[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Rules and Regulations]
[Pages 48249-48252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20617]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0217; EPA-R03-OAR-2014-0299; EPA-R03-OAR-2016-0373; 
FRL-9984-30-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Regional Haze Plan and Visibility Requirements for the 
2010 Sulfur Dioxide and the 2012 Fine Particulate Matter Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the State of West 
Virginia (West Virginia). This SIP revision changes West Virginia's 
reliance on the Clean Air Interstate Rule (CAIR) to reliance on the 
Cross-State Air Pollution Rule (CSAPR) with the purpose of addressing 
certain regional haze requirements and the visibility protection 
requirements for the 2010 sulfur dioxide (SO2) national 
ambient air quality standards (NAAQS). EPA is approving this SIP 
revision and consequently converting the Agency's prior limited 
approval/limited disapproval of West Virginia's regional haze SIP 
revision to a full approval and withdrawing the federal implementation 
plan (FIP) provisions for addressing our prior limited disapproval. 
Based on our full approval of West Virginia's regional haze program, 
EPA is also approving the portions of West Virginia's infrastructure 
SIP revisions for the 2010 SO2 and 2012 fine particulate 
matter (PM2.5) NAAQS addressing visibility protection 
requirements. This action is being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on October 24, 2018.

ADDRESSES: EPA has established a docket for this rulemaking action 
under Docket ID Number EPA-R03-OAR-2018-0217. The following previously 
established dockets are also relevant to today's action: Docket ID 
Number EPA-R03-OAR-2014-0299; and EPA-R03-OAR-2016-0373. 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: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by email at [email protected].

SUPPLEMENTARY INFORMATION: On September 16, 2015, the State of West 
Virginia via the West Virginia Department of Environmental Protection 
(WVDEP) submitted a revision to its SIP to update its regional haze 
plan and to meet the visibility protection requirement in section 
110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS. EPA 
is also addressing as part of this rulemaking action two SIP revisions 
submitted by West Virginia on October 16, 2014 and May 12, 2017 
addressing the visibility protection requirement in section 
110(a)(2)(D)(i)(II) for the 2010 SO2 and 2012 
PM2.5 NAAQS, respectively.

I. Background

    On March 23, 2012, EPA finalized a limited approval and a limited 
disapproval of a West Virginia SIP revision submitted on June 18, 2008 
addressing regional haze program requirements.\1\ The limited 
disapproval of this SIP revision was based upon West Virginia's 
reliance on CAIR as an alternative to best available retrofit 
technology (BART) and as a measure for reasonable progress. On June 7, 
2012, EPA promulgated a FIP for West Virginia that replaced reliance on 
CAIR with reliance on CSAPR to meet BART and reasonable progress 
requirements, to address the deficiency in the State's CAIR-dependent 
regional haze SIP.\2\ Consequently, this particular aspect of West 
Virginia's regional haze requirements was satisfied by EPA's issuance 
of a FIP (hereafter referred to as partial Regional Haze FIP).
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    \1\ 77 FR 16937 (March 23, 2012).
    \2\ 77 FR 33643 (June 7, 2012).
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    On September 16, 2015, the State of West Virginia submitted a SIP 
revision to change its present reliance from CAIR to CSAPR for the 
purpose of meeting BART for regional haze and addressing reasonable 
progress requirements, thereby eliminating West Virginia's need for the 
partial Regional Haze FIP. The SIP revision was also submitted to meet 
the outstanding visibility protection requirement under section 
110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS, also 
known as prong 4. The prong 4 requirement under the CAA requires that a 
state's SIP include adequate provisions prohibiting any source or other 
type of emissions activity in one state from interfering with measures 
to protect visibility

[[Page 48250]]

required to be included in another state's overall SIP. One way in 
which prong 4 can be satisfied is if a state has a fully approved 
regional haze program within its SIP. The September 16, 2015 SIP 
revision amends the portion of West Virginia's October 16, 2014 
infrastructure SIP submission for the 2010 SO2 NAAQS 
addressing prong. On May 12, 2017, West Virginia submitted another SIP 
revision addressing infrastructure requirements under section 110(a)(2) 
for the 2012 PM2.5 NAAQS, including prong 4 for visibility 
protection. The May 12, 2017 relies on the September 16, 2015 SIP 
revision to meet prong 4.
    On June 14, 2018 (83 FR 27734), EPA published a notice of proposed 
rulemaking (NPR) addressing West Virginia's three SIP revisions 
submitted to address certain regional haze requirements and the 
visibility provisions of section 110(a)(2)(D)(i) of the CAA for the 
2010 SO2 and the 2012 PM2.5 NAAQS. In the NPR, 
EPA proposed to take the following actions: (1) To approve West 
Virginia's September 16, 2015 SIP revision that changed West Virginia's 
reliance on CAIR to reliance on CSAPR for certain elements of West 
Virginia's regional haze program; (2) to convert EPA's limited 
approval/limited disapproval \3\ of West Virginia's regional haze 
program to a full approval; (3) to remove the partial Regional Haze FIP 
for West Virginia that addressed the deficiencies associated with the 
Agency's prior limited disapproval; and (4) to approve portions of West 
Virginia's October 16, 2014 and May 12, 2017 infrastructure SIP 
revisions for the 2010 SO2 and the 2012 PM2.5 
NAAQS, respectively, addressing the visibility protection provisions of 
section 110(a)(2)(D)(i) of the CAA.
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    \3\ 77 FR 33642 (June 7, 2012).
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II. Summary of SIP Revision and EPA Analysis

    The September 16, 2015 SIP revision from West Virginia corrects the 
deficiencies identified by EPA in the June 7, 2012 limited disapproval 
of West Virginia's regional haze program, by replacing reliance on CAIR 
with reliance on CSAPR in its regional haze SIP. Specifically, the 
September 16, 2015 SIP submittal changes the West Virginia regional 
haze program to specify that the State is relying on CSAPR in its 
regional haze SIP to meet the best available retrofit technology (BART) 
for certain electric generating units (EGUs) and reasonable progress 
requirements to support visibility improvement progress goals for West 
Virginia's Class I areas, Dolly Sods and Otter Creek Wilderness Areas.
    As did EPA's partial Regional Haze FIP for West Virginia, the 
State's September 16, 2015 regional haze SIP revision relies on CSAPR 
to address the deficiencies identified in EPA's June 2012 limited 
disapproval of West Virginia's regional haze SIP. As discussed in the 
NPR in greater detail, EPA finds that this SIP revision satisfies West 
Virginia's BART requirements for its EGUs and reasonable progress 
requirements and therefore allows for a fully approvable regional haze 
program. With today's final approval, the State has a SIP in place to 
address all of its regional haze requirements. EPA finds that West 
Virginia's reliance in its SIP upon CSAPR for certain BART and 
reasonable progress requirements is in accordance with the CAA and 
regional haze rule requirements (including 40 CFR 51.308(e)(2)), as EPA 
has recently affirmed that CSAPR remains an appropriate alternative to 
source-specific BART controls for EGUs participating in CSAPR.\4\ 
Because the deficiencies in West Virginia's regional haze SIP 
associated with the State's reliance on CAIR that were identified in 
EPA's prior limited disapproval are addressed through West Virginia's 
revised SIP, the Agency is now fully approving the State's regional 
haze SIP.
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    \4\ See 82 FR 45481 (September 29, 2017) (affirming the validity 
to EPA's determination that participation in CSAPR satisfies the 
criteria for an alternative to BART following changes to the 
program.)
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    Additionally, EPA finds that the prong 4 portions of West 
Virginia's infrastructure SIP revision submittals for the 2010 
SO2 NAAQS and the 2012 PM2.5 NAAQS, respectively, 
are fully approvable as West Virginia now has a fully approved regional 
haze SIP.\5\ The specific details of West Virginia's September 16, 2015 
SIP revision and the rationale for EPA's approval of the three SIP 
revisions are discussed in the NPR (83 FR 27734, June 14, 2018) and 
will not be restated here.
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    \5\ West Virginia's 2010 SO2 NAAQS and 2012 
PM2.5 NAAQS infrastructure SIP submissions relied on the 
State having a fully approved regional haze program to satisfy its 
prong 4 requirements. However, at the time of both infrastructure 
SIP submittals, West Virginia did not have a fully approved regional 
haze program as the Agency had issued a limited disapproval of the 
State's regional haze plan on June 7, 2012, due to its reliance on 
CAIR.
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    EPA received a total of three comments on the June 2018 NPR. Two of 
those did not concern any of the specific issues raised in the NPR, nor 
did they address EPA's rationale for the proposed approval of West 
Virginia's SIP revision submittals; therefore, EPA is not responding to 
those comments. EPA did receive one relevant comment. That comment, and 
EPA's response are discussed below. All comments received are included 
in the docket for this rulemaking action.

III. Public Comments and EPA's Response

    EPA received an anonymous comment considered to be adverse and 
relevant to this rulemaking action. The commenter states that EPA did 
not act on West Virginia's SIP revisions by the required statutory 
deadline of 12 months after each of the SIP revisions became complete. 
Commenter also asserts that by EPA not approving West Virginia's SIP 
revisions timely, and consequently the underlying requirements not 
being federally enforceable for nearly 4 years, human health and the 
environment have been negatively impacted. Commenter questions why EPA 
has taken so long to act on these SIP revisions and requests an 
explanation of how visibility was protected in the last 3 to 4 years 
when the SIP revisions were deficient and unapprovable.
    Response: EPA acknowledges that it missed the statutory deadlines 
to take action on the three West Virginia SIP revisions addressed in 
this rulemaking action. However, at this time, EPA is taking final 
action on these SIP revisions, and by doing so it would meet all such 
outstanding obligations under the CAA. EPA disagrees with commenter's 
assertion that delayed action on the three West Virginia SIP revisions 
concerning visibility protection has impacted human health and the 
environment. As explained in the NPR, West Virginia's regional haze 
requirements addressing visibility protection have been satisfied since 
2012 by our limited approval of portions of West Virginia's June 18, 
2008 comprehensive regional haze SIP revision and by EPA's promulgation 
of the partial Regional Haze FIP addressing BART for EGUs. EPA's 
limited approval of West Virginia's regional haze SIP and the partial 
Regional Haze FIP are federally enforceable and have been since 2012, 
and they have addressed fully West Virginia's regional haze obligations 
under CAA section 169A and 40 CFR 51.308. As discussed in the NPR, EPA 
finalized a limited approval and limited disapproval of West Virginia's 
June 18, 2008 SIP revision on March 23, 2012, disapproving only the 
portions of the SIP revision where West Virginia relied on CAIR as an 
alternative to BART for EGUs and as a measure for reasonable progress, 
since CAIR had been remanded to EPA by 2012. On June

[[Page 48251]]

7, 2012, EPA had promulgated partial Regional Haze FIPs for states that 
had relied on CAIR to replace reliance on CAIR with reliance on CSAPR 
for haze requirements, including West Virginia.
    Thus, EPA's action on the portions of West Virginia's 
infrastructure SIP revisions for the 2010 SO2 and the 2012 
PM2.5 NAAQS addressing visibility protection (prong 4) did 
not have any impact on implementation of required regional haze 
measures, given that EPA had already limitedly approved West Virginia's 
regional haze SIP and promulgated the partial Regional Haze FIP for 
BART and regional progress purposes for EGUs.
    Because West Virginia was already subject to a FIP addressing West 
Virginia's reliance on CAIR for certain regional haze elements, EPA's 
disapproval of the State's infrastructure elements for visibility 
protection (prong 4) under either the 2010 SO2 or the 2012 
PM2.5 NAAQS: (1) would not have imposed any mandatory 
sanctions under section 179 of the CAA, as neither infrastructure nor 
regional haze SIPs are subject to CAA 179 sanctions; and (2) would not 
have subjected EPA to any additional FIP duties, because a FIP 
addressing the underlying deficiency (i.e. the partial Regional Haze 
FIP) was already in place. Thus, earlier action by EPA on West 
Virginia's prong 4 SIP revisions for the 2010 SO2 or the 
2012 PM2.5 NAAQS would not have further protected public 
health or the environment.

IV. Final Action

    EPA is taking the following final actions: (1) Approving West 
Virginia's September 16, 2015 SIP revision that changes the State's 
reliance on CAIR to reliance on CSAPR for certain elements of West 
Virginia's regional haze program; (2) converting EPA's limited 
approval/limited disapproval of West Virginia's regional haze program 
to a full approval; (3) withdrawing the partial Regional Haze FIP 
provisions that address the limited disapproval of West Virginia's 
regional haze program; and (4) approving the portions of West 
Virginia's October 16, 2014 infrastructure SIP revision for the 2010 
SO2 NAAQS and the May 12, 2017 infrastructure SIP revision 
for the 2012 PM2.5 NAAQS addressing the visibility 
provisions of CAA section 110(a)(2)(D)(i) for each NAAQS.

V. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities because small 
entities are not subject to the requirements of this rule. 83 FR 27734 
(June 14, 2018).

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments. There are no Indian reservation lands in West 
Virginia. Thus, Executive Order 13175 does not apply to this rule.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

L. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(B), this action is subject to the 
requirements of CAA section 307(d), as it revises a FIP under CAA 
section 110(c).

M. Congressional Review Act (CRA)

    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

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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).

N. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action, addressing West Virginia's regional haze requirements 
and visibility protection for the 2010 SO2 and 2012 
PM2.5 NAAQS and the withdrawal of the West Virginia partial 
Regional Haze FIP, must be filed in the United States Court of Appeals 
for the appropriate circuit by November 23, 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 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, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Regional haze, Reporting and recordkeeping requirements, Sulfur 
oxides, Visibility.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: September 14, 2018.
Andrew R. Wheeler,
Acting Administrator.

    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. Section 52.2520 is amended by revising the entries for ``Regional 
Haze Plan'', ``Section 110(a)(2) Infrastructure Requirements for the 
2010 1-Hour Sulfur Dioxide NAAQS'', and ``Section 110(a)(2) 
Infrastructure Requirements for the 2012 p.m.2.5 NAAQS'' in the table 
in paragraph (e) to read as follows:


Sec.  52.2520   Identification of plan.

* * * * *
    (e) * * *

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                                                             State
   Name of non-regulatory SIP     Applicable  geographic   submittal   EPA approval date  Additional explanation
            revision                       area               date
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                                                  * * * * * * *
Regional Haze Plan.............  Statewide..............      9/16/15  9/24/18, [Insert   Converted Limited
                                                                        Federal Register   Approval/Limited
                                                                        citation].         Disapproval to Full
                                                                                           Approval
                                                                                          See Sec.  Sec.
                                                                                           52.2533(g) and 3/23/
                                                                                           12, 77 FR 16937.
 
                                                  * * * * * * *
Section 110(a)(2)                Statewide..............      6/25/13  10/16/14, 79 FR    This action addresses
 Infrastructure Requirements                                            62035; 9/24/18,    the following CAA
 for the 2010 1-Hour Sulfur                                             [Insert Federal    elements or portions
 Dioxide NAAQS.                                                         Register           thereof:
                                                                        citation].         110(a)(2)(A), (B),
                                                                                           (C) (enforcement and
                                                                                           minor source review),
                                                                                           (D)(i)(II) (regarding
                                                                                           visibility
                                                                                           protection), (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, 80 FR      Addresses CAA element
                                                                        12348.             110(a)(2)(E)(ii).
                                                             6/1/2015  8/11/2016, 81 FR   Approval of PSD-
                                                                        53009.             related element
                                                                                           110(a)(2)(C),
                                                                                           (D)(i)(II), and (J).
                                                                                           See
                                                                                          Sec.   52.2520.
                                                              9/16/15  9/24/18, [Insert   Addresses visibility
                                                                        Federal Register   protection element of
                                                                        citation].         CAA section
                                                                                           110(a)(2)(D)(i)(II).
 
                                                  * * * * * * *
Section 110(a)(2)                Statewide..............     11/17/15  5/12/17, 82 FR     This action addresses
 Infrastructure Requirements                                            22078; 9/24/18,    the following CAA
 for the 2012 PM2.5 NAAQS.                                              [Insert Federal    elements:
                                                                        Register          110(a)(2)(A), (B),
                                                                        citation].         (C), (D)(i)(II)
                                                                                           (regarding prevention
                                                                                           of significant
                                                                                           deterioration and
                                                                                           visibility
                                                                                           protection), (D)(ii),
                                                                                           (E), (F), (G), (H),
                                                                                           (J), (K), (L), and
                                                                                           (M), or portions
                                                                                           thereof.
                                                              9/16/15  9/24/18, [Insert   Addresses CAA element
                                                                        Federal Register   110(a)(2)(D)(I)(II)
                                                                        citation].         for visibility.
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Section 52.2533 is amended by removing and reserving paragraphs (d), 
(e), and (f) and by adding paragraph (g).
    The addition reads as follows:


Sec.  52.2533  Visibility protection.

* * * * *
    (g) EPA converts its limited approval/limited disapproval of West 
Virginia's regional haze program to a full approval. This SIP revision 
changes West Virginia's reliance from the Clean Air Interstate Rule to 
the Cross-State Air Pollution Rule to meet the regional haze SIP best 
available retrofit technology requirements for certain sources and to 
meet reasonable progress requirements.

[FR Doc. 2018-20617 Filed 9-21-18; 8:45 am]
 BILLING CODE 6560-50-P