[Federal Register Volume 83, Number 194 (Friday, October 5, 2018)]
[Rules and Regulations]
[Pages 50271-50274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21664]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0550; FRL-9985-00-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; 2018 Amendments to West Virginia's Ambient Air Quality 
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. This revision updates the effective date by which the state 
incorporates by reference the national ambient air quality standards 
(NAAQS) as well as their monitoring reference and equivalent methods. 
EPA is approving this revision to the West Virginia SIP in accordance 
with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on November 5, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2018-0550. 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:

[[Page 50272]]

I. Background

    On July 31, 2018 (83 FR36823), EPA published a notice of proposed 
rulemaking (NPR) for the State of West Virginia. In the NPR, EPA 
proposed approval of a formal SIP revision submitted on June 8, 2018. 
The formal SIP revision pertains to amendments to Legislative Rule, 
45CSR8--Ambient Air Quality Standards and consists of a revised 
effective date of the incorporation by reference of the NAAQS and the 
associated monitoring reference and equivalent methods.

II. Summary of SIP Revision

    This SIP revision was submitted by WVDEP in order to update the 
State's incorporation by reference of the primary and secondary NAAQS 
and the ambient air monitoring reference and equivalent methods, found 
in 40 CFR parts 50 and 53, respectively. Currently, 45CSR8 incorporates 
by reference 40 CFR parts 50 and 53 as effective on June 1, 2016. Since 
that date, EPA retained the standard for lead and made a technical 
correction to the particulate standard. See 81 FR 71906 and 82 FR 
14325, respectively. EPA also designated one new ambient air monitoring 
reference method for measuring concentrations of sulfur dioxide, four 
new ambient air monitoring equivalent methods for measuring 
concentrations of fine and coarse particulate matter (PM2.5 
and PM10, respectively), and two new equivalent methods for 
measuring concentrations of nitrogen dioxide (NO2) in 
ambient air. Additional information can be found in the NPR and will 
not be restated here.

III. Response to Comments

    EPA received two anonymous comments on the July 31, 2018 NPR.
    Comment: The first commenter asked why this SIP revision was 
``required'' by West Virginia and how it is possible for a state to 
require a SIP revision. In addition, the commenter alleged that just 
because a state changes a date in the state's regulation does not mean 
it must change in the SIP. The commenter also asked EPA to clarify the 
relevance of the phrase, ``EPA retained the standard for lead and made 
a technical correction to the particulate standard,'' and to explain 
what incorporation by reference means in the context of this 
rulemaking.
    Response: When a state incorporates a rule or standard by 
reference, the state is formally adopting the standard or rule into its 
own state rules without having to rewrite the entirety of the 
referenced rule or standard. States typically incorporate rules by 
reference to maintain consistency between state and federal 
requirements and for ease of adoption by the state. While nothing in 
the CAA or EPA's regulations necessitates West Virginia to incorporate 
by reference the NAAQS or to update the date of incorporation by 
reference of the NAAQS in the State's SIP, West Virginia has chosen of 
its own accord to incorporate by reference the NAAQS into its SIP and 
recognizes that it is prudent to ensure the SIP and the state's 
regulations match for consistent implementation and enforcement 
purposes. In the NPR, EPA inadvertently referred to the State's 
voluntary decision to submit the SIP revision incorporating the NAAQS 
as a ``requirement'' when the State voluntarily decided to incorporate 
the NAAQS and thus chose to submit its latest revised regulation for 
SIP approval incorporating EPA's latest revised NAAQS. Thus, EPA agrees 
with the commenter that the State is not required to submit this latest 
SIP revision; West Virginia is exercising its voluntary decision to 
include state regulations incorporating the NAAQS. Because West 
Virginia chooses to incorporate by reference the NAAQS, and because 
West Virginia incorporates by reference the NAAQS in its state 
regulations by referring to federal regulations as published on a 
certain date, West Virginia periodically updates its state regulations 
to refer to the most up to date NAAQS in current federal regulations. 
West Virginia identified several changes in 40 CFR parts 50 and 53 
which the State determined necessitated updating the date of 
incorporation by reference in its own state regulations; those changes 
include the following: In 40 CFR part 50, a technical correction to the 
particulate standard, and in 40 CFR part 53, one new ambient air 
monitoring reference method for measuring concentrations of sulfur 
dioxide (SO2), four new ambient air monitoring equivalent 
methods for measuring concentrations of PM2.5 and 
PM10, respectively, and two new equivalent methods for 
measuring concentrations of NO2 in ambient air.
    The SIP revision submittal in this rulemaking was submitted by West 
Virginia because West Virginia's rule, 45CSR8--Ambient Air Quality 
Standards, incorporated the NAAQS and the ambient air monitoring 
reference and equivalent methods found in 40 CFR parts 50 and 53, 
respectively, as of June 1, 2016. Because West Virginia wanted to 
ensure the most recent ambient air quality standards and air monitoring 
methods are enforceable at the state level, West Virginia routinely 
revises 45CSR8 to update the date by which the rule incorporates the 
federal standards by reference. In this case, West Virginia revised the 
date of incorporation by reference from June 1, 2016 to June 1, 2018. 
By revising this date, West Virginia's ambient air quality standards 
and air monitoring methods would match the federal NAAQS and air 
monitoring methods in 40 CFR parts 50 and 53.
    In October 2016 and March 2017, EPA made revisions to 40 CFR parts 
50 and 53. See 81 FR 71906 and 82 FR 14325, respectively. In these two 
actions, EPA retained the NAAQS for the lead standard and made a 
technical correction to the particulate matter standard. After EPA made 
these changes, West Virginia's 45CSR8 no longer referenced the most 
current NAAQS and air monitoring methods; therefore, West Virginia 
decided to revise its state rule to reference the most recent NAAQS and 
air monitoring methods. In this routine update, West Virginia 
recognized that its newly revised 45CSR8 would no longer match the 
version of the same rule that was contained in its SIP, thus, a SIP 
revision was necessary to bring the SIP into conformance with both the 
state rule and the federal standards in 40 CFR parts 50 and 53. In 
conclusion, West Virginia's decision to incorporate the most current 
NAAQS was voluntary and EPA in the proposed rule inadvertently referred 
to West Virginia's decision to make this SIP submission as 
``required.'' West Virginia decided voluntarily to incorporate the 
federal NAAQS and reference methods into its SIP and to submit this 
revision to incorporate the most recent version of 40 CFR parts 50 and 
53 in its SIP. Therefore, EPA agrees with the commenter that EPA 
inadvertently referred to the submittal as ``required;'' however, West 
Virginia's SIP meets requirements in CAA section 110 as discussed in 
the NPR and commenter has provided no information to challenge the 
basis for EPA's approval under CAA section 110.
    Regarding the commenter's concern about EPA's statement that ``EPA 
retained the standard for lead and made a technical correction to the 
particulate standard,'' EPA explained the basis for this in the NPR. No 
changes were made to the NAAQS for lead and thus no evaluation was 
needed for West Virginia's altered 45CSR8. EPA explained in the NPR 
that the Agency made a technical correction to our particulate matter 
NAAQS and the commenter offered no substantive questions or commentary 
regarding that change; thus, EPA provides no further substantive reply. 
Regarding an

[[Page 50273]]

explanation of ``what incorporation by reference means,'' EPA offers 
that incorporation by reference means that by this final action 
approving the SIP revision, EPA is including in the new version of 
45CSR8 (which in turn incorporated the text of 40 CFR parts 50 and 53) 
in the federally approved and federally enforceable West Virginia SIP.
    Comment: The second commenter asked why the State of West Virginia 
has to update their ambient air quality standards if the federal 
standards cover all states, including West Virginia. The commenter 
further opined that this rulemaking action is redundant and 
unnecessary, and thus, EPA should not approve West Virginia's 
submission.
    Response: EPA disagrees with the commenter that EPA should 
disapprove West Virginia's submission based on the SIP revision being 
``redundant and unnecessary.'' Section 110 of the CAA permits states to 
submit regulations the states deem relevant for SIP inclusion and 
requires EPA to approve those submissions so long as they conform with 
the Act. Apart from mandatory CAA requirements, states are free to 
submit SIP revisions which they believe are necessary for inclusion 
into the state's SIP. Regarding the comment as to ``why the State must 
update their ambient air quality standards,'' EPA's reply is that West 
Virginia is not ``required'' to submit this revision, as explained 
above. West Virginia on its own accord sought to include 45CSR8 in its 
SIP. EPA's decision to approve this SIP revision submittal is based on 
our application of section 110 of the CAA to the submittal. As the 
submission met the requirements of section 110 for SIP approval, EPA 
must approve this voluntary submission for the West Virginia SIP.

IV. Final Action

    EPA is approving the West Virginia SIP revision updating the date 
of incorporation by reference as a revision to the West Virginia SIP. 
The SIP revision was submitted on June 8, 2018.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference 45CSR8, as 
effective on June 1, 2018. 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 in the next update to 
the SIP compilation.\1\
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    \1\ 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 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 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 December 4, 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, updating the effective date of West Virginia's 
45CSR8, 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, Sulfur oxides.


[[Page 50274]]


    Dated: September 24, 2018.
Cosmo Servidio,
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 (c) is amended by revising 
the entries ``Section 45-8-1'', ``Section 45-8-2'', ``Section 45-8-3'', 
and ``Section 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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                                                           State                                 Additional
 State citation [Chapter 16-20       Title/subject       effective     EPA approval date    explanation/citation
           or 45 CSR]                                       date                              at 40 CFR 52.2565
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                                 [45 CSR] Series 8 Ambient Air Quality Standards
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Section 45-8-1.................  General..............       6/1/18  10/5/18, [insert       Docket #2018-0550.
                                                                      Federal Register       Filing and
                                                                      citation].             effective dates are
                                                                                             revised.
Section 45-8-2.................  Definitions..........       6/1/18  10/5/18, [insert       Docket #2018-0550.
                                                                      Federal Register       Previous Approval 3/
                                                                      citation].             23/18.
Section 45-8-3.................  Adoption of Standards       6/1/18  10/5/18, [insert       Docket #2018-
                                                                      Federal Register       0550.Effective date
                                                                      citation].             is revised.
Section 45-8-4.................  Inconsistency Between       6/1/18  10/5/18, [insert       Docket #2018-0550.
                                  Rules.                              Federal Register       Previous Approval 3/
                                                                      citation].             23/18.
 
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[FR Doc. 2018-21664 Filed 10-4-18; 8:45 am]
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