[Federal Register Volume 83, Number 27 (Thursday, February 8, 2018)]
[Rules and Regulations]
[Pages 5540-5543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02463]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0574; FRL-9974-12-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Removal of Clean Air Interstate Rule Trading Programs 
Replaced by Cross-State Air Pollution Rule Trading Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving state 
implementation plan (SIP) revisions submitted by the State of West 
Virginia. These revisions pertain to two West Virginia regulations that 
established trading programs under the Clean Air Interstate Rule 
(CAIR). The EPA-administered trading programs under CAIR were 
discontinued on December 31, 2014 upon the implementation of the Cross-
State Air Pollution Rule (CSAPR), which was promulgated by EPA to 
replace CAIR. CSAPR established federal trading programs for sources in 
multiple states, including West Virginia, that replace the CAIR state 
and federal trading programs. The submitted SIP revisions request 
removal of state regulations that implemented the CAIR annual nitrogen 
oxide (NOX) and annual sulfur dioxide (SO2) 
trading programs from the West Virginia SIP (as CSAPR has replaced 
CAIR). EPA is approving these SIP revisions in accordance with the 
requirements of the Clean Air Act (CAA). West Virginia's SIP revision 
submittal requesting removal of a state regulation that implemented the 
CAIR ozone season NOX trading program will be addressed in a 
separate action.

DATES: This final rule is effective on March 12, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0574. All documents in the docket are listed on 
the http://www.regulations.govwebsite. 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: Marilyn Powers, (215) 814-2308, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to 
address transported emissions that significantly contributed to 
downwind states' nonattainment and interfered with maintenance of the 
1997 ozone and fine particulate matter (PM2.5) national 
ambient air quality standards (NAAQS). CAIR required 28 states, 
including West Virginia, to revise their SIPs to reduce emissions of 
NOX and SO2, precursors to the formation of 
ambient ozone and PM2.5. Under CAIR, EPA provided model 
state rules for separate cap and trade programs for annual 
NOX, ozone season NOX, and annual SO2. 
The annual NOX and annual SO2 trading programs 
were designed to address transported PM2.5 pollution, while 
the ozone season NOX trading program was designed to address 
transported ozone pollution. EPA also promulgated CAIR federal 
implementation plans (FIPs) with CAIR federal trading programs that 
would address each state's CAIR requirements in the event that a CAIR 
SIP for the state was not submitted or approved (71 FR 25328, April 28, 
2006). Generally, both the model state rules and the federal trading 
program rules applied only to electric generating units (EGUs), but in 
the case of the model state rule and federal trading program for ozone 
season NOX emissions, each state had the option to submit a 
CAIR SIP revision that expanded applicability to include certain non-
EGUs that formerly participated in the NOX Budget Trading 
Program under the NOX SIP Call.\1\ West Virginia submitted, 
and EPA approved, a CAIR SIP revision based on the model state rules 
establishing CAIR state trading programs for annual SO2, 
annual NOX, and ozone season NOX emissions, with 
certain non-EGUs included in the state's CAIR ozone season 
NOX trading program. See 74 FR 38536 (August 4, 2009).
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    \1\ In October 1998, EPA finalized the ``Finding of Significant 
Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone''--commonly called the NOX SIP Call. 
See 63 FR 57356 (October 27, 1998).
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    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR. North Carolina v. EPA, 550 F.3d 1176 (Dec. 
23, 2008). The ruling allowed CAIR to remain in effect temporarily 
until a replacement rule consistent with the Court's opinion was 
developed. While EPA worked on developing a replacement rule, the CAIR 
program continued as planned with the NOX annual and ozone 
season programs beginning in 2009 and the SO2 annual program 
beginning in 2010.
    On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's 
remand, EPA promulgated CSAPR to replace CAIR in order to address the 
interstate transport of emissions contributing to nonattainment and 
interfering with maintenance of the two air quality standards covered 
by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR required EGUs 
in affected states, including West Virginia, to participate in federal 
trading programs to reduce annual SO2, annual 
NOX, and/or ozone season NOX emissions. The rule 
also contained provisions that would sunset CAIR-related obligations on 
a schedule coordinated with the implementation of the CSAPR compliance 
requirements. CSAPR was to become effective January 1, 2012; however, 
the timing of CSAPR's implementation was impacted by a number of court 
actions. Numerous

[[Page 5541]]

parties filed petitions for review of CSAPR in the D.C. Circuit, and on 
December 30, 2011, the D.C. Circuit stayed CSAPR prior to its 
implementation and ordered EPA to continue administering CAIR on an 
interim basis. On August 21, 2012, the court issued its ruling, 
vacating and remanding CSAPR to EPA and ordering continued 
implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 
F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was 
reversed by the United States Supreme Court on April 29, 2014, and the 
case was remanded to the D.C. Circuit to resolve remaining issues in 
accordance with the Supreme Court's ruling. EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit 
affirmed CSAPR in most respects but remanded certain state emissions 
budgets, including the Phase 2 ozone season NOX budget for 
West Virginia. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 
138 (D.C. Cir. 2015).
    Throughout the initial round of D.C. Circuit proceedings and the 
ensuing Supreme Court proceedings, the stay on CSAPR remained in place, 
and EPA continued to implement CAIR. Following the April 2014 Supreme 
Court decision, EPA filed a motion asking the D.C. Circuit to lift the 
stay in order to allow CSAPR to replace CAIR in an equitable and 
orderly manner while further D.C. Circuit proceedings were held to 
resolve remaining claims from petitioners.
    Additionally, EPA's motion requested delay, by three years, of all 
CSAPR compliance deadlines that had not passed as of the approval date 
of the stay. On October 23, 2014, the D.C. Circuit granted EPA's 
request, and on December 3, 2014 (79 FR 71663), in an interim final 
rule, EPA set the updated effective date of CSAPR as January 1, 2015 
and delayed the implementation of CSAPR Phase I to 2015 and CSAPR Phase 
2 to 2017. In accordance with the interim final rule, EPA stopped 
administering the CAIR state and federal trading programs with respect 
to emissions occurring after December 31, 2014, and EPA began 
implementing CSAPR on January 1, 2015.\2\
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    \2\ EPA solicited comment on the interim final rule and 
subsequently issued a final rule affirming the amended compliance 
schedule after consideration of comments received. 81 FR 13275 
(March 14, 2016).
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    In October 2016, EPA promulgated the CSAPR Update (81 FR 74504, 
Oct. 26, 2016). In the CSAPR Update, EPA responded to the remand of 
West Virginia's Phase 2 ozone season NOX budget by 
withdrawing the requirement for West Virginia EGUs to participate, 
after 2016, in the original CSAPR ozone season NOX trading 
program, which had addressed the state's transport obligations with 
respect to the 1997 ozone NAAQS and required the state's EGUs to 
participate starting in 2017 in a new CSAPR ozone season NOX 
trading program to address (in part) the state's transport obligations 
with respect to the 2008 ozone NAAQS.
    As noted above, starting in January 2015, the CSAPR federal trading 
programs for annual NOX, ozone season NOX and 
annual SO2 were applicable in West Virginia. Thus, since 
January 1, 2015, EPA has not administered the CAIR state trading 
programs for annual NOX, ozone season NOX, or 
annual SO2 emissions established by the West Virginia 
regulations.
    On July 13, 2016, the State of West Virginia, through the West 
Virginia Department of Environmental Protection (WVDEP), submitted 
three SIP revisions requesting EPA to remove from its SIP three 
regulations that implemented the CAIR state trading programs: 
Regulation 45CSR39--Control of Annual Nitrogen Oxides Emissions, 
Regulation 45CSR40--Control of Ozone Season Nitrogen Oxides Emissions, 
and Regulation 45CSR41--Control of Annual Sulfur Dioxide Emissions. On 
September 25, 2017 (41 FR 44525), EPA published a direct final 
rulemaking notice (DFRN) for the State of West Virginia. In the DFRN, 
EPA approved the West Virginia SIP submittals requesting removal of 
Regulation 45CSR39 and Regulation 45CSR41 from the West Virginia SIP, 
and explained that it would take separate action on Regulation 45CSR40 
at a future date. On the same date (41 FR 44544), EPA published a 
notice of proposed rulemaking (NPR) for the removal action. EPA 
published the DFRN without prior proposal because the Agency viewed the 
submittals as noncontroversial and anticipated no adverse comments. EPA 
explained that if adverse comments were received during the comment 
period, the DFRN would be withdrawn and all public comments received 
would be addressed in a subsequent final rule based on the September 
25, 2017 proposed rule. EPA received an adverse comment, and on 
December 12, 2017 (82 FR 58341), withdrew the DFRN.

II. Summary of SIP Revision and EPA Analysis

    WVDEP submitted two SIP revisions on July 13, 2016 that requested 
the removal from the West Virginia SIP of the State's regulations 
(45CSR39 and 45CSR41) which implemented respectively West Virginia's 
state CAIR annual NOX and annual SO2 trading 
programs. As noted previously, the CAIR annual NOX and 
SO2 reduction programs addressed interstate transport of 
emissions for the 1997 PM2.5 NAAQS. The D.C. Circuit 
remanded CAIR to EPA for replacement, and in response EPA promulgated 
CSAPR which, among other things, fully addresses West Virginia's 
interstate transport obligations with regard to the 1997 
PM2.5 NAAQS. See 76 FR at 48210. Once the transport 
obligations formerly addressed through the CAIR trading programs began 
to be addressed through implementation of the CSAPR trading programs in 
January 2015, EPA stopped administering the CAIR trading programs, 
including West Virginia's state CAIR annual NOX and 
SO2 programs created by 45CSR39 and 45CSR41. Consequently, 
these two state rules no longer play any role in remedying the 
transport obligation that the state adopted them to address, which is 
now being met through other rules. Further, these two state rules do 
not serve any other purpose (such as helping to address requirements 
for certain non-EGUs under the NOX SIP Call). Therefore, EPA 
determines it is appropriate for these two state regulations 
implementing CAIR to be removed in their entirety from the West 
Virginia SIP.

III. Public Comments and EPA Responses

    One commenter submitted two comments on the proposed approval of 
WVDEP's July 13, 2016 submittals requesting removal of Regulations 
45CSR39 and 45CSR41 from the West Virginia SIP.
    Comment 1: The commenter stated that EPA can only remove the CAIR 
NOX annual and SO2 annual trading programs at the 
same time as the NOX ozone season program, and EPA cannot 
remove two of the three programs without adequately explaining why 
these programs can be removed separately.
    EPA Response to Comment 1: West Virginia's regulations that 
implemented the CAIR trading programs were established in three 
separate regulations: Regulation 45CSR39--Control of Annual Nitrogen 
Oxides Emissions, Regulation 45CSR40--Control of Ozone Season Nitrogen 
Oxides Emissions, and Regulation 45CSR41--Control of Annual Sulfur 
Dioxide Emissions. These regulations were designed to allow West 
Virginia to participate in the regional trading programs administered 
by EPA to meet the requirements of CAIR. The regional trading programs 
under CAIR were

[[Page 5542]]

separate trading programs for annual NOX, ozone season 
NOX, and annual SO2, and affected states had the 
flexibility to participate in one or more of the trading programs. 
Adoption of one of the trading programs in a SIP was not dependent on 
adoption of any of the other trading programs into the state's SIP, and 
each is therefore severable from one another. West Virginia submitted 
three stand-alone SIP submittals on July 13, 2016, each submittal 
requesting removal of one of the three CAIR regulations from the West 
Virginia SIP. As these were three separate submittals to remove 
separate state regulations for separate regional trading programs, EPA 
can take independent action on each of the submittals in accordance 
with section 110 of the CAA. The commenter has not cited any authority 
that precludes EPA from taking such independent actions, or any harm 
that would arise from EPA's approval of West Virginia's of the CAIR 
NOX annual and SO2 annual trading programs 
separate from the NOX ozone season trading program.
    Comment 2: The commenter also stated that EPA cannot simply say 
that the removals are in accordance with section 110(l) of the CAA, but 
needs to explain how the removals meet the section 110(l) requirements.
    EPA Response to Comment 2: Regarding the commenter's concerns with 
respect to the requirements of CAA section 110(l), as noted previously 
in this rulemaking and in the DFRN, EPA is no longer administering the 
CAIR trading programs for annual NOX and SO2, 
including West Virginia's State CAIR programs created by 40CSR39 and 
40CSR41. Because the State CAIR trading programs created by these rules 
are no longer being implemented, and because the rules serve no other 
purpose, removal of the rules from the SIP does not interfere with any 
applicable requirement concerning attainment or any other requirement 
of the CAA.

IV. Final Action

    EPA is approving the two July 13, 2016 West Virginia SIP revision 
submissions which seek removal from the West Virginia SIP of Regulation 
45CSR39 that implemented the CAIR annual NOX trading program 
and Regulation 45CSR41 that implemented the CAIR annual SO2 
trading program. Removal of these two regulations from the West 
Virginia SIP is in accordance with section 110 of the CAA.

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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 removing West Virginia regulations 45CSR39 
and 45CSR41 from the West Virginia SIP 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 April 9, 2018. 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 removing West Virginia regulations 45CSR39 and 45CSR41 
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, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: January 25, 2018.
Cosmo Servidio,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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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


Sec.  52.2520   [Amended]

0
2. In Sec.  52.2520, the table in paragraph (c) is amended by:
0
a. Removing the table heading ``[45 CSR] Series 39 Control of Annual 
Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine 
Particulate Matter and Nitrogen Oxides'' and the entries ``Section 45-
39-1'' through ``Section 45-39-90'';
0
b. Removing the table heading ``[45 CSR] Series 41 Control of Annual 
Sulfur Dioxides Emissions'' and the entries ``Section 45-41-1'' through 
``Section 45-41-90''.

[FR Doc. 2018-02463 Filed 2-7-18; 8:45 am]
 BILLING CODE 6560-50-P