[Federal Register Volume 80, Number 45 (Monday, March 9, 2015)]
[Rules and Regulations]
[Pages 12345-12349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05222]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0903; FRL-9924-02-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; State Boards Requirements; Infrastructure Requirements 
for the 2008 Ozone, 2010 Nitrogen Dioxide, and 2010 Sulfur Dioxide 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the West Virginia State 
Implementation Plan (SIP). The SIP revision addresses the State Boards 
requirements for all criteria pollutants of the National Ambient Air 
Quality Standards (NAAQS). EPA is also approving a related 
infrastructure element from the West Virginia February 21, 2012 SIP 
submittal for the 2008 ozone (O3) NAAQS, the December 13, 
2012 SIP submittal for the 2010 nitrogen dioxide (NO2) 
NAAQS, and the July 1, 2013 SIP submittal for the 2010 sulfur dioxide 
(SO2) NAAQS. EPA is approving this SIP revision in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on May 8, 2015 without further notice, 
unless EPA receives adverse written comment by April 8, 2015. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0903 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2014-0903, Marilyn Powers, Acting Associate 
Director, Office of Air Program Planning, Air Protection Division, 
Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0903. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in www.regulations.gov or 
in hard copy 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, 
WV 25304.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 128 of the CAA requires SIPs to include certain 
requirements regarding State Boards; section 110(a)(2)(E)(ii) of the 
CAA also references these requirements. Section 128(a) requires SIPs to 
contain provisions that: (1) Any board or body which approves permits 
or enforcement orders under the CAA shall have at least a majority of 
its members represent the public interest and not derive any 
significant portion of their income from persons subject to permits or 
enforcement orders under the CAA; and (2) any potential conflict of 
interest by members of such board or body or the head of an executive 
agency with similar powers be adequately disclosed. The requirements of 
section 128(a)(1) are not applicable to West Virginia because it does 
not have any board or body which approves air quality permits or 
enforcement orders. The

[[Page 12346]]

requirements of section 128(a)(2), however, are applicable because the 
head of the West Virginia Department of Environmental Protection 
(WVDEP), or his/her designees, approve permits or enforcement orders 
within West Virginia.
    On July 24, 2014, the State of West Virginia, through WVDEP, 
submitted a SIP revision to address the requirements of section 128 for 
all criteria pollutants of the NAAQS in relation to State Boards. The 
SIP revision consists of relevant portions of West Virginia Code 6B of 
the West Virginia Governmental Ethics Act for inclusion into the West 
Virginia SIP.
    In addition, this rulemaking action approves the section 
110(a)(2)(E)(ii) infrastructure element from the following West 
Virginia infrastructure SIP submittals for each identified NAAQS: 
February 21, 2012 for the 2008 O3 NAAQS, December 13, 2012 
for the 2010 NO2 NAAQS, and July 1, 2013 for the 2010 
SO2 NAAQS (collectively, the Three Submittals). For the 
Three Submittals, EPA had previously approved those submittals as 
addressing certain requirements in section 110(a)(2), and specifically 
stated EPA would take later separate action, for each of the NAAQS 
addressed, on section 110(a)(2)(E)(ii) which requires a state's SIP to 
meet the requirements of CAA section 128. See 79 FR 3504 (January 22, 
2014), 79 FR 19001 (April 7, 2014), and 79 FR 62022 (October 16, 2014).

II. Summary of SIP Revision

    This rulemaking action approves certain statutory provisions for 
the West Virginia SIP submitted by WVDEP to meet the requirements of 
section 128 of the CAA. Upon meeting the requirements of section 128, 
West Virginia will also meet the requirements of section 
110(a)(2)(E)(ii) of the CAA for all criteria pollutants of the NAAQS in 
relation to State Boards.
    WVDEP submitted these statutory provisions for inclusion in the 
West Virginia SIP to meet requirements of section 128. These West 
Virginia statutory provisions are in the West Virginia Governmental 
Ethics Act set forth in West Virginia Code 6B, specifically in W.V. 
Code section 6B-1-3 (Definitions), section 6B-2-6 (Financial disclosure 
statement; filing requirements), and section 6B-2-7 (Financial 
disclosure statement; contents). In the July 24, 2014 SIP submittal, 
WVDEP states that any potential conflicts of interest by the head of an 
executive agency that approves permits or enforcement orders must be 
disclosed pursuant to the West Virginia Governmental Ethics Act found 
in W.V. Code sections 6B-1-3, 6B-2-6, and 6B-2-7. In order to meet the 
requirements of CAA sections 128 and 110(a)(2)(E)(ii), West Virginia is 
seeking to incorporate into the SIP these relevant provisions of the 
West Virginia Code.

III. The State Boards Requirements and EPA's Analysis of West 
Virginia's Submittal

    As previously stated, section 128 of the CAA requires that SIPs 
include provisions which provide: (1) Any board or body which approves 
permits or enforcement orders under the CAA have at least a majority of 
its members represent the public interest and not derive any 
significant portion of their income from persons subject to permits or 
enforcement orders under the CAA; and (2) any potential conflict of 
interest by members of such board or body or the head of an executive 
agency with similar powers be adequately disclosed.
    The requirements of section 128(a)(1) are not applicable to West 
Virginia because it does not have any board or body which approves air 
quality permits or enforcement orders. To address requirements in 
section 128(a)(2), West Virginia submitted for incorporation into its 
SIP the relevant portions of the West Virginia Code 6B, specifically 
W.V. Code sections 6B-1-3 (Definitions), 6B-2-6 (Financial disclosure 
statement; filing requirements), and 6B-2-7 (Financial disclosure 
statement; contents).
    According to WVDEP, the Secretary of WVDEP, or his/her designees, 
approve all CAA permits and enforcement orders in West Virginia. West 
Virginia Code 6B at W.V. Code section 6B-2-6 and section 6B-2-7 require 
secretaries of departments, commissioners, deputy commissioners, 
assistant commissioners, directors, deputy directors, assistant 
directors, department heads, deputy department heads and assistant 
department heads to disclose annually relevant information including 
certain direct and indirect financial interests, employment, business 
interests, income and sources of income, financial liabilities, 
participation on boards of directors, and gifts. The West Virginia Code 
at W.V. Code section 6B-1-3 also contains relevant definitions for 
terms used in W.V. Code sections 6B-2-6 and 6B-2-7. EPA finds these 
West Virginia statutory provisions provide for adequate disclosure of 
potential conflicts of interest. This SIP revision will incorporate 
existing West Virginia law into the SIP and demonstrates that West 
Virginia complies with the requirements of sections 128 for all NAAQS 
pollutants through the relevant sections of West Virginia Code 6B. 
Thus, EPA finds the July 24, 2014 SIP submittal addresses the relevant 
State Boards requirements in section 128 for West Virginia.

IV. Infrastructure Requirements and EPA's Analysis of West Virginia's 
Submittals

    Whenever new or revised 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. In particular, the 
infrastructure requirements of section 110(a)(2)(E)(ii) require that 
each state's SIP meet the requirements of section 128.
    On the following dates, and for the applicable NAAQS, West Virginia 
submitted infrastructure SIP submittals to meet the requirements of CAA 
section 110(a)(2): February 21, 2012 for the 2008 O3 NAAQS, 
December 13, 2012 for the 2010 NO2 NAAQS, and July 1, 2013 
for the 2010 SO2 NAAQS.
    EPA has approved these submittals as meeting certain requirements 
or elements in section 110(a)(2) for the applicable NAAQS but has 
stated in each of these approvals that EPA would take later, separate 
action for requirements in section 110(a)(2)(E)(ii). For a discussion 
of EPA's approach to reviewing infrastructure SIPs, including our 
longstanding interpretation of requirements for section 110(a)(1) and 
(2), our interpretation that the CAA allows states to make multiple SIP 
submissions separately addressing infrastructure SIP elements in 
section 110(a)(2) for a specific NAAQS, and our interpretation that EPA 
has the ability to act on separate elements of 110(a)(2) for a NAAQS in 
separate rulemaking actions, see our proposed approvals of West 
Virginia's infrastructure SIPs for the 2008 O3 NAAQS and the 
2010 NO2 and SO2 NAAQS. See 78 FR 39650 (July 2, 
2013) (2008 O3 NAAQS), 78 FR 65593 (November 1, 2013) (2010 
NO2 NAAQS), and 79 FR 27524 (May 14, 2014) (2010 
SO2 NAAQS).
    With the July 24, 2014 SIP submittal from West Virginia, EPA finds 
that the West Virginia SIP adequately addresses all requirements in CAA 
section 128 and section 110(a)(2)(E)(ii). Thus, EPA is now approving 
the section

[[Page 12347]]

110(a)(2)(E)(ii) infrastructure element for the Three Submittals for 
the 2008 O3, 2010 NO2, and 2010 SO2 
NAAQS.

V. Final Action

    EPA is approving the July 24, 2014 West Virginia SIP revision that 
addresses the requirements of sections 128 and 110(a)(2)(E)(ii) of the 
CAA for all criteria pollutants of the NAAQS. EPA is also specifically 
approving West Virginia's February 21, 2012 SIP revision for the 2008 
O3 NAAQS, the December 13, 2012 SIP revision for the 2010 
NO2 NAAQS, and the July 1, 2013 SIP revision for the 2010 
SO2 NAAQS as addressing the requirements in section 
110(a)(2)(E)(ii) of the CAA. EPA is publishing this rule without prior 
proposal because EPA views this as a noncontroversial amendment and 
anticipates no adverse comment. However, in the ``Proposed Rules'' 
section of today's Federal Register, EPA is publishing a separate 
document that will serve as the proposal to approve the SIP revision if 
adverse comments are filed. This rule will be effective on May 8, 2015 
without further notice unless EPA receives adverse comment by April 8, 
2015. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

VI. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the West Virginia Code sections described in the proposed 
amendments to 40 CFR part 52 set forth below. The EPA has made, and 
will continue to make, these documents generally available 
electronically through www.regulations.gov and/or in hard copy at the 
appropriate EPA office (see the ADDRESSES section of this preamble for 
more information).

VII. 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 May 8, 2015. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking action. This action, approving West Virginia submissions 
meeting section 128 and approving the infrastructure element E(ii) for 
three NAAQS submittals, may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: February 12, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

[[Page 12348]]

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:
0
a. Paragraph (c) is amended by adding a table entitled ``EPA-Approved 
Regulations and Statutes'' after the existing table; and
0
b. The table in paragraph (e) is amended by revising the entries for:
0
i. Section 110(a)(2) Infrastructure Requirements for the 2008 8-Hour 
Ozone NAAQS,
0
ii. Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen 
dioxide NAAQS, and Section 110(a)(2) Infrastructure Requirements for 
the 2010 1-Hour Sulfur Dioxide NAAQS.
    The addition and revisions read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                      EPA-Approved Regulations and Statutes
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                                                       State
     State citation            Title/subject         effective       EPA approval date      Explanation [former
                                                       date                                    SIP citation]
----------------------------------------------------------------------------------------------------------------
                        West Virginia Code 6B--Ethics Standards and Financial Disclosure
----------------------------------------------------------------------------------------------------------------
6B-1-3..................  Definitions...........       10/1/2014  3/9/2015 [Insert        Addresses CAA section
                                                                   Federal Register        128.
                                                                   citation].
6B-2-6..................  Financial disclosure         10/1/2014  3/9/2015 [Insert        Addresses CAA section
                           statement; filing                       Federal Register        128.
                           requirements.                           citation].
6B-2-7..................  Financial disclosure         10/1/2014  3/9/2015 [Insert        Addresses CAA section
                           statement; contents.                    Federal Register        128.
                                                                   citation].
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
  Name of non-regulatory SIP        Applicable                               EPA approval        Additional
           revision               geographic area    State submittal 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, 79 FR  This action
                                                                            19001.           addresses the
                                                                                             following CAA
                                                                                             elements, or
                                                                                             portions thereof:
                                                                                             110(a)(2)(A), (B),
                                                                                             (C), (D), (E), (F),
                                                                                             (G), (H), (J), (K),
                                                                                             (L), and (M).
                                                     7/24/14.............  3/9/15 [Insert   Addresses CAA
                                                                            Federal          element
                                                                            Register         110(a)(2)(E)(ii).
                                                                            citation].
 
                                                  * * * * * * *
Section 110(a)(2)              Statewide...........  12/13/12............  1/22/14, 78 FR   This action
 Infrastructure Requirements                                                3504.            addresses the
 for the 2010 nitrogen                                                                       following CAA
 dioxide NAAQS.                                                                              elements:
                                                                                             110(a)(2)(A), (B),
                                                                                             (C), (D), (E), (F),
                                                                                             (G), (H), (J), (K),
                                                                                             (L), and (M), or
                                                                                             portions thereof.
                                                     7/24/14.............  3/9/15 [Insert   Addresses CAA
                                                                            Federal          element
                                                                            Register         110(a)(2)(E)(ii).
                                                                            citation].
 
                                                  * * * * * * *
Section 110(a)(2)              Statewide...........  6/25/13.............  10/16/14, 79 FR  This action
 Infrastructure Requirements                                                62035.           addresses the
 for the 2010 1-Hour Sulfur                                                                  following CAA
 Dioxide NAAQS.                                                                              elements:
                                                                                             110(a)(2)(A), (B),
                                                                                             (C) (enforcement
                                                                                             and minor new
                                                                                             source review),
                                                                                             (D)(ii), (E)(i) and
                                                                                             (iii), (F), (G),
                                                                                             (H), (J)
                                                                                             (consultation,
                                                                                             public
                                                                                             notification, and
                                                                                             visibility
                                                                                             protection), (K),
                                                                                             (L), and (M).
                                                     7/24/14.............  3/9/15 [Insert   Addresses CAA
                                                                            Federal          element
                                                                            Register         110(a)(2)(E)(ii).
                                                                            citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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[FR Doc. 2015-05222 Filed 3-6-15; 8:45 am]
 BILLING CODE 6560-50-P