Air Plan Approval; West Virginia; 1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the Wheeling, WV-OH Area Comprising Marshall and Ohio Counties, 16672-16676 [2021-06523]
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Ruth B. Stevenson,
Attorney, Federal Compliance.
[FR Doc. 2021–06648 Filed 3–29–21; 4:15 pm]
BILLING CODE P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2020–0198; FRL–10022–
11–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 Wheeling, WV-OH Area Comprising
Marshall and Ohio 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 (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 Wheeling, WVOH area (Wheeling Area) comprising
Marshall and Ohio Counties. EPA is
approving these revisions to the West
Virginia SIP in accordance with the
requirements of the Clean Air Act
(CAA).
SUMMARY:
This final rule is effective on
April 30, 2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
DATES:
PO 00000
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Number EPA–R03–OAR–2020–0198. 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:
I. Background
On June 29, 2020 (85 FR 38831), 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 ozone
NAAQS through June 14, 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 15, 2007 (72 FR 27247,
effective June 14, 2007), EPA approved
a redesignation request (and
maintenance plan) from WVDEP for the
Wheeling 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 (South Coast II),1 the
D.C. Circuit held that this requirement
cannot be waived for areas, like the
Wheeling Area, that had been
redesignated to attainment for the 1997
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
1 882
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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.
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
values 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 Wheeling, WV-OH Area comprising
Marshall and Ohio Counties as a
revision to the West Virginia SIP. The
effect of this action makes certain
commitments related to the
maintenance of the 1997 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.
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III. EPA’s Response to Comments
Received
EPA received four comments on the
June 29, 2020 NPRM. All comments
received are in the docket for this
2 ‘‘Procedures for Processing Requests to
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
is the highest design value of any monitoring site
in the area.
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rulemaking action. A summary of the
comments and EPA’s responses are
provided herein.
Comment 1: The commenter alleges
that the plan should not be approved
due to the allowance of future
expansion of Interstate 70 (I-70) within
Ohio County in West Virginia and
Belmont County in Ohio from a West
Virginia ‘‘transportation conformity
plan.’’ The commenter takes issue that
the ‘‘transportation conformity plan’’
will allow more vehicles to use the
highway, hence increasing the vehicle
miles traveled (VMT) and the mobile
source emissions. The commenter
claims that ‘‘EPA should require WV to
compensate’’ for the increase in VMT
arising from the future expansion
project and suggests that this could be
evaluated by utilizing ‘‘actual VMT data
collected on I-70’’ in the motor vehicle
emission simulator (MOVES) modeling
and the modeling ‘‘will show an
increase in mobile source emissions in
the area beyond that shown in WV’s
plan.’’
Response 1: EPA does not agree with
the commenter that the plan should not
be approved for the reasons given in the
comment. The commenter did not
identify a specific project that would
expand the I-70 as it exists today. In an
effort to identify the project that the
commenter referred to, we reviewed
West Virginia’s current statewide
transportation improvement program
(STIP) and the current long-range
transportation plan for the West Virginia
portion of the Wheeling metropolitan
area which includes Marshall and Ohio
Counties. We could not identify any I70 expansion projects in the STIP.5 We
did identify several bridge rehabilitation
projects on I-70, but these would not
constitute highway expansion projects
and would not result in increased
vehicle miles traveled. We did identify
one highway expansion project in the
area’s long-range transportation plan.6
That project would upgrade I-70 to six
lanes from Elm Grove/Triadelphia
interchange to Cabela Drive in Ohio
County. Construction is not slated to
begin until 2036. The opening date for
the project is not stated in the longrange plan. Belomar, the metropolitan
planning organization for the area, will
have to consider the potential impacts
of this project on air quality in the area
when it makes transportation
conformity determinations for the 1997
ozone NAAQS. However, with respect
5 https://transportation.wv.gov/highways/
programming/STIP/Pages/default.aspx.
6 https://www.belomar.org/wordpress/wpcontent/uploads/2016/07/bomts-lrp-2040-finaldocument.pdf.
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to the commenter’s request that
compensating emissions reductions be
obtained for any emissions increases
that this project may eventually cause,
there is no mechanism under the CAA
that requires such compensating
emissions reductions as part of a
maintenance plan. In order to approve
the second maintenance plan for the
area, the plan must demonstrate that the
area will be able to remain in attainment
of the 1997 ozone NAAQS through
2027. We have reviewed the second
maintenance plan and for the reasons
stated in this final rule and in the
proposal, we have concluded that the
second maintenance plan is approvable.
85 FR 38831 (June 29, 2020).
Comment 2: The commenter claims
that the second maintenance plan
should be rejected because ‘‘EPA has
not evaluated the loss in emission
reductions’’ due to certain policy
positions taken by the Trump
administration related to ‘‘. . . the
CAFE 7 standards, biofuel blending
requirements and removing States’ and
California’s ability to set standards.’’
The commenter asserts that West
Virginia failed to use ‘‘reduced emission
standards’’ in the mobile source
evaluation. The commenter contends
that West Virginia ‘‘uses assumptions
that are against EPA’s stated policy
under the New Source Performance
Standards (NSPS) and the National
Emission Standards for Hazardous
Pollutants (NESHAP)’’ and therefore,
the plan should be rejected. Further, the
commenter takes issue that ‘‘Recently
EPA has announced protections under
the mercury and air toxic standards
(MATS) rule and the Boiler maximum
achievable control technology (MACT)
rule,’’ and due to the removal of these
programs, ‘‘EPA should require states to
use those planning assumptions and
account for any lost emissions
reductions achieved by those
programs.’’
Response 2: It is unclear from the
comment how or why the commenter
believes the particular policies cited are
relevant to this action. For example,
biofuel blending requirements are not
relevant to ozone reductions, and
neither West Virginia nor Ohio has
adopted California’s light duty vehicle
emission standards, and therefore,
neither state is impacted by the
withdrawal of California’s waiver for its
zero emission vehicle sales mandate and
its greenhouse gas emissions standards.8
The change to the National Highway
7 Corporate
Average Fuel Economy (CAFE).
84 FR 51310, September 27, 2019. The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule Part
One: One National Program.
8 See
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Traffic Safety Administration’s
(NHTSA) corporate average fuel
economy rules and EPA’s greenhouse
gas emissions standards did not affect
EPA’s Tier 3 vehicle and fuel
regulation.9 Therefore, new vehicles
continue to be required to be certified to
the Tier 3 emissions standards for
nitrogen oxides (NOX) and volatile
organic compounds (VOCs). Neither of
the Safer Affordable Fuel-Efficient
(SAFE) rulemakings affected emissions
from the existing vehicle fleet. For the
reasons stated in the NPRM, we disagree
with alleged deficiencies in evaluating
mobile sources.
We also do not agree with the
commenter’s contentions about West
Virginia using ‘‘assumptions that are
against EPA’s stated policy under NSPS
and NESHAP,’’ or that EPA should
require West Virginia to address the
removal of protections the commenter
alleges EPA has made under the MATS
and Boiler MACT rules. The commenter
does not identify how any NSPS or
NESHAP ‘‘policies’’ impact this action,
or which policies, NESHAPs or NSPS
the commenter believes are relevant to
this action. With respect to MATS and
the Boiler MACT, the commenter
incorrectly assumes that protections
under those rules have been ‘‘removed.’’
In a 2020 rulemaking, EPA found that it
was not ‘‘appropriate and necessary’’ to
regulate hazardous air pollutants (HAP)
emissions from coal- and oil-fired
Electrical Generating Units (EGUs),
thereby reversing the Agency’s previous
conclusion under CAA section
112(n)(1)(A). 85 FR 31286 (May 22,
2020). This action did not, however,
remove the EGUs covered by MATS
from regulation. EPA explicitly stated
that coal- and oil-fired EGUs would
remain on the CAA section 112(c)(1)
source category list, and that the CAA
section 112(d) standards for those EGUs,
as promulgated in the MATS rule,
would be unaffected by its reversal of
the ‘‘appropriate and necessary’’ finding
because EPA had not met the statutorily
required CAA section 112(c)(9) delisting
criteria to remove these units from
regulation. 85 FR at 31286 (May 22,
2020).10 The commenter is therefore
incorrect that there has been any
‘‘removal of protections’’ with respect to
the emission limits required under the
9 See 85 FR 24174, April 30, 2020. The Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule for
Model Years 2021–2026 Passenger Cars and Light
Trucks.
10 We note also that the 2020 rulemaking has been
challenged in the Court of Appeals for the District
of Columbia and has also been identified by
President Biden’s January 20, 2021 Executive Order
as an action that EPA should propose to review,
revise, or rescind by August 2021.
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MATS rule. Similarly, although EPA has
proposed certain changes to the Boiler
MACT in response to a court decision,11
those proposed changes have not been
finalized to date. Therefore, the
environmental protections of neither the
MATS rule nor the Boiler MACT rule
have been removed or decreased. EPA
therefore disagrees with the commenter
that this plan should be disapproved
because of WVDEP’s failure to address,
in a plan designed to maintain an ozone
standard, the CAA programs and
policies referenced by the commenter.
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 the 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,
but the commenter ignores that EPA’s
primary basis for finding that West
Virginia has provided for maintenance
of the 1997 ozone NAAQS in the
Wheeling Area is the State’s
demonstration that the criteria for a
limited maintenance plan has been met.
See 85 FR 38831, 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
11 85
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FR 52198 (August 24, 2020).
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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 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 above,
West Virginia primarily met the
requirement to demonstrate
maintenance of the NAAQS by showing
that they met the criteria for a limited
maintenance plan, 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 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
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is stringency. Taking the Wheeling
Area’s most recent certified design value
as of the proposal (i.e., for the years
2016–2018), the area’s design value was
0.066 parts per million (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 Wheeling
Area’s design value is projected to be
0.067 ppm,12 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.13 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 commenter 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 181.14 Contrary to the
commenter’s suggestion, the D.C. Circuit
upheld EPA’s air quality modeling TSD
12 The June 29, 2020 NPRM for this action recited
0.060 ppm as the Projected 2023 design value in
Table 2—Wheeling Area 8-hour Ozone Design
Value in Part Per Million. Through this final action
we clarify that the correct Projected 2023 design
value that was included in the State’s submission,
is 0.067 ppm. The inclusion of the slightly higher
but incorrect figure in the NPRM is a harmless error
that does not alter EPA’s approval of this LMP.
13 Wisconsin, 938 F.3d 303 (D.C. Cir. 2019).
14 Wisconsin, 938 F.3d at 313.
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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 Wheeling
Area will maintain the 1997 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 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 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 CrossState Air Pollution Rule and the CSAPR
Update—remains in place and
continues to ensure emission reductions
of 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.
15 Wisconsin,
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938 F.3d at 323–331.
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IV. Final Action
EPA is approving the 1997 ozone
NAAQS limited maintenance plan for
the Wheeling, WV-OH area comprising
Marshall and Ohio 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);
• 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).
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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.
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 Wheeling, WV-OH Area Comprising Marshall and Ohio Counties.
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 210325–0069]
RIN 0648–BK45
jbell on DSKJLSW7X2PROD with RULES
Sea Turtle Conservation; Shrimp
Trawling Requirements
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; delay of effective
date.
15:38 Mar 30, 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.
Frm 00010
Fmt 4700
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 Wheeling, WV–OH Area
Comprising Marshall and Ohio
Counties’’ at the end of the table to read
as follows:
■
§ 52.2520
*
Identification of plan.
*
*
(e) * * *
EPA approval date
12/10/19
*
*
3/31/21, [insert Federal
Register citation].
We, the NMFS, are delaying
the effective date of a final rule that
published on December 20, 2019.
DATES: As of March 31, 2021, the
effective date of the rule amending 50
CFR part 223 that published at 84 FR
70048 on December 20, 2019, is delayed
until August 1, 2021.
FOR FURTHER INFORMATION CONTACT:
Jennifer Lee, NMFS Southeast Regional
Office, telephone: 727–824–5312, or
email: jennifer.lee@noaa.gov.
SUPPLEMENTARY INFORMATION: On
December 20, 2019, we published a final
rule to amend the alternative tow time
restriction to require all skimmer trawl
vessels 40 feet and greater in length to
use turtle excluder devices (TEDs)
designed to exclude small sea turtles in
their nets, and that rule had an effective
date of April 1, 2021 (84 FR 70048). The
final rule amends regulations at 50 CFR
part 223 under the authority of the
Endangered Species Act. The purpose of
the final rule is to reduce incidental
PO 00000
For the reasons stated in the
preamble, the EPA amends 40 CFR part
52 as follows:
State
submittal
date
SUMMARY:
DEPARTMENT OF COMMERCE
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 June 1, 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 Wheeling, WV-OH area comprising
Marshall and Ohio Counties may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
*
*
Wheeling WV-OH, West
Virginia Area Comprising
Marshall and Ohio Counties.
BILLING CODE 6560–50–P
AGENCY:
C. Petitions for Judicial Review
Applicable geographic area
[FR Doc. 2021–06523 Filed 3–30–21; 8:45 am]
Dated: March 25, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Sfmt 4700
*
*
Additional
explanation
*
bycatch and mortality of sea turtles in
the southeastern U.S. shrimp fisheries,
and to aid in the protection and
recovery of listed sea turtle populations.
The rule also amends the definition of
tow time to better clarify the intent and
purpose of tow times to reduce sea
turtle mortality, and it refines additional
portions of the TED requirements to
avoid potential confusion. We delayed
the effectiveness of the final rule until
April 1, 2021, to allow for the
manufacture of the necessary number of
TEDs and for fishers, particularly lower
income fishers, to prepare financially
for the regulation.
We typically conduct outreach on
changes to TED regulations through inperson industry workshops and trade
shows, dockside and net shop visits,
and enforcement trainings. In our final
rule we stated that we would be
scheduling and announcing future TED
training workshops. We also distributed
a Fishery Bulletin to industry
E:\FR\FM\31MRR1.SGM
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Agencies
[Federal Register Volume 86, Number 60 (Wednesday, March 31, 2021)]
[Rules and Regulations]
[Pages 16672-16676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06523]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2020-0198; FRL-10022-11-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 Wheeling, WV-OH Area Comprising Marshall and
Ohio Counties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the 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 Wheeling, WV-OH
area (Wheeling Area) comprising Marshall and Ohio 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 April 30, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2020-0198. 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 38831), 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
ozone NAAQS through June 14, 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 15, 2007 (72 FR 27247, effective June 14, 2007), EPA
approved a redesignation request (and maintenance plan) from WVDEP for
the Wheeling 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 (South Coast II),\1\ the D.C. Circuit held
that this requirement cannot be waived for areas, like the Wheeling
Area, that had been redesignated to attainment for the 1997 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
[[Page 16673]]
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 values \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 Wheeling, WV-OH Area comprising Marshall
and Ohio Counties as a revision to the West Virginia SIP. The effect of
this action makes certain commitments related to the maintenance of the
1997 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
III. EPA's Response to Comments Received
EPA received four comments on the June 29, 2020 NPRM. 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 alleges that the plan should not be
approved due to the allowance of future expansion of Interstate 70 (I-
70) within Ohio County in West Virginia and Belmont County in Ohio from
a West Virginia ``transportation conformity plan.'' The commenter takes
issue that the ``transportation conformity plan'' will allow more
vehicles to use the highway, hence increasing the vehicle miles
traveled (VMT) and the mobile source emissions. The commenter claims
that ``EPA should require WV to compensate'' for the increase in VMT
arising from the future expansion project and suggests that this could
be evaluated by utilizing ``actual VMT data collected on I-70'' in the
motor vehicle emission simulator (MOVES) modeling and the modeling
``will show an increase in mobile source emissions in the area beyond
that shown in WV's plan.''
Response 1: EPA does not agree with the commenter that the plan
should not be approved for the reasons given in the comment. The
commenter did not identify a specific project that would expand the I-
70 as it exists today. In an effort to identify the project that the
commenter referred to, we reviewed West Virginia's current statewide
transportation improvement program (STIP) and the current long-range
transportation plan for the West Virginia portion of the Wheeling
metropolitan area which includes Marshall and Ohio Counties. We could
not identify any I-70 expansion projects in the STIP.\5\ We did
identify several bridge rehabilitation projects on I-70, but these
would not constitute highway expansion projects and would not result in
increased vehicle miles traveled. We did identify one highway expansion
project in the area's long-range transportation plan.\6\ That project
would upgrade I[hyphen]70 to six lanes from Elm Grove/Triadelphia
interchange to Cabela Drive in Ohio County. Construction is not slated
to begin until 2036. The opening date for the project is not stated in
the long-range plan. Belomar, the metropolitan planning organization
for the area, will have to consider the potential impacts of this
project on air quality in the area when it makes transportation
conformity determinations for the 1997 ozone NAAQS. However, with
respect to the commenter's request that compensating emissions
reductions be obtained for any emissions increases that this project
may eventually cause, there is no mechanism under the CAA that requires
such compensating emissions reductions as part of a maintenance plan.
In order to approve the second maintenance plan for the area, the plan
must demonstrate that the area will be able to remain in attainment of
the 1997 ozone NAAQS through 2027. We have reviewed the second
maintenance plan and for the reasons stated in this final rule and in
the proposal, we have concluded that the second maintenance plan is
approvable. 85 FR 38831 (June 29, 2020).
---------------------------------------------------------------------------
\5\ https://transportation.wv.gov/highways/programming/STIP/Pages/default.aspx.
\6\ https://www.belomar.org/wordpress/wp-content/uploads/2016/07/bomts-lrp-2040-final-document.pdf.
---------------------------------------------------------------------------
Comment 2: The commenter claims that the second maintenance plan
should be rejected because ``EPA has not evaluated the loss in emission
reductions'' due to certain policy positions taken by the Trump
administration related to ``. . . the CAFE \7\ standards, biofuel
blending requirements and removing States' and California's ability to
set standards.'' The commenter asserts that West Virginia failed to use
``reduced emission standards'' in the mobile source evaluation. The
commenter contends that West Virginia ``uses assumptions that are
against EPA's stated policy under the New Source Performance Standards
(NSPS) and the National Emission Standards for Hazardous Pollutants
(NESHAP)'' and therefore, the plan should be rejected. Further, the
commenter takes issue that ``Recently EPA has announced protections
under the mercury and air toxic standards (MATS) rule and the Boiler
maximum achievable control technology (MACT) rule,'' and due to the
removal of these programs, ``EPA should require states to use those
planning assumptions and account for any lost emissions reductions
achieved by those programs.''
---------------------------------------------------------------------------
\7\ Corporate Average Fuel Economy (CAFE).
---------------------------------------------------------------------------
Response 2: It is unclear from the comment how or why the commenter
believes the particular policies cited are relevant to this action. For
example, biofuel blending requirements are not relevant to ozone
reductions, and neither West Virginia nor Ohio has adopted California's
light duty vehicle emission standards, and therefore, neither state is
impacted by the withdrawal of California's waiver for its zero emission
vehicle sales mandate and its greenhouse gas emissions standards.\8\
The change to the National Highway
[[Page 16674]]
Traffic Safety Administration's (NHTSA) corporate average fuel economy
rules and EPA's greenhouse gas emissions standards did not affect EPA's
Tier 3 vehicle and fuel regulation.\9\ Therefore, new vehicles continue
to be required to be certified to the Tier 3 emissions standards for
nitrogen oxides (NOX) and volatile organic compounds (VOCs).
Neither of the Safer Affordable Fuel-Efficient (SAFE) rulemakings
affected emissions from the existing vehicle fleet. For the reasons
stated in the NPRM, we disagree with alleged deficiencies in evaluating
mobile sources.
---------------------------------------------------------------------------
\8\ See 84 FR 51310, September 27, 2019. The Safer Affordable
Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program.
\9\ See 85 FR 24174, April 30, 2020. The Safer Affordable Fuel-
Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger
Cars and Light Trucks.
---------------------------------------------------------------------------
We also do not agree with the commenter's contentions about West
Virginia using ``assumptions that are against EPA's stated policy under
NSPS and NESHAP,'' or that EPA should require West Virginia to address
the removal of protections the commenter alleges EPA has made under the
MATS and Boiler MACT rules. The commenter does not identify how any
NSPS or NESHAP ``policies'' impact this action, or which policies,
NESHAPs or NSPS the commenter believes are relevant to this action.
With respect to MATS and the Boiler MACT, the commenter incorrectly
assumes that protections under those rules have been ``removed.'' In a
2020 rulemaking, EPA found that it was not ``appropriate and
necessary'' to regulate hazardous air pollutants (HAP) emissions from
coal- and oil-fired Electrical Generating Units (EGUs), thereby
reversing the Agency's previous conclusion under CAA section
112(n)(1)(A). 85 FR 31286 (May 22, 2020). This action did not, however,
remove the EGUs covered by MATS from regulation. EPA explicitly stated
that coal- and oil-fired EGUs would remain on the CAA section 112(c)(1)
source category list, and that the CAA section 112(d) standards for
those EGUs, as promulgated in the MATS rule, would be unaffected by its
reversal of the ``appropriate and necessary'' finding because EPA had
not met the statutorily required CAA section 112(c)(9) delisting
criteria to remove these units from regulation. 85 FR at 31286 (May 22,
2020).\10\ The commenter is therefore incorrect that there has been any
``removal of protections'' with respect to the emission limits required
under the MATS rule. Similarly, although EPA has proposed certain
changes to the Boiler MACT in response to a court decision,\11\ those
proposed changes have not been finalized to date. Therefore, the
environmental protections of neither the MATS rule nor the Boiler MACT
rule have been removed or decreased. EPA therefore disagrees with the
commenter that this plan should be disapproved because of WVDEP's
failure to address, in a plan designed to maintain an ozone standard,
the CAA programs and policies referenced by the commenter.
---------------------------------------------------------------------------
\10\ We note also that the 2020 rulemaking has been challenged
in the Court of Appeals for the District of Columbia and has also
been identified by President Biden's January 20, 2021 Executive
Order as an action that EPA should propose to review, revise, or
rescind by August 2021.
\11\ 85 FR 52198 (August 24, 2020).
---------------------------------------------------------------------------
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 the 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, but the commenter ignores that EPA's primary basis
for finding that West Virginia has provided for maintenance of the 1997
ozone NAAQS in the Wheeling Area is the State's demonstration that the
criteria for a limited maintenance plan has been met. See 85 FR 38831,
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 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 above, West Virginia primarily met the requirement to demonstrate
maintenance of the NAAQS by showing that they met the criteria for a
limited maintenance plan, 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 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
[[Page 16675]]
is stringency. Taking the Wheeling Area's most recent certified design
value as of the proposal (i.e., for the years 2016-2018), the area's
design value was 0.066 parts per million (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 Wheeling Area's design value is
projected to be 0.067 ppm,\12\ 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).
---------------------------------------------------------------------------
\12\ The June 29, 2020 NPRM for this action recited 0.060 ppm as
the Projected 2023 design value in Table 2--Wheeling Area 8-hour
Ozone Design Value in Part Per Million. Through this final action we
clarify that the correct Projected 2023 design value that was
included in the State's submission, is 0.067 ppm. The inclusion of
the slightly higher but incorrect figure in the NPRM is a harmless
error that does not alter EPA's approval of this LMP.
---------------------------------------------------------------------------
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.\13\ 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 commenter 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.\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 Wheeling Area
will maintain the 1997 ozone NAAQS through the end of its 20th-year
maintenance period is appropriate.
---------------------------------------------------------------------------
\13\ Wisconsin, 938 F.3d 303 (D.C. Cir. 2019).
\14\ Wisconsin, 938 F.3d at 313.
\15\ Wisconsin, 938 F.3d at 323-331.
---------------------------------------------------------------------------
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 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 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 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 ozone NAAQS limited maintenance plan for
the Wheeling, WV-OH area comprising Marshall and Ohio 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);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
[[Page 16676]]
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 June 1, 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 Wheeling, WV-OH area comprising Marshall and Ohio 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: March 25, 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 Wheeling,
WV-OH Area Comprising Marshall and Ohio 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 Wheeling WV-OH, West 12/10/19 3/31/21, [insert ...................
Ambient Air Quality Standard Virginia Area Federal Register
Second Maintenance Plan for the Comprising Marshall citation].
West Virginia Portion of the and Ohio Counties.
Wheeling, WV-OH Area Comprising
Marshall and Ohio Counties.
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[FR Doc. 2021-06523 Filed 3-30-21; 8:45 am]
BILLING CODE 6560-50-P