[Federal Register Volume 82, Number 91 (Friday, May 12, 2017)]
[Rules and Regulations]
[Pages 22076-22079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09504]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0373; FRL-9961-87-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Infrastructure Requirements for the 2012 Fine 
Particulate Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
portions of a state implementation plan (SIP) revision submitted by the 
State of West Virginia. Whenever new or revised national ambient air 
quality standards (NAAQS) are promulgated, the Clean Air Act (CAA) 
requires states to submit a plan to address basic program elements, 
including, but not limited to, regulatory structure, monitoring, 
modeling, legal authority, and adequate resources necessary to assure 
implementation, maintenance, and enforcement of the NAAQS. These 
elements are referred to as infrastructure requirements. The State of 
West Virginia made a submittal addressing the infrastructure 
requirements for the 2012 fine particulate matter (PM2.5) 
NAAQS, and EPA is approving portions of this SIP revision in accordance 
with the requirements of the CAA.

DATES: This final rule is effective on June 12, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0373. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., 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 through 
http://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On July 16, 1997, the EPA promulgated a new 24-hour and a new 
annual NAAQS for PM2.5. See 62 FR 38652 (July 18, 1997). 
Subsequently, on December 14, 2012, the EPA revised the level of the 
health based (primary) annual PM2.5 standard to 12 
micrograms per cubic meter ([micro]g/m\3\). See 78 FR 3086 (January 15, 
2013).\1\
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    \1\ In EPA's 2012 PM2.5 NAAQS revision, EPA left 
unchanged the existing welfare (secondary) standards for 
PM2.5 to address PM related effects such as visibility 
impairment, ecological effects, damage to materials and climate 
impacts. This includes a secondary annual standard of 15 [mu]g/m\3\ 
and a 24-hour standard of 35 [mu]g/m\3\.
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    Pursuant to section 110(a)(1) of the CAA, states are required to 
submit SIPs meeting the applicable requirements of section 110(a)(2) 
within three years after promulgation of a new or revised NAAQS or 
within such shorter period as EPA may prescribe. Section 110(a)(2) 
requires states to address basic SIP elements such as requirements for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and

[[Page 22077]]

circumstances. In particular, the data and analytical tools available 
at the time the state develops and submits the SIP for a new or revised 
NAAQS affect the content of the submission. The content of such SIP 
submission may also vary depending upon what provisions the state's 
existing SIP already contains.

II. Summary of SIP Revision

    On November 17, 2015, the State of West Virginia, through the West 
Virginia Department of Environmental Protection (WVDEP), submitted a 
revision to its SIP to satisfy the requirements of section 110(a)(2) of 
the CAA for the 2012 PM2.5 NAAQS. On December 23, 2016 (81 
FR 94281), EPA published a notice of proposed rulemaking (NPR) 
proposing approval of portions of the West Virginia November 17, 2015 
SIP submittal. In the NPR, EPA proposed approval of the following 
infrastructure elements: Section 110(a)(2)(A), (B), (C), (D)(i)(II) 
(relating to prevention of significant deterioration), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M) of the CAA.
    At this time, EPA is not taking action on the portions of West 
Virginia's November 17, 2015 SIP submission which addressed section 
110(a)(2)(D)(i)(I) of the CAA relating to interstate transport of 
emissions, nor is the Agency taking action on the portion of the 
November 17, 2015 SIP submission which addressed section 
110(a)(2)(D)(i)(II) relating to visibility protection. EPA intends to 
take later separate action on these portions of West Virginia's 
submittal as explained in the NPR and the Technical Support Document 
(TSD), which accompanied the NPR. The TSD is available in the docket 
for this rulemaking which is also available online at 
www.regulations.gov. Finally, West Virginia did not address in its 
submittal section 110(a)(2)(I) which pertains to the nonattainment 
requirements of part D, title I of the CAA, because 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 if necessary.
    The rationale supporting EPA's proposed rulemaking action, 
including the scope of infrastructure SIPs in general, is explained in 
the published NPR and the TSD and will not be restated here. The NPR 
and TSD are available in the docket for this rulemaking at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2016-0373.

III. Public Comments and EPA's Responses

    EPA received two anonymous comments on the December 23, 2016 
proposed approval of portions of the West Virginia's 2012 
PM2.5 infrastructure SIP.
    Comment 1: One commenter asked why West Virginia is any different 
than other states and stated that how particulate matter is measured 
and ``the standard'' for particulate matter should be the same for all 
states. The commenter stated that ``[w]hat is safe in one State, should 
not be different than another.''
    Response 1: EPA thanks the commenter for the submitted statements. 
To clarify, West Virginia is not treated any differently than any other 
state in the United States under the CAA's NAAQS. Indeed, the 
``standard'' for particulate matter and how particulate matter is 
``measured'' (i.e., monitored) is the same for all states.
    Sections 108 and 109 of the CAA require EPA to promulgate primary 
NAAQS to protect public health and secondary NAAQS to protect public 
welfare. The NAAQS apply equally throughout all states. Once EPA sets a 
new or revised NAAQS, EPA must designate areas in every state as either 
attainment, unclassifiable, or nonattainment pursuant to section 
107(d)(1)(B) and states must develop, adopt, and submit to EPA for 
approval a SIP that contains emissions limitations and other control 
measures to attain and maintain the relevant NAAQS in accordance with 
section 110(a).
    Pursuant to sections 108 and 109 of the CAA, EPA has promulgated 
NAAQS for two sizes of particulate matter: PM10 and 
PM2.5.\2\ Because this action concerns the 2012 
PM2.5 NAAQS, EPA's response addresses the relevant NAAQS. On 
December 14, 2012, EPA revised the health based (primary) annual 
PM2.5 NAAQS to 12 [mu]g/m\3\, and this standard applies 
equally throughout all states. See 78 FR 3086 (January 15, 2013). Two 
years later, on December 14, 2014, EPA designated all areas in West 
Virginia as ``unclassifiable/attainment'' for the primary 2012 
PM2.5 NAAQS. See 80 FR 2206, 2278-2279 (January 15, 
2015).\3\ Finally, on November 17, 2015, West Virginia submitted a SIP 
revision to EPA to address the requirements of section 110(a)(2) of the 
CAA for the 2012 PM2.5 NAAQS and identified West Virginia's 
measures to attain and maintain that NAAQS.
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    \2\ Coarse particulate matter (PM10) are generally 10 
micrometers and smaller, while fine particulate matter (or 
PM2.5) consist of fine inhalable particles, with 
diameters that are generally 2.5 micrometers and smaller.
    \3\ The rule explains that ``EPA is designating areas as 
nonattainment, unclassifiable, or unclassifiable/attainment.''
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    Regarding measurement of particulate matter, state and, where 
applicable, local and/or tribal, agencies (referred to herein as 
``monitoring agencies'') are responsible for providing an air quality 
surveillance system in order to, among other goals, assess the extent 
of pollution, provide information on air quality trends, and support 
the implementation of air quality goals or standards (i.e., the NAAQS). 
Monitoring agencies are required to submit to EPA an annual monitoring 
network plan which provides for the documentation of the establishment 
and maintenance of their air quality surveillance system.\4\ These 
annual monitoring network plans require that ambient particulate matter 
data are collected through an approved network of specified ambient 
monitoring stations. Data from the approved monitoring stations are 
used to compare an area's air pollution levels against the NAAQS to 
make sure air quality is protective of public health and the 
environment. Monitoring agencies provide all ambient air quality data, 
including those related to PM2.5, to EPA through the 
Agency's Air Quality Management System (AQS).
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    \4\ Each monitoring agency must submit to EPA for approval an 
annual monitoring network plan that is in accordance with the 
monitoring requirements contained in 40 CFR parts 50, 53, and 58.
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    As discussed in the TSD for this action, WVDEP has the authority 
under state law ``to develop ways and means for the regulation and 
control of pollution of the air of the state'' and ``conduct such 
studies and research relating to air pollution and its control and 
abatement.'' EPA-R03-OAR-2016-0373-0006, p. 10. WVDEP currently 
operates and maintains an established network of ambient air monitors 
in West Virginia for the purpose of assessing compliance with the 2012 
PM2.5 NAAQS, and submits to EPA for approval, on an annual 
basis, a monitoring network plan, which describes how West Virginia is 
complying with monitoring requirements and explains any changes to the 
monitoring network. Id.; see also EPA-R03-OAR-2016-0373-0007 (Approval 
letter regarding WVDEP's 2015 annual monitoring network plan).
    In summary, the NAAQS apply to all states in the country, all 
states monitor (or measure) particulate matter in accordance with CAA 
statutory and regulatory requirements, and West Virginia is not treated 
any differently for such purposes.

[[Page 22078]]

    Comment 2: The commenter stated that ``[A]ir quality is important 
for our environment and our health. Infrastructure improvements can 
provide jobs as well.''
    Response 2: EPA thanks the commenter for the support for air 
quality and health. The commenter's statement regarding 
``infrastructure improvements'' likely reflects the commenter's concern 
for improvements to bridges and roads which are more traditionally 
understood as ``infrastructure'' in the United States. Thus, EPA 
believes the comment related to ``infrastructure improvements'' is 
likely unrelated to EPA's approval of West Virginia's 
``infrastructure'' SIP submittal which addresses requirements in CAA 
section 110(a)(2) to provide the necessary structural requirements such 
as emission limitations and monitoring requirements for attaining and 
maintaining the 2012 PM2.5 NAAQS in West Virginia. EPA 
described in detail in the NPR and in the TSD, which accompanied the 
NPR, how West Virginia's SIP provides the basic structural 
requirements. As the comment is not germane to EPA's rulemaking, no 
further response is provided.

IV. Final Action

    EPA is approving portions of the West Virginia's SIP revision 
regarding the infrastructure program elements specified in section 
110(a)(2)(A), (B), (C), (D)(i)(II) (relating to prevention of 
significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), 
and (M) of the CAA, or portions thereof, necessary to implement, 
maintain, and enforce the 2012 PM2.5 NAAQS. EPA will conduct 
separate rulemaking action on the portions of West Virginia's November 
17, 2015 SIP submission addressing section 110(a)(2)(D)(i)(I) of the 
CAA relating to interstate transport of emissions and addressing 
section 110(a)(2)(D)(i)(II) relating to visibility protection. This 
rulemaking action does not include any action addressing section 
110(a)(2)(I) of the CAA for the 2012 PM2.5 NAAQS which 
pertains to the nonattainment requirements of part D, Title I of the 
CAA, because 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, if necessary.

V. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 July 11, 2017. 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 approves portions of the West Virginia SIP 
submittal to address the CAA section 110(a)(2) infrastructure 
requirements for the 2012 PM2.5 NAAQS, may not be challenged 
later in proceedings to enforce its requirements. See CAA section 
307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: April 12, 2017.
Cecil Rodrigues,
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 adding 
the entry ``Section 110(a)(2) Infrastructure Requirements for the 2012 
PM2.5 NAAQS'' at the end of the table to read as follows:

[[Page 22079]]

Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

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  Name of non-regulatory SIP    Applicable  geographic       State                               Additional
           revision                      area           submittal date  EPA approval date       explanation
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                                                  * * * * * * *
Section 110(a)(2)               Statewide.............        11/17/15  5/12/17, [insert   This action addresses
 Infrastructure Requirements                                             Federal Register   the following CAA
 for the 2012 PM2.5 NAAQS.                                               citation].         elements:
                                                                                            110(a)(2)(A), (B),
                                                                                            (C), (D)(i)(II)
                                                                                            (prevention of
                                                                                            significant
                                                                                            deterioration),
                                                                                            (D)(ii), (E), (F),
                                                                                            (G), (H), (J), (K),
                                                                                            (L), and (M), or
                                                                                            portions thereof.
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[FR Doc. 2017-09504 Filed 5-11-17; 8:45 am]
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