[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.
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(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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