[Federal Register Volume 77, Number 177 (Wednesday, September 12, 2012)]
[Rules and Regulations]
[Pages 56125-56128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22338]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2011-0958; FRL-9725-4]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Amendments to West Virginia's Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the State Implementation Plan (SIP) revision 
submitted by the State of West Virginia (West Virginia) on July 8, 
2011. This revision pertains to amendments of West Virginia's 
Legislative Rule regarding ambient air quality standards (45 CSR 8--
Ambient Air Quality Standards). These amendments incorporate by 
reference the National Ambient Air Quality Standards (NAAQS) in effect 
on June 1, 2010 for sulfur dioxide (SO2), particulate matter 
(PM), carbon monoxide (CO), ozone, nitrogen dioxide (NO2), 
and lead. This action is being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on October 12, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2011-0958. 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: Asrah Khadr, (215) 814-2071, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 22, 2012, EPA published a notice of proposed rulemaking 
(NPR) for West Virginia. 77 FR 10423. The

[[Page 56126]]

NPR proposed approval of the revised regulation, 45 CSR 8--Ambient Air 
Quality Standards, submitted by West Virginia for inclusion in the West 
Virginia SIP, which also included the removal of sections 45-8-2 (Anti-
Degradation Policy), 45-8-4 (Ambient Air Quality Standards), 45-8-5 
(Methods of Measurement), and 45-8-6 (Reference Conditions). The 
revised regulation, 45 CSR 8, incorporates by reference the NAAQS for 
SO2, PM, CO, ozone, NO2, and lead. Additional 
background information is discussed in detail in the NPR. Three adverse 
comments were submitted in response to EPA's NPR. Summaries of the 
comments and EPA's responses are provided in section II of this 
document.

II. Summary of Public Comments and EPA Response

    Comment: EPA received comments on the proposed rulemaking from Mr. 
Robert Ukeile for Sierra Club (hereafter referred to as ``commenter''). 
The commenter expressed concern for the approval of the West Virginia 
SIP revision. The commenter perceives West Virginia's incorporation by 
reference of 40 CFR parts 50 and 53 effective June 1, 2010 to be out of 
date upon EPA approval of the SIP revision. The commenter suggested 
that EPA conditionally approve the SIP revision contingent upon West 
Virginia submitting the legislative rule with the current versions of 
40 CFR parts 50 and 53.
    Response: EPA disagrees with the commenter's statement that a 
conditional approval is warranted here. EPA is approving into the West 
Virginia SIP a revised version of 45 CSR 8 which adopts as state air 
quality standards the NAAQS for SO2, PM, CO, ozone, 
NO2, and lead by incorporating by reference 40 CFR parts 50 
and 53, effective June 1, 2010, into 45 CSR 8. This proposed SIP 
revision was submitted to EPA on July 8, 2011.
    It is important to note that 45 CSR 8 adopts those national ambient 
standards promulgated by EPA as ambient air quality standards for the 
State of West Virginia. See section 45-8-1. Neither the rule, nor its 
approval into the SIP, has any effect on the NAAQS promulgated by EPA, 
or on SIP requirements to attain and maintain the NAAQS in West 
Virginia. In particular, the West Virginia Prevention of Significant 
Deterioration (PSD) program, which is contained in a separate 
regulation, continues to require compliance with the NAAQS as 
promulgated by EPA. See section 45-14-9.
    The State of West Virginia's legislative rulemaking is a lengthy 
annual process. The legislature meets from January to March, at which 
time an agency approved rule is reviewed by the appropriate legislative 
committees. An agency approved rule is approved in a legislative bill 
and is then sent to the governor for signature in April and most often 
becomes effective a month later in May. This makes West Virginia's 
rulemaking process an ongoing task that is most often a year behind. 
Because of this yearly process, any rules published by EPA after April 
cannot be accommodated in the rulemaking process of that respective 
year. Therefore, the revisions to 45 CSR 8 which are relevant here were 
approved in the West Virginia legislative process in the spring of 
2011, but reflect the June 1, 2010 versions of 40 CFR parts 50 and 53 
because that is the latest annual edition of the federal regulations 
which were available at the time of the West Virginia legislative 
approval process in the spring of 2011. EPA notes, however, that West 
Virginia has a practice of regularly revising its regulations to adopt 
any changes in applicable NAAQS. EPA is approving these regulation 
changes into the West Virginia SIP as a SIP strengthening measure.
    Comment: The commenter expressed concern about EPA's approval of 
the removal of the Anti-Degradation Policy in section 2 of 45 CSR 8. 
The commenter perceived the removal of the Anti-Degradation Policy to 
relieve West Virginia from obtaining and maintaining the best possible 
air quality. The commenter stated that removal of this policy would no 
longer require the Secretary of the West Virginia Department of 
Environmental Protection (WVDEP) to produce plans to protect the air 
quality in attainment areas. The commenter expressed concern that the 
removal of this policy would allow air quality to degrade in attainment 
areas. Specifically, the commenter was concerned that the removal of 
this provision would cause West Virginia's minor source program to no 
longer comply with 42 U.S.C. 7410(a)(2)(A) and (C). The commenter 
perceived the removal of the Anti-Degradation Policy to be a relaxing 
of regulations in the West Virginia SIP and that EPA did not perform 
the appropriate anti-backsliding analysis required under 42 U.S.C. 
7410(l). The commenter suggested that EPA disapprove the removal of the 
Anti-Degradation Policy from the West Virginia SIP.
    Response: EPA disagrees that removal of the Anti-Degradation Policy 
will allow air quality to degrade in attainment areas in West Virginia. 
EPA notes that, as stated in the Environmental Protection Advisory 
Council meeting minutes included in the SIP submission, the Anti-
Degradation Policy was added to 45 CSR 8 in the early 1970s as ``a 
placeholder in anticipation of the future PSD program and its 
provisions for best available control technology.'' Minutes of 
Environmental Protection Advisory Council Meeting (June 3, 2010) at 2. 
Subsequently, statutory requirements for a PSD program were added to 
the CAA, EPA promulgated regulations, the State of West Virginia 
adopted a PSD program under 45 CSR 14, and the program became part of 
the West Virginia SIP. See 51 FR 12517 (April 11, 1986) (effective May 
12, 1986). Similarly, West Virginia's minor source permitting program 
at 45 CSR 13 was approved into the West Virginia SIP on February 8, 
2007. West Virginia's SIP-approved permitting programs provide the 
means by which West Virginia ensures maintenance of air quality and the 
requirement for best available control technology (BACT), consistent 
with the Anti-Degradation Policy. The Anti-Degradation Policy does not 
impose any additional requirements on sources, nor does its removal 
from the SIP excuse sources from having to comply with West Virginia's 
PSD, non-attainment NSR, or minor source programs. Accordingly, EPA has 
concluded that removal of the Anti-Degradation Policy will not 
interfere with attainment and maintenance of the NAAQS, or with any 
other applicable requirement of the CAA, and the SIP revision satisfies 
CAA section 110(l).
    Comment: The commenter expressed concern that WVDEP did not provide 
``reasonable notice'' required under CAA Section 110(a)(1) because 
WVDEP did not mention that changes to 45 CSR 8 included the removal of 
the Anti-Degradation Policy during the public hearing.
    Response: EPA disagrees with the commenter and believes West 
Virginia provided adequate public notice and an adequate opportunity 
for a public hearing. The requirements for public hearings for SIP 
revisions are in 40 CFR 51.102 which requires states to provide notice 
of the hearing, the opportunity to submit written comments, and the 
opportunity for the public to request a public hearing. The notice 
required by 40 CFR 51.102 is notice of the date, place and time of the 
public hearing. In addition, 40 CFR 51.102 also requires, inter alia, 
notice in a prominent advertisement and availability of the proposed 
SIP revision for public inspection in at least one location. The

[[Page 56127]]

commenter does not challenge the content of the notice, and indeed West 
Virginia's public notice for this SIP revision provided the location, 
Web site and contact phone number to obtain copies of the proposed 
rules at the time. All interested parties and persons had the ability 
to obtain more details about the proposed revision in at least one 
location. All notices for the public hearing were made at least 30 days 
prior to the date of the public hearing. West Virginia included in its 
submittal the affidavit of publication of the hearing notice in the 
Charleston newspapers and a copy of the West Virginia Register which 
contains a notice for the public hearing, as well as a transcript of 
the public hearing with a certification from the court reporter. 
Therefore, West Virginia has met the requirements for public hearings 
in 40 CFR 51.102. Furthermore, EPA notes that in opening of the public 
hearing, the representative of WVDEP clearly and accurately stated that 
the purpose of the public hearing was to accept comment on revisions to 
45 CSR 8. Any person wishing to make comments on any aspect of the 
revisions was free to do so.\1\
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    \1\ According to the transcript, neither this commenter, nor any 
other commenter, submitted comments to West Virginia at the public 
hearing.
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III. Final Action

    EPA is approving the updated version of 45 CSR 8 into the West 
Virginia SIP. This revision is being approved as a SIP strengthening 
measure for the West Virginia SIP.

IV. 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, 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 November 13, 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 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 the ambient air quality standards 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, Carbon monoxide, 
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate 
matter, Sulfur oxides.

    Dated: August 23, 2012.
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 (c) is amended by:
0
a. Revising the title for 45 CSR Series 8.
0
b. Revising the entries for Sections 45-8-1 through 45-8-4.
0
c. Removing the entries for Sections 45-8-5, 45-8-6, and 45-8-7.
    The amendments read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

[[Page 56128]]



                                EPA-Approved Regulations in the West Virginia SIP
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                                                                                                 Additional
 State citation [Chapter 16-20 or                           State                               explanation/
             45 CSR]                   Title/subject      effective     EPA approval date    citation at 40 CFR
                                                             date                                  52.2565
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                                                  * * * * * * *
                                 [45 CSR] Series 8 Ambient Air Quality Standards
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Section 45-8-1...................  General.............      6/16/11  9/12/12.............  Incorporation by
                                                                      [Insert page number    reference of the
                                                                       where the document    National Ambient
                                                                       begins].              Air Quality
                                                                                             Standards.
Section 45-8-2...................  Definitions.........      6/16/11  9/12/12.............  Revised section
                                                                      [Insert page number    moved from 45-8-3
                                                                       where the document    to 45-8-2.
                                                                       begins].
Section 45-8-3...................  Adoption of               6/16/11  9/12/12.............  Section was revised
                                    Standards.                        [Insert page number    to read new title
                                                                       where the document    and content.
                                                                       begins].
Section 45-8-4...................  Inconsistency             6/16/11  9/12/12.............  Revised section
                                    Between Rules.                    [Insert page number    moved from 45-8-7
                                                                       where the document    to 45-8-4.
                                                                       begins].
 
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[FR Doc. 2012-22338 Filed 9-11-12; 8:45 am]
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