[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Rules and Regulations]
[Pages 47062-47068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19692]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0157; FRL-9447-6]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Section 110(a)(2) Infrastructure Requirements for the 
1997 8-Hour Ozone and the 1997 and 2006 Fine Particulate Matter 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the State of West Virginia 
pursuant to the Clean Air Act (CAA) sections 110(k)(2) and (3). These 
submittals address the infrastructure elements specified in the CAA 
section 110(a)(2), necessary to implement, maintain, and enforce the 
1997 8-hour ozone and fine particulate matter (PM2.5) 
national ambient air quality standards (NAAQS) and the 2006 
PM2.5 NAAQS. This final rule is limited to the following 
infrastructure elements which were subject to EPA's completeness 
findings pursuant to CAA section 110(k)(1) for the 1997 8-hour ozone 
NAAQS dated March 27, 2008 and the 1997 PM2.5 NAAQS dated 
October 22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M), or portions thereof.

DATES: Effective Date: This final rule is effective on September 6, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0157. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, 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 electronically through http://www.regulations.gov or in hard copy for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103. Copies of the State submittal are available at the 
West Virginia Department of Environmental Protection, Division of Air 
Quality, 601

[[Page 47063]]

57th Street SE, Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk, (215) 814-2166, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background

    On May 17, 2010 (75 FR 27510), EPA published a notice of proposed 
rulemaking (NPR) for the State of West Virginia. The NPR proposed 
approval of West Virginia's submittals that provide the basic program 
elements specified in the CAA section 110(a)(2)(A), (B), (C), (D)(ii), 
(E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, 
necessary to implement, maintain, and enforce the 1997 8-hour ozone and 
PM2.5 NAAQS and the 2006 PM2.5 NAAQS. The formal 
submittals by the State of West Virginia on December 3, 2007, May 21, 
2008, and October 1, 2009 addressed the section 110(a)(2) requirements 
for the 1997 8-hour ozone NAAQS; the submittals dated April 3, 2008, 
May 21, 2008, October 1, 2009, and March 18, 2010 addressed the section 
110(a)(2) requirements for the 1997 PM2.5 NAAQS; and the 
submittals dated October 1, 2009 and March 18, 2010 addressed the 
section 110(a)(2) requirements for the 2006 PM2.5 NAAQS.

II. Scope of Action on Infrastructure Submissions

    EPA is currently acting upon State Implementation Plans (SIPs) that 
address the infrastructure requirements of CAA section 110(a)(1) and 
(2) for the ozone and PM2.5 NAAQS for various states across 
the country. Commenters on EPA's recent proposals for some states 
raised concerns about EPA statements that it was not addressing certain 
substantive issues in the context of acting on those infrastructure SIP 
submissions.\1\ Those commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction (SSM) at sources, that may be contrary to the 
CAA and EPA's policies addressing such excess emissions; and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA. EPA notes that there 
are two other substantive issues for which EPA likewise stated in other 
proposals that it would address the issues separately: (i) Existing 
provisions for minor source new source review programs that may be 
inconsistent with the requirements of the CAA and EPA's regulations 
that pertain to such programs (``minor source NSR'') and (ii) existing 
provisions for Prevention of Significant Deterioration programs that 
may be inconsistent with current requirements of EPA's ``Final NSR 
Improvement Rule,'' (67 FR 80186, December 31, 2002), as amended by the 
NSR Reform Rule (72 FR 32526, June 13, 2007) (NSR Reform). In light of 
the comments, EPA now believes that its statements in various proposed 
actions on infrastructure SIPs with respect to these four individual 
issues should be explained in greater depth.
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    \1\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply. EPA did receive specific 
adverse comments in this action that are discussed in more detail in 
section IV.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational and to provide general notice of 
the potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that EPA's approval of the infrastructure SIP submission 
of a given state should be interpreted as a reapproval of certain types 
of provisions that might exist buried in the larger existing SIP for 
such state. Thus, for example, EPA explicitly noted that we believe 
that some states may have existing SIP approved SSM provisions that are 
contrary to the CAA and EPA policy, but that ``in this rulemaking, EPA 
is not proposing to approve or disapprove any existing State provisions 
with regard to excess emissions during SSM of operations at 
facilities.'' EPA further explained, for informational purposes, that 
``EPA plans to address such State regulations in the future.'' EPA made 
similar statements, for similar reasons, with respect to the director's 
discretion, minor source NSR, and NSR Reform issues. EPA's objective 
was to make clear that approval of an infrastructure SIP for these 
ozone and PM2.5 NAAQS should not be construed as explicit or 
implicit reapproval of any existing provisions that relate to these 
four substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issue in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those proposals, however, we want to explain more 
fully EPA's reasons for concluding that these four potential 
substantive issues in existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP''

[[Page 47064]]

submissions required to address the nonattainment planning requirements 
of part D, ``regional haze SIP'' submissions required to address the 
visibility protection requirements of CAA section 169A, new source 
review permitting program submissions required to address the 
requirements of part D, and a host of other specific types of SIP 
submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\2\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\3\
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    \2\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' (70 FR 
25162, May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\4\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because EPA bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\5\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be very 
different than what might be necessary for a different pollutant. Thus, 
the content of an infrastructure SIP submission to meet this element 
from a state might be very different for an entirely new NAAQS, versus 
a minor revision to an existing NAAQS.\6\
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    \4\ See, e.g., Id., (70 FR 25162, at 63-65, May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \5\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\7\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
EPA characterized as the ``infrastructure'' elements for SIPs, which it 
further described as the ``basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the standards.'' \8\ As further identification of these 
basic structural SIP requirements, ``attachment A'' to the guidance 
document included a short description of the various elements of 
section 110(a)(2) and additional information about the types of issues 
that EPA considered germane in the context of such infrastructure SIPs. 
EPA emphasized that the description of the basic requirements listed on 
attachment A was not intended ``to constitute an interpretation of'' 
the requirements and was merely a ``brief description of the

[[Page 47065]]

required elements.'' \9\ EPA also stated its belief that with one 
exception, these requirements were ``relatively self explanatory, and 
past experience with SIPs for other NAAQS should enable states to meet 
these requirements with assistance from EPA Regions.'' \10\ For the one 
exception to that general assumption, however, i.e., how states should 
proceed with respect to the requirements of section 110(a)(2)(G) for 
the 1997 PM2.5 NAAQS, EPA gave much more specific 
recommendations. But for other infrastructure SIP submittals, and for 
certain elements of the submittals for the 1997 PM2.5 NAAQS, 
EPA assumed that each state would work with its corresponding EPA 
regional office to refine the scope of a state's submittal based on an 
assessment of how the requirements of section 110(a)(2) should 
reasonably apply to the basic structure of the state's SIP for the 
NAAQS in question.
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    \7\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \8\ Id., at page 2.
    \9\ Id., at attachment A, page 1.
    \10\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\11\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS.
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    \11\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
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    Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred to the SSM, director's discretion, minor source 
NSR, or NSR Reform issues as among specific substantive issues EPA 
expected states to address in the context of the infrastructure SIPs, 
nor did EPA give any more specific recommendations with respect to how 
states might address such issues even if they elected to do so. The SSM 
and director's discretion issues implicate section 110(a)(2)(A), and 
the minor source NSR and NSR Reform issues implicate section 
110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to 
states that it intended to interpret these provisions as requiring a 
substantive submission to address these specific issues in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's other proposals mentioned these 
issues not because EPA considers them issues that must be addressed in 
the context of an infrastructure SIP as required by section 110(a)(1) 
and (2), but rather because EPA wanted to be clear that it considers 
these potential existing SIP problems as separate from the pending 
infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever EPA determines that a state's SIP is substantially 
inadequate to attain or maintain the NAAQS, to mitigate interstate 
transport, or otherwise to comply with the CAA.\12\ Section 110(k)(6) 
authorizes EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\13\ Significantly, EPA's determination 
that an action on the infrastructure SIP is not the appropriate time 
and place to address all potential existing SIP problems does not 
preclude EPA's subsequent reliance on provisions in section 110(a)(2) 
as part of the basis for action at a later time. For example, although 
it may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may 
be among the statutory bases that EPA cites in the course of addressing 
the issue in a subsequent action.\14\
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    \12\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' (74 FR 21639, April 18, 2011).
    \13\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas-Emitting Sources in State 
Implementation Plans; Final Rule,'' (75 FR 82536, Dec. 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that EPA determined it had approved in 
error. See, e.g., (61 FR 38664, July 25, 1996) and (62 FR 34641, 
June 27, 1997) (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); (69 FR 67062, November 16, 2004) 
(corrections to California SIP); and (74 FR 57051, November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \14\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., (75 FR 42342-42344, July 21, 2010) 
(proposed disapproval of director's discretion provisions); (76 FR 
4540, Jan. 26, 2011) (final disapproval of such provisions).
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    EPA's proposed approval of the infrastructure SIP submissions from 
West Virginia predated the actions on the submissions of other states 
and thus occurred before EPA decided to provide the informational 
statements concerning the SSM, director's discretion, minor source NSR, 
and NSR Reform issues as specific substantive issues that EPA was not 
addressing in this context. However, EPA determined that these four 
issues

[[Page 47066]]

should be addressed, as appropriate, separately from the action on the 
infrastructure SIPs for this state for the same reasons. Given this 
determination, EPA did not address these substantive issues in the 
prior proposals. Accordingly, EPA emphasizes that today's action should 
not be construed as a reapproval of any potential problematic 
provisions related to these substantive issues that may be buried 
within the existing SIP of this state. To the extent that there is any 
such existing problematic provision that EPA determines should be 
addressed, EPA plans to address such provisions in the future. In the 
meantime, EPA encourages any state that may have a deficient provision 
related to these issues to take steps to correct it as soon as 
possible.

III. Summary of SIP Revision

    The submittals referenced in the Background section above address 
the infrastructure elements specified in the CAA section 110(a)(2). 
These submittals refer to the implementation, maintenance, and 
enforcement of the 1997 8-hour ozone, the 1997 PM2.5 NAAQS, 
and the 2006 PM2.5 NAAQS. The rationale supporting EPA's 
proposed action is explained in the NPR and the technical support 
document (TSD) and will not be restated here. EPA is also revising the 
portion of the TSD relating to section 110(a)(2)(D)(ii) in order to 
provide a more accurate and detailed explanation of the rationale 
supporting EPA's approval. The TSD is available online at http://www.regulations.gov, Docket number EPA-R03-OAR-2010-0157. Finally, on 
June 16, 2010, EPA received comments on its May 17, 2010 NPR. A summary 
of the comments submitted and EPA's responses are provided in Section 
IV of this document.

IV. Summary of Public Comments and EPA Responses

    Comment: The commenter objected generally to EPA's proposed 
approval of the infrastructure SIP submissions on the grounds that the 
existing West Virginia SIP contains provisions addressing excess 
emissions during periods of SSM that do not meet the requirements of 
the CAA. The commenter argued that even though the SIP revision that 
EPA proposed to approve in this action did not contain the provisions 
to which the commenter objects, the presence of existing startup, 
shutdown, and malfunction provisions in West Virginia's SIP that are 
contrary to the CAA compromise the State's ability to ensure compliance 
with the PM2.5 and ozone NAAQS. The commenter specifically 
objected to EPA's proposed approval because of existing provisions of 
the West Virginia SIP that pertain to opacity limits applicable to 
certain indirect heat exchanger sources. According to the commenter, 
these provisions allow exceedences of the otherwise applicable opacity 
standards during SSM events.
    Response: EPA disagrees with the commenter's view that if a state's 
existing SIP contains any arguably illegal existing SSM provision, then 
EPA cannot approve the infrastructure SIP submission of that state. As 
discussed in more detail in section II of this final rulemaking, EPA 
does not agree that an action upon the infrastructure SIP required by 
section 110(a)(1) and (2) requires that EPA address any existing SSM 
provisions.
    EPA shares the commenter's concerns that certain existing SSM 
provisions may be contrary to the CAA and existing EPA guidance, and 
that such provisions can have an adverse impact on air quality control 
efforts in a given state. EPA plans to address such provisions in the 
future, as appropriate, and in the meantime encourages any state having 
a deficient SSM provision to take steps to correct it as soon as 
possible. EPA is not evaluating the merits of the commenter's claims 
with respect to the particular provisions identified in the comments in 
this action because EPA considers these to be beyond the scope of this 
action.
    Comment: The commenter also objected to EPA's proposed approval of 
the infrastructure SIP submission because of existing provisions of the 
West Virginia SIP that pertain to opacity standards applicable to hot 
mix asphalt sources. According to the commenter, these provisions 
enable the sources to have higher opacity during SSM events and that 
such provisions do not meet EPA guidance with respect to such higher 
limits in order to minimize excess emissions. The commenter argued that 
because the emissions limits at issue are part of the existing SIP, the 
state should be required to remove the provisions unless they meet 
certain criteria.
    Response: As stated in the previous response, EPA disagrees with 
the commenter's view that if a state's existing SIP contains any 
arguably illegal existing SSM provision, then EPA cannot approve the 
infrastructure SIP submission of that state. As discussed in more 
detail in section II of this final rulemaking, EPA does not agree that 
an action upon the infrastructure SIP required by section 110(a)(1) and 
(2) requires that EPA address any existing SSM provisions.
    EPA is not evaluating the merits of the commenter's claims with 
respect to the particular provisions identified in the comments in this 
action because EPA considers these to be beyond the scope of this 
action.
    Comment: The commenter asserted that the existing West Virginia SIP 
needs to be strengthened with respect to specific ``affirmative 
defense'' provisions applicable to indirect heat exchanger sources 
during malfunctions. The commenter stated that the provisions in 
question conform to EPA guidance ``in some respects,'' but argued that 
the provisions do not meet all of the recommendations of EPA guidance 
and provided its views as to how the provisions should be revised. The 
commenter argued that such provisions are necessary to ``ensure 
compliance with the PM2.5 NAAQS.''
    Response: EPA disagrees with the commenter's view that if a state's 
existing SIP contains any arguably illegal existing SSM provision, 
including a provision that includes an ``affirmative defense'' during 
malfunctions that may not fully comply with EPA's policy for such 
defenses, then EPA cannot approve the infrastructure SIP submission of 
that state. As discussed in more detail in section IV of this final 
rulemaking, EPA does not agree that an action upon the infrastructure 
SIP required by section 110(a)(1) and (2) requires that EPA address any 
existing SSM provisions. This would include reviewing any affirmative 
defense provisions that relate to excess emissions during SSM events. 
EPA is not evaluating the merits of the commenter's claims with respect 
to the particular provisions identified in the comments in this action 
because EPA considers these to be beyond the scope of this action.
    Comment: In addition to more general concerns about the impacts of 
excess emissions during SSM events, the commenter specifically 
expressed concern that such emissions could have impacts contrary to 
the CAA ``whether in the State of West Virginia, or elsewhere 
downwind.'' Thus, the commenter argued that such provisions would be 
contrary to both section ``110(a)(2)(A) and (D).'' EPA presumes that 
the commenter's reference to ``D'' was intended to be a reference to 
the interstate transport provisions of section 110(a)(2)(D)(i)(I), 
given the context of the statements about impacts of emissions on 
attainment of the NAAQS in other states.
    Response: EPA disagrees with the commenter's assertion. First, as 
was explained in the proposed action, EPA is not addressing the 
requirement of

[[Page 47067]]

section 110(a)(D)(i) in these actions. Therefore, the comment is not 
germane to this action. Second, the commenter did not provide support 
for the contention that excess emissions during such events do have the 
impacts on other states prohibited by section 110(a)(2)(D)(i). At this 
time, EPA does not have information indicating that such excess 
emissions could have such impacts on any areas. Absent information 
indicating such impacts, EPA believes that there is no factual basis 
for the commenter's contention.

V. Final Action

    EPA is approving the State of West Virginia's submittals that 
provide the basic program elements specified in the CAA sections 
110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and 
(M), or portions thereof, necessary to implement, maintain, and enforce 
the 1997 8-hour ozone and PM2.5 NAAQS and the 2006 
PM2.5 NAAQS to West Virginia's SIP.
    EPA made completeness findings for the 1997 8-hour ozone NAAQS on 
March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for 
the 1997 PM2.5 NAAQS. These findings pertained only to 
whether the submissions were complete, pursuant to section 
110(k)(1)(A), and did not constitute EPA approval or disapproval of 
such submissions. The March 27, 2008 (73 FR 16205) action made a 
completeness finding that the West Virginia submittals of December 3, 
2007 and April 3, 2008 addressed some but not all of the 110(a)(2) 
requirements. Specifically, EPA found that West Virginia failed to 
address sections 110(a)(2)(B), (E)(i), (G) (with respect to authority 
comparable to section 303), (H) and (J) (relating to public 
notification under section 127), (M), and Part C PSD permit program 
required by the November 29, 2005 (70 FR 71612, page 71699) final rule 
that made nitrogen oxides (NOX) a precursor for ozone in the 
Part C regulations found in 40 CFR 51.166 and in 40 CFR 52.21. The May 
21, 2008 West Virginia submittal, described above and in the technical 
support document, addressed these findings, with the exception of the 
Part C PSD.
    EPA has taken separate action on the portions of section 
110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS as they relate to 
West Virginia's PSD permit program. With respect to this permit 
program, on November 29, 2005 (70 FR 71612), EPA promulgated a change 
that made NOX a precursor for ozone in the Part C 
regulations at 40 CFR 51.166 and 40 CFR 52.21. In the March 27, 2008 
completeness findings, EPA determined that while West Virginia had an 
approved PSD program in its SIP codified at 40 CFR 52.2520, West 
Virginia's regulation, 45CSR14, did not fully incorporate 
NOX as a precursor for ozone. On July 20, 2009, West 
Virginia submitted revisions to 45CSR14 to include NOX as a 
precursor for ozone. EPA has approved this PSD SIP revision and element 
110(a)(2)(C) as it pertains to the PSD permit program for the 1997 8-
hour ozone NAAQS was addressed in this separate action. A notice of 
proposed rulemaking was published on December 17, 2010 (75 FR 78949) 
and a final rulemaking notice was published on May 27, 2011 (76 FR 
30832).
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the time the nonattainment area plan requirements are 
due pursuant to section 172. These elements are: (i) Submissions 
required by section 110(a)(2)(C) to the extent that subsection pertains 
to a permit program in Part D Title I of the CAA; and (ii) any 
submissions required by section 110(a)(2)(I), which pertain to the 
nonattainment planning requirements of Part D Title I of the CAA. This 
action does not cover these specific elements. This action also does 
not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-
hour ozone and PM2.5 NAAQS and the 2006 PM2.5 
NAAQS. A portion of these 110(a)(2)(D)(i) requirements have been 
addressed by separate findings issued by EPA (see (70 FR 21147, April 
25, 2005); (75 FR 32673, June 9, 2010); and (75 FR 45210, August 2, 
2010)). A portion of these requirements are addressed through 110(a)(2) 
SIP submittals, which EPA will be addressing through separate action.

VI. 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 Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate,

[[Page 47068]]

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 October 3, 2011. 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 section 110(a)(2) 
infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS, may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: July 22, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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 
entries at the end of the table for Section 110(a)(2) Infrastructure 
Requirements for the 1997 8-Hour Ozone NAAQS, Section 110(a)(2) 
Infrastructure Requirements for the 1997 PM2.5 NAAQS, and 
Section 110(a)(2) Infrastructure Requirements for the 2006 
PM2.5 NAAQS. The amendments read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
  Name of non-regulatory SIP     Applicable geographic    State submittal                          Additional
           revision                      area                  date         EPA approval date     explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)               Statewide.............    12/3/07, 5/21/08  8/4/11 [Insert     This action
 Infrastructure Requirements                                                 page number        addresses the
 for the 1997 8-Hour Ozone                                                   where the          following CAA
 NAAQS.                                                                      document begins].  elements or
                                                                                                portions
                                                                                                thereof:
                                                                                                110(a)(2)(A),
                                                                                                (B), (C),
                                                                                                (D)(ii), (E),
                                                                                                (F), (G), (H),
                                                                                                (J), (K), (L),
                                                                                                and (M).
Section 110(a)(2)               Statewide.............    4/3/08, 5/21/08,  8/4/11 [Insert     This action
 Infrastructure Requirements                               7/9/08, 3/18/10   page number        addresses the
 for the 1997 PM2.5 NAAQS.                                                   where the          following CAA
                                                                             document begins].  elements or
                                                                                                portions
                                                                                                thereof:
                                                                                                110(a)(2)(A),
                                                                                                (B), (C),
                                                                                                (D)(ii), (E),
                                                                                                (F), (G), (H),
                                                                                                (J), (K), (L),
                                                                                                and (M).
Section 110(a)(2)               Statewide.............    10/1/09, 3/18/10  8/4/11 [Insert     This action
 Infrastructure Requirements                                                 page number        addresses the
 for the 2006 PM2.5 NAAQS.                                                   where the          following CAA
                                                                             document begins].  elements or
                                                                                                portions
                                                                                                thereof:
                                                                                                110(a)(2)(A),
                                                                                                (B), (C),
                                                                                                (D)(ii), (E),
                                                                                                (F), (G), (H),
                                                                                                (J), (K), (L),
                                                                                                and (M).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-19692 Filed 8-3-11; 8:45 am]
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