[Federal Register Volume 83, Number 57 (Friday, March 23, 2018)]
[Rules and Regulations]
[Pages 12677-12680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05877]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0413; FRL-9975-88--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; 2015 Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
revisions to the State of West Virginia state implementation plan 
(SIP). The revisions update the effective date by which the West 
Virginia regulations incorporate by reference the national ambient air 
quality standards (NAAQS), additional monitoring methods, and 
additional equivalent monitoring methods. This update will effectively 
add the following to the West Virginia SIP: The 2015 ozone NAAQS, 
monitoring reference and equivalent methods pertaining to fine 
particulate matter (PM2.5), Carbon Monoxide (CO), and course 
particulate matter (PM10), and it will revise the ozone 
monitoring season, the Federal Reference Method (FRM), the Federal 
Equivalent Method (FEM), and the Photochemical Assessment Monitoring 
Stations (PAMS) network. The SIP revision will also change a reference 
from the ``West Virginia Department of Environmental Protection,'' to 
the ``Division of Air Quality.'' EPA is approving these revisions in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on April 23, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0413. All documents in the docket are listed on 
the http://www.regulations.gov website. 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: Joseph Schulingkamp, (215) 814-2021, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 13, 2017, the State of West Virginia through the West 
Virginia Department of Environmental Protection (WVDEP) submitted a 
formal revision to West Virginia's SIP pertaining to amendments of 
Legislative Rule, 45 CSR 8--Ambient Air Quality Standards. The SIP 
revision consists of revising the effective date of the incorporation 
by reference of 40 CFR parts 50 and 53.

II. Summary of SIP Revision and EPA Analysis

    West Virginia has submitted this SIP revision to update the State's 
incorporation by reference of 40 CFR part 50, which contains the 
Federal NAAQS, and 40 CFR part 53, which contains the ambient air 
monitoring reference methods and equivalent reference methods. 
Currently, the version of 45 CSR 8 in the West Virginia SIP 
incorporates by reference 40 CFR parts 50 and 53 as effective on June 
1, 2013; this SIP revision will update the effective date to June 1, 
2016.
    In the June 13, 2017 SIP submittal, WVDEP submitted amendments to 
the legislative rule which include the following changes: To section 
45-8-1 (General), the filing and effective dates are changed to reflect 
the update of the legislative rule; to section 45-8-3 (Adoption of 
Standards), the effective dates for the incorporation by reference of 
40 CFR part 50 and part 53 are changed; to section 45-8-4 
(Inconsistency Between Rules), the reference to the ``West Virginia 
Department of Environmental Protection,'' is changed to the ``Division 
of Air Quality.'' West Virginia has amended 45 CSR 8 to revise the 
filing

[[Page 12678]]

and effective dates of the rule to May 15, 2017 and June 1, 2017 
respectively. The effective date of the incorporation by reference of 
40 CFR parts 50 and 53 changed from June 1, 2013 to June 1, 2017. EPA 
finds the revised version of 45 CSR 8 with new effective dates 
incorporating by reference 40 CFR part 50 and part 53, as well as the 
changes to the reference of the state air agency, are in accordance 
with requirements in section 110 of the CAA.\1\
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    \1\ This action, which approves West Virginia's rules 
incorporating by reference the NAAQS as of a certain date, is not 
affected by the recent decision in South Coast Air Quality Mgmt. 
Dist. v. EPA, No. 15-1115 (D.C. Cir. Feb. 16, 2018).
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    This update will effectively add the following to the West Virginia 
SIP: The 2015 ozone NAAQS, monitoring reference and equivalent methods 
pertaining to PM2.5, CO, and PM10, and it will 
revise the ozone monitoring season to March 1st through October 31st, 
the FRM, the FEM, and the PAMS network.
    On October 16, 2017 (82 FR 47981 and 82 FR48033), EPA 
simultaneously published a notice of proposed rulemaking (NPR) and a 
direct final rule (DFR) for the State of West Virginia approving the 
SIP revision. EPA received five comments on the rulemaking and withdrew 
the DFR prior to the effective date of December 15, 2017.

III. Response to Comments

    During the comment period, EPA received several anonymous comments 
on EPA's rulemaking. EPA is responding to comments submitted on the 
proposed revision to the West Virginia SIP specific to this action. All 
other comments received were either supportive of or not specific to 
this action and thus are not addressed here.
    Comment #1: The commenter expressed a desire for EPA to, 
``[s]uspend or rescind the [past] admin rule.'' The commenter then 
continued with statements not specific to this action by copying 
sections from EPA's ``Policy Assessment for the Review of the Primary 
National Ambient Air Quality Standard for Sulfur Oxides, External 
Review Draft'' (August 2017, EPA-452/P-17-003) (Draft PA) without 
providing any specific argument.
    Response #1: The comment lacks any specifics regarding what action 
EPA should take regarding our proposal to incorporate by reference for 
the West Virginia SIP 45 CSR 8 which incorporates all NAAQS. Based on 
the context of the comment, it appears the comment is requesting that 
EPA suspend or rescind the 2010 Sulfur Dioxide (SO2) NAAQS 
due to a lack of available information.
    EPA is not in this action revising any SO2 NAAQS nor any 
NAAQS and as such the references to the Draft PA are irrelevant. In 
this action, EPA is approving, in accordance with CAA section 110, West 
Virginia's request to incorporate by reference NAAQS EPA has previously 
promulgated in separate unrelated rulemakings. As the comment regarding 
suspending or rescinding prior ``admin'' rules such as the NAAQS is not 
germane to this rulemaking, EPA provides no further response.
    Comment #2: A second comment stated that EPA should not add the 
2015 ozone standard to any state's SIP as the Administrator has 
publicly stated the he intends to repeal the ozone standard. The 
commenter believes that his announcement can be interpreted as a 
promulgation by the Agency, and EPA should not act until the review is 
completed. The commenter also stated that EPA must hold off on any 
ozone action until a court review is completed.
    Response #2: EPA disagrees with the commenter's assertion that the 
Agency has promulgated a repeal of the 2015 ozone NAAQS through public 
announcement. Until the Agency, through public notice and rulemaking, 
revises any NAAQS, including the 2015 ozone NAAQS, the NAAQS remain in 
place and states may seek to incorporate such NAAQS into their SIPs 
under CAA section 110. In 45 CSR 8, West Virginia updated the effective 
date of its incorporation by reference of the most recent version of 
the Code of Federal Regulations (CFR) so that West Virginia could 
incorporate by reference in its SIP all updated EPA NAAQS. While 
judicial action is pending relating to implementation of the 2015 ozone 
NAAQS, nothing prohibits a state like West Virginia from incorporating 
by reference the 2015 ozone NAAQS into its SIP.
    Comment #3: The final comment expressed a desire for EPA to allow 
the state to incorporate the Federal standards (i.e., NAAQS) on an 
ongoing basis so that the State does not have to expend taxpayer 
dollars and resources each time EPA updates 40 CFR parts 50 and 53 with 
new or revised NAAQS. The commenter also expressed a desire for EPA to, 
``slow down the regulatory changes and allow states to meet the current 
standards before imposing new burdens on the states.''
    Response #3: Nothing in the CAA requires states to incorporate the 
Federal standards each time EPA updates a NAAQS in 40 CFR parts 50 and 
53. West Virginia has decided to incorporate the NAAQS in 45 CSR 8 that 
are effective as of a certain date. West Virginia's action is 
responsive to state concerns and limitations and is consistent with the 
CAA, thus this SIP submittal can be approved in this final action.

IV. Final Action

    EPA is approving the amendments to Legislative Rule, 45 CSR 8--
Ambient Air Quality Standards, into the West Virginia SIP pursuant to 
section 110 of the CAA.

V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the update to West Virginia's Legislative Rule, 
45 CSR 8, as effective on June 1, 2017. EPA has made, and will continue 
to make, these materials generally available through 
www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the For Further Information Contact section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference by the Director of the Federal Register in the next update of 
the SIP compilation.\2\
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    \2\ 62 FR 27968 (May 22, 1997).
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VI. 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

[[Page 12679]]

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 (Public Law 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 22, 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, to approve West Virginia's SIP revisions to update 
of the effective date by which the State regulations incorporate by 
reference the Federal NAAQS, additional monitoring methods, and 
additional equivalent monitoring methods, which effectively adds the 
2015 ozone NAAQS and ambient air monitoring reference and equivalent 
methods pertaining to PM2.5, PM10, and CO, and 
changing the reference to the state air agency, may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: March 13, 2018.
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 entitled ``EPA-Approved Regulations in 
the West Virginia SIP'' in paragraph (c) is amended by revising the 
entries for sections 45-8-1 through 45-8-4 to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved Regulations in the West Virginia SIP
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                                                                                                 Additional
 State citation [chapter 16-20 or                           State                               explanation/
             45 CSR]                   Title/subject      effective     EPA approval date    citation at 40 CFR
                                                             date                                  52.2565
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                                 [45 CSR] Series 8 Ambient Air Quality Standards
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Section 45-8-1...................  General.............       6/1/17  3/23/18, [Insert      Filing and effective
                                                                       Federal Register      dates are revised.
                                                                       Citation].
Section 45-8-2...................  Definitions.........       6/1/17  3/23/18, [Insert      Previous Approval 9/
                                                                       Federal Register      22/2014.
                                                                       Citation].
Section 45-8-3...................  Adoption of                6/1/17  3/23/18, [Insert      Effective date is
                                    Standards.                         Federal Register      revised.
                                                                       Citation].
Section 45-8-4...................  Inconsistency              6/1/17  3/23/18, [Insert      Replaced ``West
                                    Between Rules.                     Federal Register      Virginia Department
                                                                       Citation].            of Environmental
                                                                                             Protection'' with
                                                                                             ``Division of Air
                                                                                             Quality.''
 
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[FR Doc. 2018-05877 Filed 3-22-18; 8:45 am]
 BILLING CODE 6560-50-P