[Federal Register Volume 79, Number 66 (Monday, April 7, 2014)]
[Rules and Regulations]
[Pages 19001-19009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07589]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0299; FRL-9909-09-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Section 110(a)(2) Infrastructure Requirements for the 
2008 Ozone National Ambient Air Quality Standards

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 State of West 
Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised 
National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA 
requires states to submit a plan for the implementation, maintenance, 
and enforcement of such NAAQS. The plan is required to address basic 
program elements, including, but not limited to regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the standards. These elements 
are referred to as infrastructure requirements. The State of West 
Virginia has made a submittal addressing the infrastructure 
requirements for the 2008 ozone NAAQS.

DATES: This final rule is effective on May 7, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0299. 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: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision

    On February 17, 2012, the West Virginia Department of Environmental 
Protection (WV DEP) submitted a SIP revision that addresses the 
infrastructure elements specified in section 110(a)(2) of the CAA, 
necessary to implement, maintain, and enforce the 2008 ozone NAAQS. On 
July 2, 2013 (78 FR 39650), EPA published a notice of proposed 
rulemaking (NPR) for the State of West Virginia proposing approval of 
West Virginia's submittal. In the NPR, EPA proposed approval of the 
following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D), 
(E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof. EPA 
has taken separate action on the portions of section 110(a)(2)(C), 
(D)(i)(II), and (J) as they relate to West Virginia's prevention of 
significant deterioration (PSD) program and is taking separate action 
on section 110(a)(2)(E)(ii) as it relates to section 128 (State 
Boards). West Virginia did not submit section 110(a)(2)(I) which 
pertains to the nonattainment requirements of part D, Title I of the 
CAA, since this element is not required to be submitted by the 3-year 
submission deadline of section 110(a)(1), and will be addressed in a 
separate process. West Virginia also did not include a component to 
address section 110(a)(2)(D)(i)(I) as it is not required in accordance 
with the EME Homer City decision from the United States Court of 
Appeals for the District of Columbia Circuit, until EPA has defined a 
state's contribution to nonattainment or interference with maintenance 
in another state. See EME Homer City Generation, LP v. EPA, 696 F.3d 7 
(D.C. Cir. 2012), cert. granted, 133 U.S. 2857 (2013). Unless the EME 
Homer City decision is reversed or otherwise modified by the Supreme 
Court, states such as West Virginia are not required to submit section 
110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their obligations 
under that section. Therefore, a 110(a)(2)(D)(i)(I) submission from 
West Virginia is not statutorily required at this time. As no such 
submission was made by the State, there is no 110(a)(2)(D)(i)(I) SIP 
pending

[[Page 19002]]

before the EPA. Thus, in this rulemaking notice, EPA is not taking 
action with respect to 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
    The rationale supporting EPA's proposed rulemaking action, 
including the scope of infrastructure SIPs in general, is explained in 
the NPR and the technical support document (TSD) accompanying the NPR 
and will not be restated here. The TSD is available in the docket for 
this rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR-
2013-0299.

II. Public Comments and EPA's Responses

    EPA received three sets of comments on the July 2, 2013 proposed 
approval of West Virginia's 2008 ozone infrastructure SIP. The 
commenters include the State of Connecticut, the State of Maryland, and 
the Sierra Club. A full set of these comments is provided in the docket 
for today's final rulemaking action. As both States and the Sierra Club 
submitted comments regarding the interstate transport of pollution and 
the States did not comment on other issues, a summary of the comments 
dealing with transport and EPA's responses will be addressed first 
followed by summaries of and responses to the remainder of Sierra 
Club's comments.

A. ``Interstate Transport'' Comments

    Comment 1: The State of Connecticut, the State of Maryland, and the 
Sierra Club (the commenters) assert that the ability of downwind states 
to attain the 2008 ozone NAAQS is substantially compromised by 
interstate transport of pollution from upwind states. The States 
comment that they have done their share to reduce in-state emissions, 
and EPA should ensure each state fully addresses its contribution to 
any other state's ozone nonattainment. The commenters state that 
section 110(a)(1) of the CAA requires states like West Virginia to 
submit, within three years of promulgation of a new NAAQS, an 
infrastructure SIP which provides for implementation, maintenance, and 
enforcement of such NAAQS within the state. The commenters remark that 
West Virginia was required to submit a complete SIP that demonstrated 
compliance with the good neighbor provision of section 
110(a)(2)(D)(i)(I) of the CAA. Maryland also states that EPA must 
disapprove the infrastructure submittal for element 110(a)(2)(D)(i)(I) 
as West Virginia made no submittal for that element. Maryland also 
argues that if EPA believes EME Homer City prohibits it from 
disapproving the 110(a)(2)(D)(i)(I) portion of the West Virginia SIP 
before the state's significant contribution level is established, then 
EPA should immediately promulgate such a level. Sierra Club, in turn, 
states that EPA must disapprove West Virginia's SIP submission for 
failure to comply with 110(a)(2)(D)(i)(I). Sierra Club and Maryland 
both argue that EPA cannot rely on the D.C. Circuit decision in EME 
Homer City Generation v. EPA, 696 F.3d 7 (D.C. Cir. 2012) as an excuse 
to ignore obligations established by the Clean Air Act. Sierra Club 
suggests the relevant language in EME Homer City is dicta and that as 
this rulemaking action would be appealed to the Fourth Circuit, and EPA 
is under no obligation to follow that dicta.
    Connecticut and Sierra Club state that EPA must make a finding 
under section 110(k) of the CAA that West Virginia failed to submit the 
required SIP elements to address section 110(a)(2)(D)(i)(I) of the CAA. 
Connecticut states that under section 110(c)(1) of the CAA such a 
finding creates a two year deadline for EPA to promulgate a Federal 
Implementation Plan (FIP). In addition, Connecticut and Maryland state 
that the CAA does not give EPA discretion to approve a SIP without the 
good neighbor provision on the grounds that EPA would take separate 
action to address West Virginia's 110(a)(2)(D)(i)(I) obligations. They 
assert that a FIP is the only separate action available to EPA under 
the CAA to address a state's failure to satisfy the requirements of 
110(a)(2)(D)(i)(I). Sierra Club states that EPA must issue a FIP within 
two years of disapproval of West Virginia's SIP under section 
110(c)(1)(A) of the CAA.
    Response 1: In this rulemaking action, EPA is not taking any final 
action with respect to the provisions in section 110(a)(2)(D)(i)(I)--
the portion of the good neighbor provision which addresses emissions 
that significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in another state. West Virginia did not make a 
SIP submission to address the requirements of section 
110(a)(2)(D)(i)(I) and thus there is no such submission upon which EPA 
could take action under section 110(k) of the CAA. EPA could not, as 
Maryland urges, act under section 110(k) to disapprove a SIP submission 
that has not been submitted to EPA. In addition, EPA could not, at this 
time, find that West Virginia has failed to submit a required SIP 
element for 110(a)(2)(D)(i)(I) as the D.C. Circuit in EME Homer City 
has held no such obligation to submit exists until EPA defines a 
state's obligations under 110(a)(2)(D)(i)(I). EPA also disagrees with 
the commenters that EPA cannot approve a SIP without the good neighbor 
provision and believes there is no basis for the contention that EPA 
must issue a FIP within two years, as EPA has neither disapproved, nor 
found that West Virginia failed to submit a required 110(a)(2)(D)(i)(I) 
SIP submission.
    EPA acknowledges the commenters' concern that interstate transport 
of ozone and ozone precursors from upwind states to downwind states may 
have adverse consequences on the ability of downwind areas to attain 
the NAAQS in a timely fashion. EPA also agrees in general with the 
commenters that each state should address its contribution to another 
state's nonattainment and that section 110(a)(1) of the CAA requires 
states like West Virginia to submit, within three years of promulgation 
of a new or revised NAAQS, a plan which provides for implementation, 
maintenance and enforcement of such NAAQS within the state. Similarly, 
EPA has interpreted the CAA as providing that any finding by EPA that a 
state has failed to make such a submission would trigger an obligation 
for EPA to promulgate a FIP within two years if the state did not 
submit and EPA approve a SIP to correct the deficiency before EPA 
promulgates a FIP. However, as discussed further in this response, 
while EPA continues to agree that the plain language of the statute 
establishes these obligations, unless the D.C. Circuit decision in EME 
Homer City is reversed or modified by the Supreme Court, EPA intends to 
act in accordance with that opinion. In that opinion, the D.C. Circuit 
held that a 110(a)(2)(D)(i)(I) SIP to address emissions that 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in another state is not due until EPA has defined the 
state's obligations under that section of the CAA. Thus, at this time, 
West Virginia has no obligation to make a 110(a)(2)(D)(i)(I) SIP 
submittal and EPA has no obligation to issue a FIP.
    As mentioned previously, EPA has historically interpreted the CAA 
as requiring states to submit SIPs addressing the requirements of 
section 110(a)(2)(D)(i)(I) of the CAA within three years of the 
promulgation or revision of a NAAQS. However, the U.S. Court of Appeals 
for the District of Columbia Circuit clearly articulated in its opinion 
in EME Homer City that SIPs under section 110(a)(2)(D)(i)(I) of the CAA 
are not due until EPA has defined a state's significant contribution to 
nonattainment or interference with maintenance in another state. See 
EME Homer City, 696 F.3d 7. EPA has not yet done this for the 2008 
ozone NAAQS.

[[Page 19003]]

While the Supreme Court has agreed to review the EME Homer City 
decision, the D.C. Circuit's decision currently remains in place. EPA 
intends to act in accordance with the EME Homer City opinion unless it 
is reversed or otherwise modified by the Supreme Court. Therefore, in 
this rulemaking action, EPA is not taking any final action with respect 
to the provisions in section 110(a)(2)(D)(i)(I).\1\
---------------------------------------------------------------------------

    \1\ On January 15, 2013, EPA published findings of failure to 
submit with respect to the infrastructure SIP requirements for the 
2008 ozone NAAQS. See 78 FR 2882. In that rulemaking action, EPA 
explained why it was not issuing any findings of failure to submit 
with respect to section 110(a)(2)(D)(i)(I). Id. at 2884-85. In that 
rulemaking action, EPA explained the opinion of the D.C. Circuit in 
EME Homer City concluded that a ``SIP cannot be deemed to lack a 
required submission or deemed deficient for failure to meet the 
110(a)(2)(D)(i)(I) obligation until after EPA quantifies the 
obligation.'' See 78 FR at 2884-85; see also EME Homer City, 696 
F.3d at 32. Therefore, under EME Homer City, states like West 
Virginia have no obligation to make a SIP submission to address 
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS until EPA has 
first defined the state's obligations.
---------------------------------------------------------------------------

    EPA disagrees with the commenters' argument that EPA cannot approve 
a SIP without the good neighbor provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve state SIP revisions in separable parts was included in the 1990 
Amendments to the CAA to overrule a decision in the Court of Appeals 
for the Ninth Circuit holding that EPA could not approve individual 
measures in a plan submission without either approving or disapproving 
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 
F.2d 1071 (9th Cir. 1987)).
    EPA further disagrees with commenters' suggestions that the Agency 
need not follow the D.C. Circuit opinion in EME Homer City. EPA intends 
to act in accordance with the D.C. Circuit opinion in EME Homer City 
unless it is reversed or otherwise modified by the Supreme Court. In 
addition, because the EPA rule known as the Cross State Air Pollution 
Rule (CSAPR) reviewed by the court in EME Homer City was designated by 
EPA as a ``nationally applicable'' rule within the meaning of CAA 
section 307(b)(1) with petitions for review of CSAPR required to be 
filed in the D.C. Circuit, EPA accordingly believes the D.C. Circuit's 
decision in EME Homer City is also nationally applicable. As such, EPA 
does not intend to take any actions, even if they are only reviewable 
in another federal Circuit Court of Appeals, which are inconsistent 
with the decision of the D.C. Circuit. EPA also finds no basis for one 
commenter's suggestion that the relevant portion of the D.C. Circuit 
opinion in EME Homer City opinion is dicta.
    EPA interprets its authority under section 110(k)(3) of the CAA, as 
affording EPA the discretion to approve or conditionally approve 
individual elements of West Virginia's infrastructure submission for 
the 2008 eight-hour ozone NAAQS, separate and apart from any action 
with respect to the requirements of section 110(a)(2)(D)(i)(I) of the 
CAA with respect to that NAAQS. EPA views discrete infrastructure SIP 
requirements, such as the requirements of 110(a)(2)(D)(i)(I), as 
severable from the other infrastructure elements and interprets section 
110(k)(3) as allowing it to act on individual severable measures in a 
plan submission. In short, EPA believes that even if West Virginia had 
made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA, which 
it has not, EPA would still have discretion under section 110(k) of the 
CAA to act upon the various individual elements of the state's 
infrastructure SIP submission, separately or together, as appropriate. 
The commenters raise no compelling legal or environmental rationale for 
an alternate interpretation.
    EPA disagrees with the comment from Connecticut and Maryland 
regarding EPA's statement indicating an intent to take separate action 
on West Virginia's 110(a)(2)(D)(i)(I) obligations and that a FIP must 
be issued within two years. In the rulemaking action which proposed 
approval of portions of West Virginia's infrastructure SIP for the 2008 
ozone NAAQS, EPA stated that its proposed action did not include any 
proposed action on section 110(a)(2)(D)(i)(I) of the CAA for West 
Virginia's February 17, 2012 infrastructure SIP submission because this 
element was not required until EPA quantified the state's obligations 
pursuant to the EME Homer City opinion. See (78 FR 39650, July 2, 
2013). As EPA has neither disapproved, nor found that West Virginia 
failed to submit a required 110(a)(2)(D)(i)(I) SIP submission, there is 
consequently no basis for any contention that EPA must issue a FIP 
within two years. Moreover, the D.C. Circuit clearly held in EME Homer 
City that even where EPA had issued findings of failure to submit 
110(a)(2)(D)(i)(I) SIPs and/or disapproved such SIPs, EPA lacked 
authority to promulgate FIPs under 110(c)(1) of the CAA where it had 
not previously quantified states' good neighbor obligations. EME Homer 
City, 696 F.3d at 31-37. And, as explained earlier in this rulemaking 
action, EPA intends to comply with that decision unless it is reversed 
or otherwise modified by the Supreme Court. See also (78 FR 14681, 
16843, March 7, 2013) (concluding that, under the D.C. Circuit opinion 
in EME Homer City, disapproval of a 110(a)(2)(D)(i)(I) SIP submitted by 
Kentucky did not start a FIP clock).
    In sum, the concerns raised by the commenters do not establish that 
it is inappropriate or unreasonable for EPA to approve the portions of 
West Virginia's February 17, 2012 infrastructure SIP submission for the 
2008 ozone NAAQS. As discussed above, EPA has no obligation to find 
West Virginia failed to satisfy its good neighbor obligations and no 
action is required at this time. Moreover, EPA notes that it is 
actively working with state partners to assess next steps to address 
air pollution that crosses state boundaries and has begun work on a 
rulemaking to address transported air pollution affecting the ability 
of states in the eastern half of the United States to attain and 
maintain the 2008 ozone NAAQS, including defining certain states' 
obligations under 110(a)(2)(D)(i)(I). That rulemaking action is 
separate from this SIP approval action. It is also technically complex 
and must comply with the rulemaking requirements of section 307(d) of 
the CAA.

B. Sierra Club Comments

    Sierra Club makes several additional comments which are provided in 
the docket for today's final rulemaking action and summarized below 
with EPA's response to each.
    Comment 2: Sierra Club contends that EPA must disapprove West 
Virginia's 2008 eight-hour ozone infrastructure SIP revision with 
regard to the visibility components of section 110(a)(2)(D)(i)(II) and 
(J) of the CAA since West Virginia's Regional Haze SIP relies on 
visibility improvements from implementing the Clean Air Interstate Rule 
(CAIR). The commenter asserts that CAIR is not permanent and 
enforceable and they reference litigation in the D.C. Circuit related 
to CAIR. See North Carolina v. EPA, 531 F.3d 896, on rehearing, 550 
F.3d 1176 (D.C. Cir. 2008). The commenter also cites to EPA statements 
in rulemaking actions on SIPs, such as attainment SIPs and maintenance 
SIPs, where EPA stated CAIR reductions were not permanent reductions. 
The commenter states that EPA could not rely on CAIR, even if permanent 
and enforceable, to support its proposed

[[Page 19004]]

approval of the visibility components in section 110(a)(2)(D)(i)(II) 
and (J) of the CAA for West Virginia's 2008 eight-hour ozone 
infrastructure SIP revision. The commenter asserts that the 
substitution of CAIR for best available retrofit technology (BART) for 
electric generating units (EGUs) violates the CAA including section 
169A. The commenter includes comments challenging EPA's prior 
rulemakings that CAIR was ``better than BART'' because such exemption 
from BART does not meet the requirements of CAA section 169A(c) or 
169A(b)(2)(A). The commenter states that CAIR as a substitute for BART 
for EGUs would result in the EGU sources having less stringent controls 
on emissions than would result from application of source-by-source 
BART.
    Response 2: EPA disagrees with the commenter that West Virginia's 
infrastructure SIP does not meet the requirements for visibility 
protection in section 110(a)(2)(D)(i)(II) and (J) of the CAA. As 
explained in detail in EPA's proposed rulemaking related to today's 
rulemaking action, EPA believes that in light of the D.C. Circuit's 
decision to vacate CSAPR, also known as the Transport Rule (see EME 
Homer City, 696 F.3d 7), and the court's order for EPA to ``continue 
administering CAIR pending the promulgation of a valid replacement,'' 
it is appropriate for EPA to rely at this time on CAIR to support 
approval of West Virginia's 2008 eight-hour ozone infrastructure 
revision, including as it relates to visibility. Based on the current 
direction from the court to continue administering CAIR, EPA believes 
that it is appropriate to rely on CAIR emission reductions for purposes 
of assessing the adequacy of West Virginia's infrastructure SIP 
revision with respect to prong 4 of section 110(a)(2)(D)(i)(II) while a 
valid replacement rule is developed and until submissions complying 
with any such new rule are submitted by the states and acted upon by 
EPA or until the EME Homer City case is resolved in a way that provides 
different direction regarding CAIR and CSAPR.
    Furthermore, as neither the State of West Virginia nor EPA has 
taken any action to remove CAIR from the West Virginia SIP, CAIR 
remains part of the federally-approved SIP and can be considered in 
determining whether the SIP as a whole meets the requirement of prong 4 
of 110(a)(2)(D)(i)(II). EPA is taking final rulemaking action to 
approve the infrastructure SIP submission with respect to prong 4 
because West Virginia's Regional Haze SIP, which EPA has approved (see 
(77 FR 16937, March 23, 2012)), in combination with its SIP provisions 
to implement CAIR adequately prevents sources in West Virginia from 
interfering with measures adopted by other states to protect visibility 
during the first planning period as also described in detail in the TSD 
which accompanied the NPR.\2\
---------------------------------------------------------------------------

    \2\ Under sections 301(a) and 110(k)(6) of the CAA and EPA's 
long-standing guidance, a limited approval results in approval of 
the entire SIP submittal, even of those parts that are deficient and 
prevent EPA from granting a full approval of the SIP revision. 
Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (1992 Calcagni Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. Therefore, EPA 
believes it is appropriate to approve West Virginia's 2008 ozone 
NAAQS infrastructure SIP for section 110(a)(2)(D)(i)(II) as it meets 
the requirements of that section despite the limited approval status 
of West Virginia's regional haze SIP.
---------------------------------------------------------------------------

    EPA disagrees with the commenter that the CAA does not allow states 
to rely on an alternative program such as CAIR in lieu of source-
specific BART. EPA's regulations allowing states to adopt alternatives 
to BART that provide for greater reasonable progress, and EPA's 
determination that states may rely on CAIR to meet the BART 
requirements, have been upheld by the D.C. Circuit as meeting the 
requirements of the CAA. In the first case challenging the provisions 
in the regional haze rule (40 CFR 51.308) allowing for states to adopt 
alternative programs in lieu of BART, the court affirmed our 
interpretation of section 169A(b)(2) of the CAA as allowing for 
alternatives to BART where those alternatives will result in greater 
reasonable progress than BART. Center for Energy and Economic 
Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005) (finding 
reasonable the EPA's interpretation of section 169A(b)(2) of the CAA as 
requiring BART only as necessary to make reasonable progress). In the 
second case, Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. 
Cir. 2006), the court specifically upheld our determination that states 
could rely on CAIR as an alternative program to BART for EGUs in the 
CAIR-affected states. The court concluded that the EPA's two-pronged 
test for determining whether an alternative program achieves greater 
reasonable progress was a reasonable one and also agreed with EPA that 
nothing in the CAA required the EPA to ``impose a separate technology 
mandate for sources whose emissions affect Class I areas, rather than 
piggy-backing on solutions devised under other statutory categories, 
where such solutions meet the statutory requirements.'' Id. at 1340.
    EPA also notes that CAIR has not been ``vacated'' as stated in 
Sierra Club's comment. As mentioned in EPA's TSD, CAIR was ultimately 
remanded by the D.C. Circuit to EPA without vacatur, and EPA continues 
to implement CAIR. EPA further notes that all of the rulemaking actions 
and proposed rulemaking actions cited by the commenter which discussed 
limited approvability of SIPs or redesignations due to the status of 
CAIR were issued by EPA prior to the vacatur of CSAPR when EPA was 
implementing CSAPR. Since the vacatur of CSAPR in August 2012 and with 
continued implementation of CAIR per the direction of the DC Circuit in 
EME Homer City, EPA has approved redesignations of areas to attainment 
of the 1997 fine particulate matter (PM2.5) NAAQS in which 
states have relied on CAIR as an enforceable measure. See 77 FR 76415, 
December 28, 2012 (redesignation of Huntingdon-Ashland, West Virginia 
for 1997 PM2.5 NAAQS which was proposed in 77 FR 68076, 
November 15, 2012); 78 FR 59841, September 30, 2013 (redesignation of 
Wheeling, West Virginia for 1997 PM2.5 NAAQS which was 
proposed in 77 FR 73575, December 11, 2012); and 78 FR 56168, September 
12, 2013 (redesignation of Parkersburg, West Virginia for 1997 
PM2.5 NAAQS which was proposed in 77 FR 73560, December 11, 
2012).
    More fundamentally, we disagree with the commenter that the 
adequacy of the BART measures in the West Virginia Regional Haze SIP is 
relevant to the question of whether the State's SIP meets the 
requirements of section 110(a)(2)(D)(i) of the CAA with respect to 
visibility. EPA interprets the visibility provisions in this section of 
the CAA as requiring states to include in their SIPs measures to 
prohibit emissions that would interfere with the reasonable progress 
goals set to protect Class I areas in other states. The regional haze 
rule includes a similar requirement at 40 CFR 51.308(d)(3). We note 
that on March 23, 2012, EPA determined that West Virginia's Regional 
Haze SIP adequately prevents sources in West Virginia from interfering 
with the reasonable progress goals adopted by other states to protect 
visibility during the first planning period. See 77 FR 16937. See also 
76 FR 41158, 41175-41176 (proposing approval of West Virginia Regional 
Haze SIP). As EPA's review of the West Virginia Regional Haze SIP 
explains, the State relied on CAIR to achieve significant reductions in 
emissions to both meet the BART requirements and to address impacts of 
West Virginia on Class I areas in other

[[Page 19005]]

states. The question of whether or not CAIR satisfies the BART 
requirements has no bearing on whether these measures meet the 
requirements of section 110(a)(2)(D)(i)(II) of the CAA with respect to 
visibility. We also note that while the adequacy of the BART provisions 
in the West Virginia Regional Haze SIP is irrelevant to the question of 
whether the plan meets the requirements of section 110(a)(2)(D)(i)(II) 
of the CAA, CAIR was upheld as an alternative to BART in accordance 
with the requirements of Section 169A of the CAA by the DC Circuit in 
Utility Air Regulatory Group v. EPA.
    In addition, with regard to the visibility protection aspect of 
section 110(a)(2)(J), as discussed in the TSD accompanying the NPR for 
this rulemaking action, EPA stated that it recognizes that states are 
subject to visibility and regional haze program requirements under part 
C of the CAA. In the establishment of a new NAAQS such as the 2008 
ozone NAAQS, however, the visibility and regional haze program 
requirements under part C of Title I of the CAA do not change and there 
are no applicable visibility obligations under part C ``triggered'' 
under section 110(a)(2)(J) when a new NAAQS becomes effective. 
Therefore, EPA appropriately proposed approval of West Virginia's 2008 
ozone infrastructure SIP revision for section 110(a)(2)(J). As 
discussed for section 110(a)(2)(D)(i)(II) earlier in this rulemaking 
action and in the TSD for this rulemaking action, West Virginia has 
submitted SIP revisions to satisfy the requirements of part C of Title 
I of the CAA.\3\
---------------------------------------------------------------------------

    \3\ The TSD is available in the docket for this rulemaking at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2013-0299.
---------------------------------------------------------------------------

    In summary, EPA believes that it appropriately proposed approval of 
West Virginia's infrastructure SIP revision for the 2008 ozone NAAQS 
for the structural visibility protection requirements in 
110(a)(2)(D)(i)(II).
    Comment 3: Sierra Club states that EPA must disapprove West 
Virginia's 2008 eight-hour ozone infrastructure SIP revision for 
elements 110(a)(2)(D)(i)(II) and (J) of the CAA because the commenter 
asserts that West Virginia had failed to submit a five-year progress 
report on its implementation of West Virginia's Regional Haze SIP and 
also because EPA had not yet approved West Virginia's five-year 
progress report for regional haze. Sierra Club referenced a July 18, 
2008 SIP submittal from West Virginia for regional haze as the basis 
for determining when the five-year progress report for West Virginia 
was due.
    Response 3: EPA disagrees with the commenter that West Virginia's 
five-year progress report was not submitted at the time EPA proposed to 
approve West Virginia's infrastructure SIP for the 2008 ozone NAAQS on 
July 2, 2013. West Virginia submitted on April 30, 2013, as a SIP 
revision, its five-year progress report of its approved regional haze, 
to meet the progress report requirements in 40 CFR 51.308(g). The 
provisions under 40 CFR 51.308(g) impose a regulatory requirement for 
an evaluation of West Virginia's progress towards meeting its 
reasonable progress goals for Class I Federal areas located within West 
Virginia and in Class I Federal areas outside West Virginia which may 
be affected by emissions from inside West Virginia. EPA found West 
Virginia's April 30, 2013 progress report SIP submittal complete on 
June 13, 2013. EPA has taken action proposing approval on the SIP 
revision. See 79 FR 14460, March 14, 2014. EPA disagrees with the 
commenter that EPA's approval of West Virginia's five-year progress 
report is a required structural element necessary before EPA may 
approve West Virginia's infrastructure SIP for element 
110(a)(2)(D)(i)(II).
    Nevertheless, from EPA's review of data provided by West Virginia 
in its five-year progress report, including EPA's review of emissions 
data from 2008 through 2011 on West Virginia EGUs from EPA's Clean Air 
Markets Division (CAMD) as provided by the State, emissions of sulfur 
dioxide (SO2), the primary contributor to visibility 
impairment in the Visibility Improvement State and Tribal Association 
of the Southeast (VISTAS) region, have declined significantly in the 
State since the West Virginia Regional Haze SIP was submitted to EPA on 
June 18, 2008. Specifically, West Virginia's five-year progress report 
notes that in the EGU sector, EPA's CAMD data for 2010 and 2011 shows 
EGU SO2 emissions in West Virginia are significantly below 
even what was predicted for 2018. EPA's review of visibility data from 
West Virginia in its five-year progress report also shows Class I areas 
impacted by sources within West Virginia are all meeting or below their 
reasonable progress goals. In addition, based on EPA's review of the 
West Virginia five-year progress report, EPA has no reason to question 
the accuracy of West Virginia's negative declaration to EPA pursuant to 
40 CFR 51.308(h) that no revision to West Virginia's Regional Haze SIP 
is needed at this time to achieve established goals for visibility 
improvement and emissions reductions. Therefore, based upon EPA's 
review of the relevant visibility data, emissions data, and modeling 
results provided by West Virginia in the five-year progress report and 
upon the analysis provided in the TSD which accompanied the NPR for 
this rulemaking action, EPA continues to believe that the State's 
existing SIP (including the Regional Haze SIP and CAIR) contains 
adequate provisions prohibiting sources from emitting visibility 
impairing pollutants in amounts which would interfere with neighboring 
states' SIP measures to protect visibility.
    Also, as stated previously, the visibility and regional haze 
program requirements under part C of Title I of the CAA do not change 
with the establishment of a new NAAQS such as the 2008 ozone NAAQS, and 
there are no applicable visibility obligations under part C 
``triggered'' by section 110(a)(2)(J) when a new NAAQS becomes 
effective. Given this, West Virginia was under no obligation to address 
section 110(a)(2)(J) in its 2008 ozone infrastructure SIP.
    Comment 4: Sierra Club contends that EPA must disapprove West 
Virginia's infrastructure SIP revision because the submittal relies on 
CAIR, considered by Sierra Club as a stopgap measure, for section 
110(a)(2)(A) of the CAA, and therefore fails to impose restrictions on 
ozone sources and to ensure attainment and maintenance of the 2008 
NAAQS. Sierra Club contends West Virginia cannot rely upon CAIR as an 
enforceable emissions limit for 110(a)(2)(A). In addition, Sierra Club 
suggests that EPA's statements are dismissive of the 2008 ozone NAAQS 
requiring any more than the less stringent 1997 ozone NAAQS and states 
that if states do not take any new actions to satisfy the 2008 ozone 
NAAQS, the 2008 ozone NAAQS will not be met in many areas and states 
will not attain and maintain the NAAQS. Sierra Club contends EPA must 
disapprove the West Virginia infrastructure SIP for the 2008 ozone 
NAAQS because West Virginia failed to adequately ensure attainment and 
maintenance of the NAAQS.
    Sierra Club also states in its background comments that EPA may 
approve an infrastructure SIP only if EPA finds the SIP meets the 
requirements of section 110(a)(2) of the CAA and states such SIPs must 
include emission limitations that result in compliance with the NAAQS. 
Sierra Club further states in background that for a plan to be 
adequate, it must demonstrate the measures, rules, and regulations in 
the SIP are adequate to

[[Page 19006]]

provide for timely attainment and maintenance of the standard and cited 
to 40 CFR 51.112 for support.
    Response 4: EPA disagrees with the commenter that West Virginia 
cannot rely on CAIR for section 110(a)(2)(A) of the CAA. As discussed 
previously and as explained in detail in EPA's proposed rulemaking 
action related to today's rulemaking action, EPA believes that in light 
of the DC Circuit's decision to vacate CSAPR (see EME Homer City, 696 
F.3d 7), and the court's order for EPA to ``continue administering CAIR 
pending the promulgation of a valid replacement,'' it is appropriate 
for EPA to rely at this time on CAIR to support approval of West 
Virginia's 2008 eight-hour ozone infrastructure revision. EPA has been 
ordered by the DC Circuit to develop a new rule, and to continue 
implementing CAIR in the meantime. Unless the Supreme Court reverses or 
otherwise modifies the DC Circuit's decision on CSAPR in EME Homer 
City, EPA does not intend to act in a manner inconsistent with the 
decision of the DC Circuit. Based on the current direction from the 
court to continue administering CAIR, EPA believes that it is 
appropriate for West Virginia to rely on CAIR's requirements and 
provisions and is appropriate for EPA to consider CAIR for purposes of 
assessing the adequacy of West Virginia's infrastructure SIP revision 
with respect to ensuring attainment and maintenance of the 2008 NAAQS 
while a valid replacement rule is developed and until submissions 
complying with any such new rule are submitted by the states and acted 
upon by EPA or until the EME Homer City case is resolved in a way that 
provides different direction regarding CAIR and CSAPR.
    Furthermore, as neither the State of West Virginia nor EPA has 
taken any action to remove CAIR from the West Virginia SIP, CAIR 
remains part of the federally-approved SIP and can be considered in 
determining whether the SIP as a whole meets the requirement for 
section 110(a)(2)(A) of the CAA. In addition, EPA described in its TSD 
accompanying the July 2, 2013 NPR proposing approval of portions of the 
West Virginia 2008 infrastructure SIP for the 2008 ozone NAAQS how West 
Virginia had adequate provisions in its SIP, including, but not limited 
to, regulations concerning control measures for nitrogen oxides (NOx) 
and volatile organic compounds (VOC), such as 45CSR13, 45CSR14, 
45CSR19, 45CSR21, and 45CSR29, as enforceable emission limitations and 
other control measures, means, or techniques as necessary to meet 
applicable requirements of the CAA.\4\ Therefore, EPA disagrees with 
the commenter that EPA must disapprove the West Virginia infrastructure 
SIP submittal for element 110(a)(2)(A) as CAIR and the other measures 
identified in the TSD for 110(a)(2)(A) are enforceable limitations for 
meeting applicable requirements in the CAA as EPA explained in detail 
in the TSD.
---------------------------------------------------------------------------

    \4\ The TSD is available at www.regulations.gov, Docket ID 
Number EPA-R03-OAR-2013-0299. While EPA's TSD did not expressly 
reference CAIR in the discussion of West Virginia's measures 
addressing 110(a)(2)(A), the omission by EPA was inadvertent as the 
West Virginia ozone infrastructure SIP submittal included CAIR 
amongst other measures for section 110(a)(2)(A) and EPA's review 
included consideration of all the measures West Virginia included in 
its submission, including CAIR.
---------------------------------------------------------------------------

    EPA believes that section 110(a)(2)(A) of the CAA is reasonably 
interpreted to require states to submit SIPs that reflect the first 
step in their planning for attaining and maintaining a new or revised 
NAAQS and that they contain enforceable control measures and a 
demonstration that the state has the available tools and authority to 
develop and implement plans to attain and maintain the NAAQS. In light 
of the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.
    EPA's interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].'' In 
1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of the state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS. In 1990, many areas still had air quality not 
meeting the NAAQS and Congress again amended the CAA and added yet 
another layer of more prescriptive planning requirements for each of 
the NAAQS, with the primary provisions for ozone in section 182. At 
that same time, Congress modified section 110 to remove references to 
the section 110 SIP providing for attainment, including removing pre-
existing section 110(a)(2)(A) in its entirety and renumbering 
subparagraph (B) as section 110(a)(2)(A). Additionally, Congress 
replaced the clause ``as may be necessary to insure attainment and 
maintenance [of the NAAQS]'' with ``as may be necessary or appropriate 
to meet the applicable requirements of this chapter.'' Thus, the CAA 
has significantly evolved in the more than 40 years since it was 
originally enacted. While at one time section 110 of the CAA did 
provide the only detailed SIP planning provisions for states and 
specified that such plans must provide for attainment of the NAAQS, 
under the structure of the current CAA, section 110 is only the initial 
stepping-stone in the planning process for a specific NAAQS. And, more 
detailed, later-enacted provisions govern the substantive planning 
process, including planning for attainment of the NAAQS.
    EPA believes that the proper inquiry at this juncture is whether 
the State has met the basic structural SIP requirements appropriate at 
the point in time EPA is acting upon the submittal. Moreover, as 
addressed in EPA's proposed approval for this rulemaking action and 
mentioned earlier, West Virginia submitted a list of existing emission 
reduction measures in the SIP that control emissions of VOCs and NOx. 
West Virginia's SIP revision reflects several provisions that have the 
ability to reduce ground level ozone and its precursors. The West 
Virginia SIP relies on measures and programs used to implement previous 
ozone NAAQS. Because there is no substantive difference between the 
previous ozone NAAQS and the more recent ozone

[[Page 19007]]

NAAQS, other than the level of the standard, the provisions relied on 
by West Virginia will provide benefits for the new NAAQS; in other 
words, the measures reduce overall ground-level ozone and its 
precursors and are not limited to reducing ozone levels to meet one 
specific NAAQS.
    EPA asserts that section 110 of the CAA is only one provision that 
is part of the complicated structure governing implementation of the 
NAAQS program under the CAA, as amended in 1990, and it must be 
interpreted in the context of not only that structure, but also of the 
historical evolution of that structure. In light of the revisions to 
section 110 since 1970 and the later-promulgated and more specific 
planning requirements of the CAA, EPA reasonably interprets the 
requirement in section 110(a)(2)(A) of the CAA that the plan provide 
for ``implementation, maintenance and enforcement'' to mean that the 
infrastructure SIP must contain enforceable emission limits that will 
aid in attaining and/or maintaining the NAAQS and that the state 
demonstrate that it has the necessary tools to implement and enforce a 
NAAQS, such as adequate state personnel and an enforcement program. 
With regard to the requirement for emission limitations, EPA has 
interpreted this to mean for purposes of section 110, that the state 
may rely on measures already in place to address the pollutant at issue 
or any new control measures that the state may choose to submit. As EPA 
stated in ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated 
September 13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual 
purpose of an infrastructure SIP submission is to assure that the air 
agency's SIP contains the necessary structural requirements for the new 
or revised NAAQS, whether by establishing that the SIP already contains 
the necessary provisions, by making a substantive SIP revision to 
update the SIP, or both. Overall, the infrastructure SIP submission 
process provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    The commenter's reliance on 40 CFR 51.112 to support its argument 
that infrastructure SIPs must contain emission limits adequate to 
provide for timely attainment and maintenance of the standard is also 
not supported. As an initial matter, EPA notes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). And, 
it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 182, and not to infrastructure SIPs. In 
the preamble to EPA's 1986 action ``restructuring and consolidating'' 
provisions in part 51, EPA stated that the new attainment demonstration 
provisions in the 1977 Amendments to the CAA were ``beyond the scope'' 
of the rulemaking. See 51 FR 40656, November 7, 1986. It is important 
to note, however, that EPA's action in 1986 was not to establish new 
substantive planning requirements, but rather was meant merely to 
consolidate and restructure provisions that had previously been 
promulgated. EPA noted that it had already issued guidance addressing 
the new ``Part D'' attainment planning obligations. Id. Also, as to 
maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated in the 1986 
action on part 51 were intended to address control strategy plans. In 
the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 
CFR 51.13 (``Control strategy: SOX and PM (portion)''), 
51.14 (``Control strategy: CO, HC, OX and NO2 
(portion)''), 51.80 (``Demonstration of attainment: Pb (portion)''), 
and 51.82 (``Air quality data (portion)''). Id. at 40660. Thus, the 
present-day 40 CFR 51.112 contains consolidated provisions that are 
focused on control strategy SIPs, and an infrastructure SIP is not such 
a plan.
    Therefore, EPA finds 40 CFR 51.112 inapplicable to its analysis of 
the West Virginia ozone infrastructure SIP. EPA finds that CAIR and the 
other measures identified in the TSD for this rulemaking for section 
110(a)(2)(A) of the CAA are enforceable limitations and measures for 
limiting emissions of NOX and VOC for the 2008 ozone NAAQS.
    Comment 5: Sierra Club contends that EPA must disapprove West 
Virginia's infrastructure SIP revision because it relies on the 
``vacated'' rules, CAIR and CSAPR, to meet section 110(a)(2)(F) 
requirements that ensure source owners and operators install, maintain, 
and replace monitoring equipment and provide periodic reporting.
    Response 5: First, as EPA noted earlier, CAIR has not been 
``vacated'' as stated in Sierra Club's comment but was ultimately 
remanded by the D.C. Circuit to EPA without vacatur, and EPA continues 
to implement CAIR.\5\ Further, EPA notes that (as explained in detail 
above) as EPA continues to administer CAIR as directed by the D.C. 
Circuit, EPA believes it is appropriate for West Virginia's 
infrastructure SIP to rely on CAIR at this time until a new rule is 
developed. Therefore, as CAIR is enforceable and being implemented, 
West Virginia can cite to a provision related to CAIR for its 
submission for addressing section 110(a)(2)(F) requirements.
---------------------------------------------------------------------------

    \5\ As discussed above, since the vacatur of CSAPR in August 
2012 and with continued implementation of CAIR per the direction of 
the D.C. Circuit in EME Homer City, EPA has approved redesignations 
of areas to attainment of the 1997 PM2.5 NAAQS in which 
states have relied on CAIR as an enforceable measure. See 77 FR 
76415, December 28, 2012 (redesignation of Huntingdon-Ashland, West 
Virginia for 1997 PM2.5 NAAQS which was proposed in 77 FR 
68076, November 15, 2012); 78 FR 59841, September 30, 2013 
(redesignation of Wheeling, West Virginia for 1997 PM2.5 
NAAQS which was proposed in 77 FR 73575, December 11, 2012); and 78 
FR 56168, September 12, 2013 (redesignation of Parkersburg, West 
Virginia for 1997 PM2.5 NAAQS which was proposed in 77 FR 
73560, December 11, 2012).
---------------------------------------------------------------------------

    In addition, as discussed in EPA's TSD, West Virginia's 
infrastructure SIP submission for the 2008 ozone NAAQS listed numerous 
SIP provisions (including the provisions related to CAIR as well as 
regulations 45CSR13, 45CSR14, and 45CSR19) to support that the existing 
West Virginia SIP ensures source owners and operators install, maintain 
and replace monitoring equipment, provide periodic reporting and 
correlate reports with emission standards under the CAA for section 
110(a)(2)(F). EPA's TSD addressed how West Virginia's statutory and 
regulatory provisions provided for these requirements and most of these 
requirements are not related to CAIR. While 45CSR39 and 45CSR40, which 
are in the approved West Virginia SIP, address interstate transport of 
PM2.5, NOX, and ozone and are related to CAIR, 
these SIP provisions (45CSR39 and 45CSR40) also contain reporting and 
monitoring requirements (as are required for 110(a)(2)(F)) including 
references to federal provisions within 40 CFR part 75. Because EPA 
continues to implement CAIR and because the West Virginia SIP contains 
several provisions itemized in the TSD for this

[[Page 19008]]

rulemaking action addressing monitoring and reporting requirements for 
sources in West Virginia, EPA finds the West Virginia infrastructure 
SIP for the 2008 ozone NAAQS adequately addressed section 110(a)(2)(F), 
and EPA is taking final rulemaking action to approve the infrastructure 
SIP submission with respect to the requirements of section 110(a)(2)(F) 
of the CAA.

III. Final Action

    EPA is approving the following infrastructure elements or portions 
thereof of West Virginia's SIP revision: Section 110(a)(2)(A), (B), 
(C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). EPA has taken 
separate rulemaking action on the portions of section 110(a)(2)(C), 
(D)(i)(II), and (J) as they relate to West Virginia's PSD program and 
is taking separate action on section 110(a)(2)(E)(ii) as it relates to 
section 128 (State Boards). This rulemaking action does not include 
section 110(a)(2)(I) of the CAA which pertains to the nonattainment 
requirements of part D, Title I of the CAA, since this element is not 
required to be submitted by the 3-year submission deadline of section 
110(a)(1), and will be addressed in a separate process. This rulemaking 
action also does not include action on section 110(a)(2)(D)(i)(I), 
because this element, or portions thereof, is not required to be 
submitted by a state until the EPA has quantified a state's 
obligations. See EME Homer City, 696 F.3d 7.

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 June 6, 2014. 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, which satisfies certain infrastructure 
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS 
for the State of West Virginia, 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, Reporting and recordkeeping requirements, Ozone.

    Dated: March 21, 2014.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended 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 revising 
the entry for Section 110(a)(2) Infrastructure Requirements for the 
2008 8-Hour Ozone NAAQS. The amendment reads as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

[[Page 19009]]



----------------------------------------------------------------------------------------------------------------
  Name of non-regulatory SIP   Applicable geographic   State submittal     EPA approval          Additional
           revision                     area                 date              date             explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)              Statewide............   8/31/11, 2/17/12  10/17/12, 77 FR   Approval of the
 Infrastructure Requirements                                              63736.            following PSD-
 for the 2008 8-Hour Ozone                                                                  related elements or
 NAAQS.                                                                                     portions thereof:
                                                                                            110(a)(2)(C),
                                                                                            (D)(i)(II), and (J),
                                                                                            except taking no
                                                                                            action on the
                                                                                            definition of
                                                                                            ``regulated NSR
                                                                                            pollutant'' found at
                                                                                            45CSR14 section 2.66
                                                                                            only as it relates
                                                                                            to the requirement
                                                                                            to include
                                                                                            condensable
                                                                                            emissions of
                                                                                            particulate matter
                                                                                            in that definition.
                                                                                            See Sec.
                                                                                            52.2522(i).
                                                                2/17/12  4/7/2014 [Insert  This action addresses
                                                                          Federal           the following CAA
                                                                          Register page     elements, or
                                                                          number where      portions thereof:
                                                                          the document      110(a)(2)(A), (B),
                                                                          begins and        (C), (D), (E), (F),
                                                                          date].            (G), (H), (J), (K),
                                                                                            (L), and (M).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-07589 Filed 4-4-14; 8:45 am]
BILLING CODE 6560-50-P