[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Rules and Regulations]
[Pages 16937-16940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7027]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0092; FRL-9651-7]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing the limited approval and limited disapproval 
of West Virginia's Regional Haze State Implementation Plan (SIP) 
revision. EPA is taking this action because West Virginia's SIP 
revision, as a whole, strengthens the West Virginia SIP. We are 
finalizing our limited disapproval of the same SIP revision arising 
from the remand by the U.S. Court of Appeals for the District of 
Columbia (DC Circuit) to EPA of the Clean Air Interstate Rule (CAIR). 
This action is being taken in accordance with the requirements of the 
Clean Air Act (CAA) and EPA's rules for states to prevent and remedy 
future and existing anthropogenic impairment of visibility in mandatory 
Class I areas through a regional haze program. EPA is also approving 
this revision as meeting the infrastructure requirements relating to 
visibility protection for the 1997 8-hour ozone National Ambient Air 
Quality Standard (NAAQS) and the 1997 and 2006 fine particulate matter 
(PM2.5) NAAQS.

DATES: Effective Date: This final rule is effective on April 23, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0092. All documents in the docket are listed in 
the 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 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 57th Street SE., 
Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Melissa Linden, (215) 814-2096, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On July 13, 2011 (76 FR 41158), EPA published a 
notice of proposed rulemaking (NPR) for the Commonwealth of West 
Virginia. The NPR proposed limited approval and limited disapproval of 
West Virginia's Regional Haze SIP. The formal SIP revision was 
submitted by West Virginia Department of Environmental Protection 
(WVDEP) on June 18, 2008. This revision also meets the requirements of 
110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection 
for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 
NAAQS.

II. Summary of SIP Revision

    The SIP revision includes a long term strategy with enforceable 
measures ensuring reasonable progress towards meeting the reasonable 
progress goals for the first planning period, through 2018. West 
Virginia's Regional Haze Plan contains the emission reductions needed 
to achieve West Virginia's share of emission reductions and sets the 
reasonable progress goals for other states to achieve reasonable 
progress at the two Class I Areas within West Virginia, Dolly Sods 
Wilderness Area and Otter Creek Wilderness Area. The specific 
requirements of the CAA and EPA's Regional Haze Rule and the rationale 
for EPA's proposed action are explained in the NPR and will not be 
restated here. EPA received two adverse comments on the July 13, 2011 
NPR. Both comments raise similar concerns with the NPR and have been 
combined. A summary of the comments submitted and EPA's responses are 
provided in section III of this document.

III. Summary of Public Comments and EPA Responses

    Comment: The commenter argues that EPA's proposed limited approval/
limited disapproval action based on West Virginia's reliance on CAIR is 
unwarranted and should be withdrawn. Instead, the commenter states that 
EPA should grant full and unconditional approval of the West Virginia 
regional haze SIP. The commenter disagrees that CAIR renders the 
State's SIP unable to satisfy all of the CAA's regional haze SIP 
requirements. The commenter notes that West Virginia's SIP was 
submitted prior to the remand of CAIR and relied on the requirements 
under 40 CFR 51.308(e)(4), which remain in effect at this time. The 
commenter argues that as a result, the West Virginia SIP is entirely 
consistent with the applicable law. Moreover, the commenter highlights 
that the visibility-improvement benefits from CAIR's emission 
reductions are likely to be replicated, or indeed exceeded, by the 
visibility benefits projected to result from the Cross State Air 
Pollution Rule. The commenter argues that EPA does not have a basis to 
propose or promulgate disapproval or limited disapproval of a Regional 
Haze SIP due to its reliance on CAIR and on 40 CFR 51.308(e)(4), 
because EPA has not determined, based on a thorough and defensible 
analysis, that the emission reductions and associated visibility-
improvement benefits that are likely to result from the final CSAPR 
will not be at least comparable to those achieved under CAIR. Because 
the SIP is fully compliant with the relevant

[[Page 16938]]

regulations as they exist today, and EPA, at this time, has not made a 
determination that CSAPR will not satisfy the CAA's Best Available 
Retrofit Technology (BART) alternative requirements for nitrogen oxides 
(NOX) and sulfur dioxide (SO2) emissions from 
electric generating units (EGUs) and cannot be used, in at least the 
same measure as CAIR was used, to help meet reasonable progress 
requirements for regional haze, the commenter believes that the only 
proper course of action for EPA is to promptly promulgate a full 
approval of the West Virginia SIP.
    Response: The requirements for a BART alternative program, specific 
to trading programs in 40 CFR 51.308(e)(2) state that ``such an 
emissions trading program or other alternative measure must achieve 
greater reasonable progress than would be achieved through the 
installation and operation of BART.'' EPA's analysis, in 2005, showing 
that CAIR would provide for greater reasonable progress than BART, was 
based on the then reasonable assumption that CAIR met the requirements 
of the CAA and would remain in place. EPA's Transport Rule, commonly 
referred to as the Cross State Air Pollution Rule, sunsets the 
requirements of CAIR. EPA's decision to sunset CAIR is the result of a 
decision by the DC Circuit remanding CAIR to EPA and leaving CAIR in 
place only ``temporarily,'' as noted in our notice of proposed 
rulemaking and by the commenters. As such, notwithstanding the 
regulatory text in 40 CFR 51.308(e)(4), we cannot fully approve the 
West Virginia Regional Haze SIP which relies heavily on CAIR as part of 
its long-term strategy and to meet the BART requirements.
    EPA does agree that the Transport Rule is likely to result in 
visibility improvements at least comparable to CAIR; however, nothing 
in West Virginia's Regional Haze SIP suggests that the State relied on 
the Transport Rule to meet its regional haze obligations. The EPA has 
completed an analysis and has proposed the Transport Rule as an 
alternative to BART for EGUs located in the Transport Rule states 
(which include West Virginia). 76 FR 82219. Given the significance of 
the emissions reductions from CAIR to West Virginia's demonstration 
that it has met the requirements of the Regional Haze Rule, EPA is 
issuing a limited disapproval of the West Virginia SIP. Although CAIR 
is currently being administered by EPA pursuant to an order by DC 
Circuit in EME Homer Generation, L.P. v. EPA, it will not remain in 
effect indefinitely. For this reason, EPA cannot fully approve Regional 
Haze SIP revisions that rely on CAIR for emission reduction measures.

IV. Final Action

    EPA is finalizing its limited approval and limited disapproval of 
the revision to the West Virginia SIP submitted on June 18, 2008, that 
addresses regional haze for the first implementation period. EPA is 
issuing a limited approval of the West Virginia SIP since overall the 
SIP will be stronger and more protective of the environment with the 
implementation of those measures by the State and having Federal 
approval and enforceability than it would without those measures being 
included in the State's SIP.
    EPA is finalizing the limited disapproval of those portions of West 
Virginia's SIP that rely on CAIR. This final limited disapproval does 
not affect the Federal enforceability of the measures in the West 
Virginia SIP revision nor prevent state implementation of these 
measures. The final limited disapproval provides EPA the authority to 
issue a Federal Implementation Plan (FIP) at any time, and obligates 
EPA to take such action no more than two years after the effective date 
of the final limited disapproval action. EPA has proposed a partial 
regional haze FIP that would provide that the BART requirements for 
SO2 and NOX emissions from EGUs in West Virginia 
are satisfied by the already-promulgated Transport Rule FIP applicable 
to EGU sources in West Virginia, as would be allowed by a proposed 
revision to the Regional Haze Rule that was included in the same notice 
published on December 30, 2011. 76 FR 82219. EPA is also approving this 
revision as meeting the applicable visibility related requirements of 
the CAA section 110(a)(2) including, but not limited to 
110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection 
for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 
NAAQS.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *. 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act 
does not apply to this action.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-state relationship under the CAA, 
preparation of a flexibility analysis would constitute Federal inquiry 
into the economic reasonableness of state action. The CAA forbids EPA 
to base its actions concerning SIPs on such grounds. Union Electric 
Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that today's proposal does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the

[[Page 16939]]

aggregate, or to the private sector. This Federal action proposes to 
approve pre-existing requirements under State or local law, and imposes 
no new requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612 (Federalism) and 
12875 (Enhancing the Intergovernmental Partnership). Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
Federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by state and local governments, or EPA consults with 
state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
Federalism implications and that preempts state law unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' 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.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This action is not subject to 
Executive Order 13045 because it is not an economically significant 
regulatory action based on health or safety risks subject to Executive 
Order 13045 (62 FR 19885, April 23, 1997).

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12 of the NTTAA of 1995 requires Federal agencies to 
evaluate existing technical standards when developing a new regulation. 
To comply with NTTAA, EPA must consider and use ``voluntary consensus 
standards'' (VCS) if available and applicable when developing programs 
and policies unless doing so would be inconsistent with applicable law 
or otherwise impractical. EPA believes that VCS are inapplicable to 
this action. Today's limited approval and limited disapproval does not 
require the public to perform activities conducive to the use of VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this Virginia Regional Haze proposed action. In reviewing 
SIP submissions, EPA's role is to approve or disapprove state choices, 
based on the criteria of the Clean Air Act. Accordingly, it 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.

K. 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).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 22, 2012. 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

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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 limited approval and limited disapproval of the West Virginia 
Regional Haze SIP 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, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 15, 2012.
James W. Newsom,
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 an 
entry for Regional Haze Plan at the end of the table to read as 
follows:


52.2520  Identification of plan.

* * * * *
    (e) * * *

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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan...............  Statewide..........         6/18/08  3/23/12 [Insert      Sec.  52.2533(d);
                                                                         page number where    Limited Approval.
                                                                         the document
                                                                         begins].
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0
3. Section 52.2533 is amended by adding paragraph (d) to read as 
follows:


52.2533  Visibility protection.

* * * * *
    (d) Limited approval of the Regional Haze Plan submitted by West 
Virginia on June 18, 2008; limited disapproval for those sections 
relying upon emission reductions from the Clean Air Interstate Rule 
(CAIR).

[FR Doc. 2012-7027 Filed 3-22-12; 8:45 am]
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