[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Proposed Rules]
[Pages 69349-69351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27274]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0103; FRL-10003-48-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Infrastructure Requirements for the 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submittal from the 
State of West Virginia pursuant to the Clean Air Act (CAA). Whenever 
new or revised national ambient air quality standards (NAAQS or 
standards) are promulgated, the CAA requires states to submit a plan 
for the implementation, maintenance, and enforcement of such NAAQS. The 
plan is required to address basic program elements, including, but not 
limited to, regulatory structure, monitoring, modeling, legal 
authority,

[[Page 69350]]

and adequate resources necessary to assure attainment and maintenance 
of the standards. These elements are referred to as infrastructure 
requirements. West Virginia made a submittal addressing most of the 
infrastructure requirements for the 2015 ozone NAAQS and later 
supplemented the submittals to address the interstate transport 
elements; EPA is not proposing any action on the interstate transport 
elements at this time.

DATES: Written comments must be received on or before January 17, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2019-0103 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2021. Mr. Schulingkamp can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On October 26, 2015, EPA revised both the 
primary and secondary NAAQS for ozone based on 8-hour average 
concentrations to 0.070 parts per million (ppm). See 80 FR 65292. 
Pursuant to CAA section 110(a)(1), states are required to submit SIPs 
meeting the applicable requirements of section 110(a)(2) within three 
years after promulgation of a new or revised NAAQS or within such 
shorter period as EPA may prescribe. Section 110(a)(2) requires states 
to address basic SIP elements such as requirements for monitoring, 
basic program requirements and legal authority that are designed to 
assure attainment and maintenance of the NAAQS. Section 110(a) imposes 
the obligation upon states to make a SIP submission to EPA for a new or 
revised NAAQS, but the contents of that submission may vary depending 
upon the facts and circumstances. In particular, the data and 
analytical tools available at the time the state develops and submits 
the SIP for a new or revised NAAQS affects the content of the 
submission. The content of such SIP submissions may also vary depending 
upon what provisions the state's existing SIP already contains.
    In the case of the 2015 ozone NAAQS, states typically have met the 
basic program elements required in section 110(a)(2) through earlier 
SIP submissions in connection with the 1997 and 2008 ozone NAAQS. 
Section 110(a)(1) of the CAA provides the procedural and timing 
requirements for SIPs, while section 110(a)(2) lists specific elements 
that states must meet for infrastructure SIP requirements related to a 
newly established or revised NAAQS. As mentioned earlier, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS.

I. Background

    On September 14, 2018, WVDEP submitted a revision to its SIP to 
satisfy the requirements of CAA section 110(a)(2) for the 2015 ozone 
NAAQS (hereafter the ``2015 Infrastructure SIP''). This submittal 
addressed the following elements of CAA section 110(a)(2): (A), (B), 
(C), (D)(i)(II), (E), (F), (G), (H), (J), (K), (L), and (M). This 
submittal did not address CAA section 110(a)(2)(D)(i)(I) (interstate 
transport), however, the state committed to submitting a supplemental 
SIP revision to fully address this requirement. On February 4, 2019, 
the WVDEP supplemented its 2015 Infrastructure SIP to address the 
interstate transport elements of CAA section 110(a)(2)(D)(i)(I) 
(hereafter the ``2015 Transport SIP''). At this time, EPA is not taking 
action on West Virginia's 2015 Transport SIP and will address that 
submittal in a later separate action.

II. How EPA Evaluates Infrastructure SIPs

    Pursuant to CAA section 110(a), states must provide SIP revisions 
addressing relevant infrastructure SIP elements from section 
110(a)(2)(A) through (M) or provide certification that the existing SIP 
contains provisions adequately addressing these elements for the 2015 
ozone NAAQS.
    EPA reviews each infrastructure SIP submission for compliance with 
the applicable statutory provisions of CAA section 110(a)(2), as 
appropriate. Historically, EPA has elected to use non-binding guidance 
documents to make recommendations for states' development and EPA 
review of infrastructure SIPs, in some cases conveying needed 
interpretations on newly arising issues, and in others conveying 
interpretations that have already been developed and applied to 
individual SIP submissions for particular elements. EPA guidance 
applicable to these infrastructure SIP submissions is embodied in 
several documents.\1\ Unless otherwise noted below, EPA is following 
that existing approach in acting on this submission. In addition, in 
the context of acting on such infrastructure submissions, EPA evaluates 
the submitting state's SIP for facial compliance with statutory and 
regulatory requirements, not for the state's implementation of its 
SIP.\2\ EPA has other authority to address any issues concerning a 
state's implementation of the rules, regulations, consent orders, etc. 
that comprise its SIP.
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    \1\ EPA explains its approach in its September 13, 2013 
Infrastructure SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on West Virginia's infrastructure SIP to address the 2008 
ozone NAAQS (79 FR 19001 (April 7, 2014)).
    \2\ See Montana Environ. Info. Center v. EPA, 902 F.3d 971 (9th 
Cir. 2018).
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III. EPA's Analysis

    West Virginia's 2015 Infrastructure SIP submittal addressed the 
following infrastructure elements, or portions thereof, for the 2015 
ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M). The 2015 Infrastructure SIP 
submittal did not address element (I) which pertains to the 
nonattainment requirements of part D, title I of the CAA, since this 
element is not required to be submitted by the 3-year submission 
deadline of section 110(a)(1) and will be addressed in a separate 
process.
    EPA has analyzed the 2015 Infrastructure SIP submission and is

[[Page 69351]]

proposing to make a determination that the submittal meets the 
requirements of the identified elements. A detailed summary of EPA's 
review and rationale for approving West Virginia's submittal may be 
found in the technical support document (TSD) for this proposed 
rulemaking action which is available online at www.regulations.gov, 
docket number EPA-R03-OAR-2019-0103.

IV. Proposed Action

    EPA is proposing to approve West Virginia's September 14, 2018 
submittal which provides the basic program elements, or portions 
thereof, specified in section 110(a)(2)(A), (B), (C), (D)(i)(II), 
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) necessary to 
implement, maintain, and enforce the 2015 ozone NAAQS. This proposed 
rulemaking action does not include action on section 110(a)(2)(I) which 
pertains to the nonattainment planning requirements of part D, title I 
of the CAA, because this element is not required to be submitted by the 
3-year submission deadline of section 110(a)(1) of the CAA and will be 
addressed in a separate process. This proposed rulemaking action also 
does not address section 110(a)(2)(D)(i)(I) which pertains to the 
interstate transport of emissions; EPA will propose action on West 
Virginia's 2015 Transport SIP in a later separate action. EPA is 
soliciting public comments on the issues discussed in this document 
which will be considered before taking final rulemaking action.

V. Statutory and Executive Order Reviews

    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 proposed 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 proposed rule, pertaining to West Virginia's 
section 110(a)(2) infrastructure requirements for the 2015 ozone NAAQS, 
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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

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

    Dated: December 12, 2019.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2019-27274 Filed 12-17-19; 8:45 am]
 BILLING CODE 6560-50-P