[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Rules and Regulations]
[Pages 10613-10615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03153]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0553; FRL-10005-49-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; 2019 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 of the national 
ambient air quality standards (NAAQS) and the associated monitoring 
reference and equivalent methods for those NAAQS which West Virginia 
incorporates into its State regulations and the SIP. 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 March 26, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0553. All documents in the docket are listed on 
the https://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 
https://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, 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:

I. Background

    On December 23, 2019 (84 FR 64243), EPA published a notice of 
proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, 
EPA proposed approval of a formal SIP revision submitted on May 6, 
2019. The formal SIP revision updates the version of the NAAQS and the 
associated monitoring reference and equivalent methods for those NAAQS 
that West Virginia incorporates by reference into the State's 
legislative rules and the SIP.

II. Summary of SIP Revision and EPA Analysis

    This SIP revision was submitted by the West Virginia Department of 
Environmental Protection (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, West Virginia's EPA-
approved SIP includes the older version of West Virginia regulation 
45CSR8 which incorporates by reference 40 CFR parts 50 and 53 as these 
Federal regulations existed on June 1, 2017. West Virginia has since 
adopted at the State level a revision to 45CSR8 which now incorporates 
by reference the Federal regulations at 40 CFR parts 50 and 53 as these 
regulations existed on June 1, 2018. Following EPA approval of this SIP 
revision, the EPA-approved West Virginia SIP will reflect that 40 CFR 
parts 50 and 53, as they existed on June 1, 2018, are part of the EPA-
approved West Virginia SIP. EPA notes that since June 1, 2017, EPA 
reviewed the primary standards for oxides of nitrogen (NOX), 
as required by CAA section 109(d), but chose to retain the 1-hour and 
annual nitrogen dioxide (NO2) standards without revision. 
See 83 FR 17226. Thus, EPA has not made any changes to the ambient air 
quality standards, ambient air monitoring reference methods, or any 
ambient air monitoring equivalent methods in 40 CFR parts 50 and 53 
since West Virginia last incorporated by reference into 45CSR8 the 
NAAQS and monitoring methods in 40 CFR parts 50 and 53 as they existed 
on June 1, 2017. Other specific requirements and the rationale for 
EPA's proposed action are explained in the NPRM and will not be 
restated here.

III. Response to Comments

    EPA received five sets of anonymous comments in response to the 
NPRM. Three of the commenters supported West Virginia's updating of its 
incorporation by reference of the NAAQS. EPA thanks these commenters 
but will otherwise only respond to the question contained in one of 
these comments. Two of the comments were difficult to interpret but did 
not appear to support the rulemaking. EPA's best effort to interpret 
and respond to these two comments is represented in this section of 
this rulemaking action.
    Comment 1: The first commenter was generally supportive of the 
action but also asked when the revision of the effective date in this 
rulemaking would take place.
    Response 1: The provisions of West Virginia's amended regulation, 
45CSR8, became effective at the State level on June 1, 2019. EPA's 
approval of this revision into the SIP will become effective 30 days 
after this final rule is published in the Federal Register. For the 
specific effective date of EPA's approval, see the DATES section of 
this document.
    Comment 2: One commenter asked why EPA was requiring rules about 
the NAAQS and asked why EPA requires the NAAQS. The commenter suggested 
that EPA stop requiring states like West Virginia to adopt rules like 
this and allow West Virginia to remove these rules. The commenter also 
generally expressed opinions irrelevant to this rulemaking.
    Response 2: The Clean Air Act is a Federal law (statute) adopted by 
Congress and approved by the President. Section 109 of the CAA requires 
that the Administrator adopt NAAQS for certain air pollutants which, in 
the judgment of the Administrator, are necessary to protect the public

[[Page 10614]]

health and welfare, with an adequate margin of safety. CAA section 
109(a), (b); 42 U.S.C. 7409(a), (b). While the Administrator has some 
discretion in setting the safe level for these pollutants in the 
ambient air, the CAA requires that the Administrator set and review 
these levels every five years. CAA section 109; 42 U.S.C. 7409. Section 
107 of the CAA gives states the primary responsibility for assuring air 
quality within each state by submitting an implementation plan for the 
state (a ``SIP'') that specifies how the NAAQS will be achieved and 
maintained in the state. 42 U.S.C. 7407. Thus, Federal law requires 
NAAQS in order to protect public health and the environment, and the 
Administrator must implement this law. Also, although the CAA allows 
states some discretion in how to attain and maintain compliance with 
the ambient air quality standards, states are required by section 
110(a) of the CAA to submit implementation plans for achieving and 
maintaining the ambient air quality standards. 42 U.S.C. 7410(a). 
Therefore, it is a Federal law, the CAA, which requires NAAQS and not a 
requirement created by EPA.
    EPA disagrees with the commenter with regards to the Agency 
``requiring rules about the NAAQS.'' When a state incorporates into its 
state regulations a Federal rule or standard by reference to that 
Federal rule, 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 Federal rules 
by reference to maintain consistency between state and Federal 
requirements and for ease of adoption, implementation, and enforcement 
by the state. While nothing in the CAA or EPA's regulations requires 
that West Virginia incorporate by reference the Federal regulations 
setting forth the NAAQS in order to adopt the NAAQS into the State's 
SIP, West Virginia has made the choice to incorporate by reference the 
NAAQS into its SIP. West Virginia is exercising its discretion to adopt 
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.
    The SIP revision in this rulemaking was submitted by West Virginia 
because the State'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, 2017. Because West Virginia wants 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, 2017 to June 1, 2018. By 
revising this date, West Virginia's ambient air quality standards and 
air monitoring methods would match the NAAQS and air monitoring methods 
in 40 CFR parts 50 and 53 as of June 1, 2018.
    Comment 3: Another commenter also asked why EPA was requiring rules 
about the NAAQS and suggested that these rules ``are to be voluntary, 
in order to reduce undue administrative burdens on states to make the 
NAAQS optional.''
    Response 3: As stated in response to comment 2 of this preamble, 
the purpose of the NAAQS is to protect human health and the 
environment, and Federal law (the CAA) requires that the Administrator 
establish the NAAQS and requires that states adopt plans to ensure the 
NAAQS are achieved and maintained. It is not within EPA's authority to 
make the NAAQS voluntary. EPA also notes that West Virginia has 
voluntarily chosen to use the method of incorporation by reference to 
adopt the NAAQS into its State regulations and the SIP. West Virginia 
could have directly adopted the NAAQS standards into West Virginia's 
regulations without using the incorporation by reference method. As 
stated previously, states often choose to incorporate the Federal 
regulations by reference in order to ensure the state's regulations 
(and therefore the SIP) are identical to Federal standards for 
implementation and enforcement purposes.

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 May 6, 2019.

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 of 45CSR8, as 
effective on June 1, 2019. EPA has made, and will continue to make, 
these materials generally available through https://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 (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);

[[Page 10615]]

     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 April 27, 2020. 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, approving the West Virginia SIP revision 
incorporation by reference the NAAQS, 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, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: February 7, 2020.
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) entitled ``EPA-Approved 
Regulations in the West Virginia SIP'' is amended by revising entries 
under the heading ``[45 CSR] Series 8 Ambient Air Quality Standards'' 
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 explanation/
 State citation  [Chapter 16-20      Title/subject      effective    EPA approval date      citation at 40 CFR
           or 45 CSR]                                      date                                  52.2565
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                                 [45 CSR] Series 8 Ambient Air Quality Standards
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Section 45-8-1..................  General............       6/1/19  2/25/20, [Insert     Docket #2019-0553.
                                                                     Federal Register     Filing and effective
                                                                     citation].           dates are revised;
                                                                                          Sunset provision
                                                                                          added.
Section 45-8-2..................  Definitions........       6/1/19  2/25/20, [Insert     Docket #2019-0553.
                                                                     Federal Register     Previous Approval 10/5/
                                                                     citation].           18.
Section 45-8-3..................  Adoption of               6/1/19  2/25/20, [Insert     Docket #2019-0553.
                                   Standards.                        Federal Register     Effective date is
                                                                     citation].           revised.
Section 45-8-4..................  Inconsistency             6/1/19  2/25/20, [Insert     Docket #2019-0553.
                                   Between Rules.                    Federal Register     Previous Approval 10/5/
                                                                     citation].           18.
 
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[FR Doc. 2020-03153 Filed 2-24-20; 8:45 am]
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