(i) of this section
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2020–0196; FRL–10020–
45–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 Huntington-Ashland, WV-KY Area
Comprising Cabell and Wayne
Counties
Environmental Protection
Agency (EPA).
AGENCY:
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II. Summary of SIP Revision and EPA
Analysis
Final rule.
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 (WV). This revision pertains to
West Virginia’s plan for maintaining the
1997 8-hour ozone national ambient air
quality standard (NAAQS) for the West
Virginia portion of the HuntingtonAshland, WV-KY area (Huntington
Area), comprising Cabell and Wayne
Counties. The EPA is approving these
revisions to the West Virginia SIP in
accordance with the requirements of the
Clean Air Act (CAA).
SUMMARY:
On September 15, 2006 (71 FR 54421,
effective October 16, 2006), EPA
approved a redesignation request (and
maintenance plan) from WVDEP for the
Huntington 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 Huntington Area, that
had been redesignated to attainment for
the 1997 8-hour ozone NAAQS prior to
revocation and that were designated
DATES: This final rule is effective on
attainment for the 2008 ozone NAAQS.
April 2, 2021.
CAA section 175A sets forth the criteria
ADDRESSES: EPA has established a
for adequate maintenance plans. In
docket for this action under Docket ID
addition, EPA has published
Number EPA–R03–OAR–2020–0196. All longstanding guidance that provides
documents in the docket are listed on
further insight on the content of an
the https://www.regulations.gov
approvable maintenance plan,
website. Although listed in the index,
explaining that a maintenance plan
some information is not publicly
should address five elements: (1) An
available, e.g., confidential business
attainment emissions inventory; (2) a
information (CBI) or other information
maintenance demonstration; (3) a
whose disclosure is restricted by statute. commitment for continued air quality
Certain other material, such as
monitoring; (4) a process for verification
copyrighted material, is not placed on
of continued attainment; and (5) a
the internet and will be publicly
contingency plan.2 WVDEP’s December
10, 2019 SIP submittal fulfills West
available only in hard copy form.
Virginia’s obligation to submit a second
Publicly available docket materials are
maintenance plan and addresses each of
available through https://
the five necessary elements.
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
As discussed in the June 29, 2020
INFORMATION CONTACT section for
NPRM, consistent with longstanding
additional availability information.
EPA’s guidance,3 areas that meet certain
criteria may be eligible to submit a
FOR FURTHER INFORMATION CONTACT:
limited maintenance plan (LMP) to
Keila M. Paga´n-Incle, Planning &
satisfy one of the requirements of CAA
Implementation Branch (3AD30), Air &
Radiation Division, U.S. Environmental section 175A. Specifically, states may
meet CAA section 175A’s requirements
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania to ‘‘provide for maintenance’’ by
demonstrating that the area’s design
19103. The telephone number is (215)
value 4 are well below the NAAQS and
814–2926. Ms. Paga´n-Incle can also be
reached via electronic mail at pagan1 882 F.3d 1138 (D.C. Cir. 2018).
incle.keila@epa.gov.
2 ‘‘Procedures for Processing Requests to
SUPPLEMENTARY INFORMATION:
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I. Background
On June 29, 2020 (85 FR 38825), 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 October 16,
2026, in accordance with CAA section
175A. The formal SIP revision was
submitted by WVDEP on December 10,
2019.
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Redesignate Areas to Attainment,’’ Memorandum
from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (Calcagni
Memo).
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
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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 Huntington Area, comprising Cabell
and Wayne 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 four sets of relevant
comments on the June 29, 2020 NPRM.
Comments 2 and 3 raised concerns
about EPA’s reliance on the Air Quality
Modeling Technical Support Document
(TSD) and are summarized and
addressed together under Comment 2.
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 contends
that the LMP should not be approved
because it is not based on the ‘‘the best
available science.’’ The commenter
asserts that the second maintenance
plan does not provide information
regarding the prevention and reduction
of future impacts of ‘‘oil and gas
development activity,’’ and does not
take into consideration impacts of
‘‘installation of oil and gas pipelines in
the area.’’ Additionally, the commenter
asserts that the LMP ‘‘does not have
adequate funding to cover the costs and
does not comply with other provisions
of state policy that make it impossible
for it to meet the EPA standards.’’
Further, the commenter claims that the
second maintenance plan failed to
consider ‘‘potential emissions from oil
and gas pipelines’’ including ‘‘spills and
releases,’’ and these emissions need to
be included and mitigated.
Response 1: Commenter contends that
EPA’s proposed approval of West
Virginia’s second maintenance plan is
not based on ‘‘the best available
science,’’ but provides no support for its
contention. EPA disagrees with the
commenter that West Virginia’s second
maintenance plan is not based on ‘‘the
is the highest design value of any monitoring site
in the area.
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best available science.’’ As EPA laid out
in the NPRM, EPA has interpreted the
provision in CAA section 175A that
requires states to ‘‘provide for
maintenance’’ of the NAAQS to be
satisfied when the design values are
consistently below 85% of the relevant
standard, which in this case means at or
below 0.071 parts per million (ppm). At
the time of submission, on December 10,
2019, the Huntington Area’s 2016 to
2018 design value was at 0.064 ppm.
The 2017 to 2019 period design value
fell to 0.062 ppm. As EPA noted in the
NPRM the area has maintained design
values below 0.065 ppm since 2014. The
commenter did not identify what
science might provide a better basis for
demonstrating maintenance with the
ozone NAAQS than what West Virginia
relied upon in the second maintenance
plan, or that EPA should consider in its
evaluation of the plan. The commenter
had provided EPA with no basis to
change its conclusion that the data and
analysis of the data provided by West
Virginia in support of the second
maintenance plan will result in
maintenance of the NAAQS for the
remainder of the second maintenance
period. See, e.g., International Fabricare
Institute v. E.P.A., 972 F.2d 384, 391
(D.C. Cir. 1992). (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.)
The commenter further asserts that:
(1) The plan did not provide
information about prevention and
reduction of future impacts of ‘‘oil and
gas development activity;’’ (2) the plan
did not take into consideration future
installation of oil and gas pipelines in
the area; and (3) the plan failed to
consider ‘‘potential emissions from oil
and gas pipeline.’’ We do not agree with
the commenter that a demonstration of
maintenance under CAA section 175A
is required to ‘‘prevent’’ potential future
emissions activities in the area, or to
consider potential future emissions from
sources that do not yet exist. As noted
above and in the proposal, under the
LMP option, states may demonstrate
that areas will maintain the NAAQS by
showing that design values in the area
in question are stably and significantly
below the level of the NAAQS. In this
case, the Huntington Area’s most recent
design value 5 is below 0.065 ppm and
5 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
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has been since 2014. The design values
for the Huntington Area, that includes
Cabell County in West Virginia and
Boyd County in Kentucky (KY),
consistently have been below 0.071 ppm
since 2013 through 2019, the last year
for which EPA has data.6 See Table 1 of
this preamble for the design value data
in ppm for both counties. Based on
these trends, EPA has a high degree of
confidence that the Area will be able to
continue to maintain the NAAQS.
TABLE 1—REPORTED DESIGN VALUE
DATA BETWEEN 2006 AND 2019
FOR CABELL COUNTY, WV AND
BOYD COUNTY, KY 7
Design value (ppm)
Year
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
Cabell County,
WV
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
Boyd County,
KY
0.076
0.084
0.080
0.073
0.066
0.067
0.072
0.069
0.065
0.062
0.064
0.064
0.064
0.062
0.076
0.077
0.074
0.070
0.070
0.069
0.072
0.069
0.068
0.066
0.066
0.065
0.064
0.062
Moreover, in addition to
demonstrating maintenance via the LMP
option, West Virginia also pointed to
EPA’s Air Quality Modeling TSD which
projects future design values, including
the Huntington Area, in 2023. This
modeling takes into consideration all
on-the-books control measures and any
known future planned projects and
sources. The Air Quality Modeling TSD
projects that the average design value
for the area in 2023 to be 0.058 ppm.
This value is so far below the level of
the 1997 8-hour ozone NAAQS that
even if additional oil and gas sources
is the highest design value of any monitoring site
in the area.
6 Design values for 2020 are not expected to be
available before May 1, 2021. Design values are
calculated for the year after states, locals and/or
tribes certify their data on May 1st of the following
year. Typically, design values are not finalized and
posted until July of the following year. Design
values are published annually by EPA and currently
available through calendar year 2019. For more
information on air quality design values visit:
https://www.epa.gov/air-trends/air-quality-designvalues.
7 See ‘‘EPA Air Quality System—Huntington WV
Design Value Report’’ of WVDEP’s December 10,
2019 submittal, which includes details about the
design values from the Huntington Area in WV
from 2006 until 2019. Air quality data is also
available at: https://www.epa.gov/outdoor-airquality-data.
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12267
were to be sited in the Huntington Area
(any of which would be subject to
applicable CAA controls such as
Prevention of Significant Deterioration
[PSD]), those emissions increases would
be unlikely to cause the area to violate
the 1997 8-hour ozone NAAQS. Any
emissions increases above the trigger
levels specified in the LMP, whatever
the cause, will result in West Virginia
having to implement contingency
measures as described in the NPRM.
Moreover, as stated in the NPRM, if
there is indeed a violation and the
design value exceeds the NAAQS, the
contingency plan will be ‘‘triggered,’’
based on the following schedule: (1)
Quality assurance procedures must
confirm the monitored violation within
45 days of occurrence; (2) a draft rule
would be developed by WVDEP for any
regulation chosen; (3) WVDEP will
adopt the selected control measure(s) as
emergency rule(s) which will be
implemented within six months after
adoption and will file the rule(s) as
legislative rule(s) for permanent
authorization by the legislature; and (4)
for each voluntary measure selected,
WVDEP will initiate program
development with local governments
within the area by the start of the
following ozone season. These measures
are part of the CAA section 175A
requirements for an approvable LMP
and West Virginia’s second maintenance
plan meets these requirements.
The commenter also contends that the
LMP does not present ‘‘adequate
funding to cover the costs’’ and fails to
‘‘comply with other provisions of state
policy,’’ but provides no further details
or explanation. Similar to the comment
regarding the alleged failure of West
Virginia to use ‘‘the best available
science,’’ the commenter has made an
allegation without providing any
support. The commenter provides no
basis for EPA to be able to evaluate
whether or not a funding issue exists.
With respect to an alleged failure to
comply with state policy, no specific
policies that ‘‘make it impossible for it
to meet the EPA standards’’ are cited by
the commenter. Even had the
commenter cited specific policies,
‘‘[C]omments consisting of little more
than assertions that in the opinions of
the commenters the agency got it
wrong,’’ when submitted with no
accompanying data do not provide
sufficient ground for EPA to change its
evaluation of a plan that on its face
comports with EPA’s governing law and
with the Agency’s consistent and longstanding policies for LMPs. See
International Fabricare at 391.
Furthermore, CAA section 175A does
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not require that maintenance plans
identify or provide funding for any costs
associated with implementation of the
plan. EPA has set forth in the NPRM the
criteria relevant to approvability of the
LMP. EPA has determined that the
December 10, 2019 SIP revision
includes adequate information to
support approval of West Virginia’s
LMP. As set forth in the NPRM, EPA has
determined that the State provided
sufficient assurances in the LMP for
EPA to approve West Virginia’s 1997 8hour ozone second maintenance plan
for the Huntington Area. EPA’s
evaluation of the West Virginia’s
December 10, 2019 SIP revision and the
rationale for taking rulemaking action
on this submission was discussed in
detail in the NPRM. This comment gives
EPA no reason to believe that the
criteria it applied in the NPRM are
either incorrect, incomplete or have
been misapplied.
Comment 2: Two commenters assert
that the LMP should not be approved
because of EPA’s reliance on the Air
Quality Modeling TSD that was
developed for EPA’s regional transport
rulemaking.
One of the commenters alleged that
the TSD does not consider newer EPA
policies (i.e., ‘‘repealing the MATS rule
or removing California’s ability to
regulate cars, or even the repeal of the
Clean Power Plan and replacement with
the ACE rule’’).
Both commenters contend 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; and (4) the
TSD has been ‘‘highly contested’’ by
environmental groups, ‘‘incorrectly uses
assumptions disputed by multiple nongovernmental and governmental
organizations’’ and ‘‘other states
contend EPA’s modeling as flawed.’’
Further, one commenter contends that
the TSD does not address a recent court
decision that ‘‘threw out’’ EPA’s
modeling ‘‘because it modeled to the
wrong attainment year. . . .’’ Both
commenters assert that the TSD is not
being used for its intended purpose and
EPA should disapprove the LMP due to
EPA’s reliance on the TSD in the NPRM.
Response 2: EPA does not agree with
the commenters that approval of West
Virginia’s second maintenance plan is
not appropriate. The commenters raise
concerns about West Virginia and EPA’s
citation of the Air Quality Modeling
TSD, but the commenters ignore that
EPA’s primary basis for finding that
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West Virginia has provided for
maintenance of the 1997 8-hour ozone
NAAQS in the Huntington Area is the
State’s demonstration that the criteria
for a LMP has been met. See 85 FR
38825, 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 ppm.
EPA calls such demonstration a
‘‘limited maintenance plan.’’ The Air
Quality Modeling TSD referenced by
West Virginia merely provides
additional support for the area’s
continued maintenance of the 1997 8hour ozone NAAQS.
EPA disagrees that it must disapprove
the LMP because the Air Quality
Modeling TSD does not consider newer
EPA policies like ‘‘repealing the MATS
(Mercury and Air Toxics Standards)
rule, or California’s ability to regulate
cars, or even the repeal of the Clean
Power Plan and replacement with the
ACE (Affordable Clean Energy) rule.’’
First, MATS was not repealed. All
emission reductions required under
MATS remain. See 85 FR 31286, 31312
(May 22, 2020). Second, the 2023 Air
Quality Modeling TSD cited by West
Virginia in their second maintenance
plan submission does not include
emission reductions associated with the
Clean Power Plan.8 (EPA’s actions with
respect to regulating automobile
emissions in California are not relevant
to this action).
The modeling cited by the
commenters 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
commenters’ concerns about relying on
that modeling are warranted. The
commenters contend 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.
8 See Technical Support Document (TSD),
Additional Updates to Emissions Inventories for the
Version 6.3, 2011 Emissions Modeling Platform for
the Year 2023, available at https://www.epa.gov/
sites/production/files/2017-11/documents/
2011v6.3_2023en_update_emismod_tsd_
oct2017.pdf, at 92 (‘‘The projected EGU emissions
for 2023el included the Final Mercury and Air
Toxics (MATS) rule announced on December 21,
2011, the Cross-State Air Pollution Rule (CSAPR)
issued July 6, 2011, the CSAPR Update Rule issued
October 26, 2016 and the Clean Power Plan (CPP),
while the 2023en emissions [i.e., the emissions
inventory used in the updated 2023 modeling]
include the other rules but do not include the
CPP.’’)
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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 above, 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 2026.
We also disagree with the
commenters’ 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 the Huntington
Area is expected to maintain the
NAAQS. The Air Quality Modeling TSD
projected ozone concentrations at every
air quality monitor in the contiguous
United States in 2023 in order to
identify which monitors might have
problems attaining or maintaining the
2008 and 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 8hour 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 Huntington
Area’s most recent certified design value
as part of the proposal (i.e., for the years
2016–2018), the area’s design value was
0.064 ppm. What we can discern from
this is that the area is meeting the 1997
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 Huntington Area’s
design value is projected to be 0.058
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jbell on DSKJLSW7X2PROD with RULES
ppm,9 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 commenters’ assert 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
commenters’ also allege that EPA
should not rely on its modeling because
it ‘‘have now been outlawed by multiple
courts’’ and ‘‘fails to stand up to the
recent court decisions,’’ citing the
Wisconsin v. EPA D.C. Circuit
decision.10 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 TSD runs cited by the
commenters have been at issue in
various legal challenges to EPA actions,
including the Wisconsin v. EPA case.
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 181.11 Contrary to the
commenters’ 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.12 We therefore think
reliance on the interstate transport Air
Quality Modeling TSD as supplemental
support for showing that the Huntington
Area will maintain the 1997 8-hour
ozone NAAQS through the end of its
20th year maintenance period is
appropriate.
9 The June 29, 2020 NPRM for this action recited
0.060 ppm as the Projected 2023 design value in
Table 2—Huntington Area 8-hour Ozone Design
Value in Parts Per Million. Through this final action
we clarify that the correct Projected 2023 design
value that was included in the State’s submission,
is 0.058 ppm. The inclusion of the slightly higher
but incorrect figure in the NPRM is a harmless error
that does not alter EPA’s proposal to approve this
LMP.
10 Wisconsin, 938 F.3d 303 (D.C. Cir. 2019).
11 Wisconsin, 938 F.3d at 313.
12 Wisconsin, 938 F.3d at 323–331.
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16:13 Mar 02, 2021
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Comment 3: 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 CSAP and CSAP Update and CSAP
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 3: 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 CrossState 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 Huntington Area,
comprising Cabell and Wayne Counties
as a revision to the West Virginia SIP.
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
12269
V. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because it is not a significant
regulatory action under Executive Order
12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• 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
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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).
Name of non-regulatory SIP revision
*
*
1997 8-Hour Ozone National Ambient Air
Quality Standard Second Maintenance
Plan for the West Virginia Portion of
the Huntington-Ashland, WV-KY Area
Comprising Cabell and Wayne Counties.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2020–0388; FRL–10020–
89–Region 5]
Air Plan Approval; Ohio; Base Year
Emission Inventories and Emissions
Statement Rule Certification for the
2015 Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
jbell on DSKJLSW7X2PROD with RULES
AGENCY:
The Environmental Protection
Agency (EPA) is approving, under the
Clean Air Act (CAA), a revision to the
State Implementation Plan (SIP)
submitted by the Ohio Environmental
Protection Agency on July 24, 2020. The
16:13 Mar 02, 2021
Jkt 253001
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Volatile organic compounds.
*
Huntington-Ashland WVKY, West Virginia Area
Comprising Cabell and
Wayne Counties.
BILLING CODE 6560–50–P
VerDate Sep<11>2014
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by May 3, 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 Huntington Area, comprising Cabell
and Wayne Counties may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
State submittal date
Applicable geographic area
[FR Doc. 2021–04107 Filed 3–2–21; 8:45 am]
SUMMARY:
C. Petitions for Judicial Review
*
12/10/19
Frm 00014
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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 an entry for
‘‘1997 8-Hour Ozone National Ambient
Air Quality Standard Second
Maintenance Plan for the West Virginia
Portion of the Huntington-Ashland, WVKY Area Comprising Cabell and Wayne
Counties’’ at the end of the table to read
as follows:
■
§ 52.2520
*
Identification of plan.
*
*
(e) * * *
*
*
3/3/21, [insert Federal
Register citation].
*
Additional
explanation
EPA approval date
CAA establishes emission inventory
requirements for all ozone
nonattainment areas. The revision
addresses the emission inventory
requirements for the Cleveland, Ohio
(OH) ozone nonattainment area and the
Ohio portion of the Cincinnati, OhioKentucky (Cincinnati) ozone
nonattainment area, as designated under
the 2015 ozone National Ambient Air
Quality Standard (NAAQS or standard).
EPA is also confirming that Ohio’s
stationary annual emissions statement
regulation, which has been previously
approved by EPA under a prior ozone
standard, satisfies the CAA emissions
statement rule requirement for the
Cleveland and Cincinnati
nonattainment areas under the 2015
ozone NAAQS.
DATES: This final rule is effective on
April 2, 2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2020–0388. All
PO 00000
Dated: February 18, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
*
*
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
i.e., 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 either through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and
facility closures due to COVID–19. We
recommend that you telephone Charles
Hatten, Environmental Engineer, at
(312) 886–6031 before visiting the
Region 5 office.
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]]>Agencies
[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Rules and Regulations]
[Pages 12265-12270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04107]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2020-0196; FRL-10020-45-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 Huntington-Ashland, WV-KY Area Comprising
Cabell and Wayne Counties
AGENCY: Environmental Protection Agency (EPA).
[[Page 12266]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the West Virginia
Department of Environmental Protection (WVDEP) on behalf of the State
of West Virginia (WV). This revision pertains to West Virginia's plan
for maintaining the 1997 8-hour ozone national ambient air quality
standard (NAAQS) for the West Virginia portion of the Huntington-
Ashland, WV-KY area (Huntington Area), comprising Cabell and Wayne
Counties. The 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 April 2, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2020-0196. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
https://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Keila M. Pag[aacute]n-Incle, Planning
& Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2926. Ms. Pag[aacute]n-Incle can also be reached via electronic mail at
pagan[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 29, 2020 (85 FR 38825), 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 October 16, 2026, 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 September 15, 2006 (71 FR 54421, effective October 16, 2006),
EPA approved a redesignation request (and maintenance plan) from WVDEP
for the Huntington 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 Huntington
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 Virginia's obligation to submit a second maintenance plan and
addresses each of the five necessary elements.
---------------------------------------------------------------------------
\1\ 882 F.3d 1138 (D.C. Cir. 2018).
\2\ ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (Calcagni Memo).
---------------------------------------------------------------------------
As discussed in the June 29, 2020 NPRM, consistent with
longstanding EPA's 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\ are well below the NAAQS
and that it has had historical stability attaining the NAAQS. EPA
evaluated WVDEP's December 10, 2019 submittal for consistency with all
applicable EPA guidance and CAA requirements. EPA found that the
submittal met CAA section 175A and all CAA requirements, and proposed
approval of the LMP for the Huntington Area, comprising Cabell and
Wayne 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.
---------------------------------------------------------------------------
\3\ See ``Limited Maintenance Plan Option for Nonclassifiable
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air
Quality Planning and Standards (OAQPS), dated November 16, 1994;
``Limited Maintenance Plan Option for Nonclassifiable CO
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6,
1995; and ``Limited Maintenance Plan Option for Moderate
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS,
dated August 9, 2001.
\4\ The ozone design value for a monitoring site is the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentrations. The design value for an ozone nonattainment
area is the highest design value of any monitoring site in the area.
---------------------------------------------------------------------------
Other specific requirements of WVDEP's December 10, 2019 submittal
and the rationale for EPA's proposed action are explained in the NPRM
and will not be restated here.
III. EPA's Response to Comments Received
EPA received four sets of relevant comments on the June 29, 2020
NPRM. Comments 2 and 3 raised concerns about EPA's reliance on the Air
Quality Modeling Technical Support Document (TSD) and are summarized
and addressed together under Comment 2. 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 contends that the LMP should not be
approved because it is not based on the ``the best available science.''
The commenter asserts that the second maintenance plan does not provide
information regarding the prevention and reduction of future impacts of
``oil and gas development activity,'' and does not take into
consideration impacts of ``installation of oil and gas pipelines in the
area.'' Additionally, the commenter asserts that the LMP ``does not
have adequate funding to cover the costs and does not comply with other
provisions of state policy that make it impossible for it to meet the
EPA standards.'' Further, the commenter claims that the second
maintenance plan failed to consider ``potential emissions from oil and
gas pipelines'' including ``spills and releases,'' and these emissions
need to be included and mitigated.
Response 1: Commenter contends that EPA's proposed approval of West
Virginia's second maintenance plan is not based on ``the best available
science,'' but provides no support for its contention. EPA disagrees
with the commenter that West Virginia's second maintenance plan is not
based on ``the
[[Page 12267]]
best available science.'' As EPA laid out in the NPRM, EPA has
interpreted the provision in CAA section 175A that requires states to
``provide for maintenance'' of the NAAQS to be satisfied when the
design values are consistently below 85% of the relevant standard,
which in this case means at or below 0.071 parts per million (ppm). At
the time of submission, on December 10, 2019, the Huntington Area's
2016 to 2018 design value was at 0.064 ppm. The 2017 to 2019 period
design value fell to 0.062 ppm. As EPA noted in the NPRM the area has
maintained design values below 0.065 ppm since 2014. The commenter did
not identify what science might provide a better basis for
demonstrating maintenance with the ozone NAAQS than what West Virginia
relied upon in the second maintenance plan, or that EPA should consider
in its evaluation of the plan. The commenter had provided EPA with no
basis to change its conclusion that the data and analysis of the data
provided by West Virginia in support of the second maintenance plan
will result in maintenance of the NAAQS for the remainder of the second
maintenance period. See, e.g., International Fabricare Institute v.
E.P.A., 972 F.2d 384, 391 (D.C. Cir. 1992). (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.)
The commenter further asserts that: (1) The plan did not provide
information about prevention and reduction of future impacts of ``oil
and gas development activity;'' (2) the plan did not take into
consideration future installation of oil and gas pipelines in the area;
and (3) the plan failed to consider ``potential emissions from oil and
gas pipeline.'' We do not agree with the commenter that a demonstration
of maintenance under CAA section 175A is required to ``prevent''
potential future emissions activities in the area, or to consider
potential future emissions from sources that do not yet exist. As noted
above and in the proposal, under the LMP option, states may demonstrate
that areas will maintain the NAAQS by showing that design values in the
area in question are stably and significantly below the level of the
NAAQS. In this case, the Huntington Area's most recent design value \5\
is below 0.065 ppm and has been since 2014. The design values for the
Huntington Area, that includes Cabell County in West Virginia and Boyd
County in Kentucky (KY), consistently have been below 0.071 ppm since
2013 through 2019, the last year for which EPA has data.\6\ See Table 1
of this preamble for the design value data in ppm for both counties.
Based on these trends, EPA has a high degree of confidence that the
Area will be able to continue to maintain the NAAQS.
---------------------------------------------------------------------------
\5\ 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.
\6\ Design values for 2020 are not expected to be available
before May 1, 2021. Design values are calculated for the year after
states, locals and/or tribes certify their data on May 1st of the
following year. Typically, design values are not finalized and
posted until July of the following year. Design values are published
annually by EPA and currently available through calendar year 2019.
For more information on air quality design values visit: https://www.epa.gov/air-trends/air-quality-design-values.
Table 1--Reported Design Value Data Between 2006 and 2019 for Cabell
County, WV and Boyd County, KY \7\
------------------------------------------------------------------------
Design value (ppm)
-------------------------------------------------------------------------
Cabell County, Boyd County,
Year WV KY
------------------------------------------------------------------------
2006.................................... 0.076 0.076
2007.................................... 0.084 0.077
2008.................................... 0.080 0.074
2009.................................... 0.073 0.070
2010.................................... 0.066 0.070
2011.................................... 0.067 0.069
2012.................................... 0.072 0.072
2013.................................... 0.069 0.069
2014.................................... 0.065 0.068
2015.................................... 0.062 0.066
2016.................................... 0.064 0.066
2017.................................... 0.064 0.065
2018.................................... 0.064 0.064
2019.................................... 0.062 0.062
------------------------------------------------------------------------
Moreover, in addition to demonstrating maintenance via the LMP
option, West Virginia also pointed to EPA's Air Quality Modeling TSD
which projects future design values, including the Huntington Area, in
2023. This modeling takes into consideration all on-the-books control
measures and any known future planned projects and sources. The Air
Quality Modeling TSD projects that the average design value for the
area in 2023 to be 0.058 ppm. This value is so far below the level of
the 1997 8-hour ozone NAAQS that even if additional oil and gas sources
were to be sited in the Huntington Area (any of which would be subject
to applicable CAA controls such as Prevention of Significant
Deterioration [PSD]), those emissions increases would be unlikely to
cause the area to violate the 1997 8-hour ozone NAAQS. Any emissions
increases above the trigger levels specified in the LMP, whatever the
cause, will result in West Virginia having to implement contingency
measures as described in the NPRM. Moreover, as stated in the NPRM, if
there is indeed a violation and the design value exceeds the NAAQS, the
contingency plan will be ``triggered,'' based on the following
schedule: (1) Quality assurance procedures must confirm the monitored
violation within 45 days of occurrence; (2) a draft rule would be
developed by WVDEP for any regulation chosen; (3) WVDEP will adopt the
selected control measure(s) as emergency rule(s) which will be
implemented within six months after adoption and will file the rule(s)
as legislative rule(s) for permanent authorization by the legislature;
and (4) for each voluntary measure selected, WVDEP will initiate
program development with local governments within the area by the start
of the following ozone season. These measures are part of the CAA
section 175A requirements for an approvable LMP and West Virginia's
second maintenance plan meets these requirements.
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\7\ See ``EPA Air Quality System--Huntington WV Design Value
Report'' of WVDEP's December 10, 2019 submittal, which includes
details about the design values from the Huntington Area in WV from
2006 until 2019. Air quality data is also available at: https://www.epa.gov/outdoor-air-quality-data.
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The commenter also contends that the LMP does not present
``adequate funding to cover the costs'' and fails to ``comply with
other provisions of state policy,'' but provides no further details or
explanation. Similar to the comment regarding the alleged failure of
West Virginia to use ``the best available science,'' the commenter has
made an allegation without providing any support. The commenter
provides no basis for EPA to be able to evaluate whether or not a
funding issue exists. With respect to an alleged failure to comply with
state policy, no specific policies that ``make it impossible for it to
meet the EPA standards'' are cited by the commenter. Even had the
commenter cited specific policies, ``[C]omments consisting of little
more than assertions that in the opinions of the commenters the agency
got it wrong,'' when submitted with no accompanying data do not provide
sufficient ground for EPA to change its evaluation of a plan that on
its face comports with EPA's governing law and with the Agency's
consistent and long-standing policies for LMPs. See International
Fabricare at 391. Furthermore, CAA section 175A does
[[Page 12268]]
not require that maintenance plans identify or provide funding for any
costs associated with implementation of the plan. EPA has set forth in
the NPRM the criteria relevant to approvability of the LMP. EPA has
determined that the December 10, 2019 SIP revision includes adequate
information to support approval of West Virginia's LMP. As set forth in
the NPRM, EPA has determined that the State provided sufficient
assurances in the LMP for EPA to approve West Virginia's 1997 8-hour
ozone second maintenance plan for the Huntington Area. EPA's evaluation
of the West Virginia's December 10, 2019 SIP revision and the rationale
for taking rulemaking action on this submission was discussed in detail
in the NPRM. This comment gives EPA no reason to believe that the
criteria it applied in the NPRM are either incorrect, incomplete or
have been misapplied.
Comment 2: Two commenters assert that the LMP should not be
approved because of EPA's reliance on the Air Quality Modeling TSD that
was developed for EPA's regional transport rulemaking.
One of the commenters alleged that the TSD does not consider newer
EPA policies (i.e., ``repealing the MATS rule or removing California's
ability to regulate cars, or even the repeal of the Clean Power Plan
and replacement with the ACE rule'').
Both commenters contend 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; and (4) the TSD has been
``highly contested'' by environmental groups, ``incorrectly uses
assumptions disputed by multiple non-governmental and governmental
organizations'' and ``other states contend EPA's modeling as flawed.''
Further, one commenter contends that the TSD does not address a
recent court decision that ``threw out'' EPA's modeling ``because it
modeled to the wrong attainment year. . . .'' Both commenters assert
that the TSD is not being used for its intended purpose and EPA should
disapprove the LMP due to EPA's reliance on the TSD in the NPRM.
Response 2: EPA does not agree with the commenters that approval of
West Virginia's second maintenance plan is not appropriate. The
commenters raise concerns about West Virginia and EPA's citation of the
Air Quality Modeling TSD, but the commenters ignore that EPA's primary
basis for finding that West Virginia has provided for maintenance of
the 1997 8-hour ozone NAAQS in the Huntington Area is the State's
demonstration that the criteria for a LMP has been met. See 85 FR
38825, 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 ppm. EPA calls such demonstration a ``limited
maintenance plan.'' The Air Quality Modeling TSD referenced by West
Virginia merely provides additional support for the area's continued
maintenance of the 1997 8-hour ozone NAAQS.
EPA disagrees that it must disapprove the LMP because the Air
Quality Modeling TSD does not consider newer EPA policies like
``repealing the MATS (Mercury and Air Toxics Standards) rule, or
California's ability to regulate cars, or even the repeal of the Clean
Power Plan and replacement with the ACE (Affordable Clean Energy)
rule.'' First, MATS was not repealed. All emission reductions required
under MATS remain. See 85 FR 31286, 31312 (May 22, 2020). Second, the
2023 Air Quality Modeling TSD cited by West Virginia in their second
maintenance plan submission does not include emission reductions
associated with the Clean Power Plan.\8\ (EPA's actions with respect to
regulating automobile emissions in California are not relevant to this
action).
---------------------------------------------------------------------------
\8\ See Technical Support Document (TSD), Additional Updates to
Emissions Inventories for the Version 6.3, 2011 Emissions Modeling
Platform for the Year 2023, available at https://www.epa.gov/sites/production/files/2017-11/documents/2011v6.3_2023en_update_emismod_tsd_oct2017.pdf, at 92 (``The
projected EGU emissions for 2023el included the Final Mercury and
Air Toxics (MATS) rule announced on December 21, 2011, the Cross-
State Air Pollution Rule (CSAPR) issued July 6, 2011, the CSAPR
Update Rule issued October 26, 2016 and the Clean Power Plan (CPP),
while the 2023en emissions [i.e., the emissions inventory used in
the updated 2023 modeling] include the other rules but do not
include the CPP.'')
---------------------------------------------------------------------------
The modeling cited by the commenters 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
commenters' concerns about relying on that modeling are warranted. The
commenters contend 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 above, 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 2026.
We also disagree with the commenters' 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 the Huntington
Area is expected to maintain the NAAQS. The Air Quality Modeling TSD
projected ozone concentrations at every air quality monitor in the
contiguous United States in 2023 in order to identify which monitors
might have problems attaining or maintaining the 2008 and 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 Huntington Area's most recent certified design
value as part of the proposal (i.e., for the years 2016-2018), the
area's design value was 0.064 ppm. What we can discern from this is
that the area is meeting the 1997 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 Huntington Area's design value is projected to be
0.058
[[Page 12269]]
ppm,\9\ 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).
---------------------------------------------------------------------------
\9\ The June 29, 2020 NPRM for this action recited 0.060 ppm as
the Projected 2023 design value in Table 2--Huntington Area 8-hour
Ozone Design Value in Parts Per Million. Through this final action
we clarify that the correct Projected 2023 design value that was
included in the State's submission, is 0.058 ppm. The inclusion of
the slightly higher but incorrect figure in the NPRM is a harmless
error that does not alter EPA's proposal to approve this LMP.
---------------------------------------------------------------------------
The commenters' assert 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 commenters' also
allege that EPA should not rely on its modeling because it ``have now
been outlawed by multiple courts'' and ``fails to stand up to the
recent court decisions,'' citing the Wisconsin v. EPA D.C. Circuit
decision.\10\ 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 TSD runs cited by the commenters have been at issue in various
legal challenges to EPA actions, including the Wisconsin v. EPA case.
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.\11\
Contrary to the commenters' 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.\12\ We therefore think
reliance on the interstate transport Air Quality Modeling TSD as
supplemental support for showing that the Huntington Area will maintain
the 1997 8-hour ozone NAAQS through the end of its 20th year
maintenance period is appropriate.
---------------------------------------------------------------------------
\10\ Wisconsin, 938 F.3d 303 (D.C. Cir. 2019).
\11\ Wisconsin, 938 F.3d at 313.
\12\ Wisconsin, 938 F.3d at 323-331.
---------------------------------------------------------------------------
Comment 3: 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 CSAP and CSAP Update and CSAP 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 3: 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 Huntington Area, comprising Cabell and Wayne 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);
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
[[Page 12270]]
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the State, and
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 3, 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 Huntington Area, comprising Cabell and Wayne 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 18, 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 an
entry for ``1997 8-Hour Ozone National Ambient Air Quality Standard
Second Maintenance Plan for the West Virginia Portion of the
Huntington-Ashland, WV-KY Area Comprising Cabell and Wayne 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 Huntington-Ashland 12/10/19 3/3/21, [insert ....................
Ambient Air Quality Standard WV-KY, West Federal Register
Second Maintenance Plan for the Virginia Area citation].
West Virginia Portion of the Comprising Cabell
Huntington-Ashland, WV-KY Area and Wayne Counties.
Comprising Cabell and Wayne
Counties.
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[FR Doc. 2021-04107 Filed 3-2-21; 8:45 am]
BILLING CODE 6560-50-P
