[Federal Register Volume 86, Number 182 (Thursday, September 23, 2021)]
[Rules and Regulations]
[Pages 52837-52840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20322]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0487; FRL-8931-02-R3]


Air Plan Approval; West Virginia; 2020 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 West Virginia's incorporation by 
reference of EPA's national ambient air quality standards (NAAQS) and 
the associated monitoring reference and equivalent methods. This action 
is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before October 25, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R03-OAR-2020-0487. 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: Serena Nichols, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, PA 19103. The telephone number is (215) 814-2053. Ms. 
Nichols can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 9, 2021 (86 FR 8727), 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 June 5, 
2020. This formal SIP revision updates West Virginia's incorporation by 
reference of EPA's NAAQS and the associated monitoring reference and 
equivalent methods.

II. Summary of SIP Revision and EPA Analysis

    West Virginia Department of Environmental Protection (WVDEP) has 
historically chosen to incorporate by reference the Federal NAAQS, 
found at 40 CFR part 50, and the associated Federal ambient air 
monitoring reference methods and equivalent methods for these NAAQS 
found at 40 CFR part 53. When incorporating by reference these Federal 
regulations, WVDEP has specified that it is incorporating by reference 
these regulations as they existed on a certain date. The incorporation 
by reference of the NAAQS that is currently approved in the West 
Virginia SIP incorporates by reference 40 CFR parts 50 and 53 as they 
existed on June 1, 2018. West Virginia's June 5, 2020 SIP revision 
updates 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, as of June 1, 
2019. Since the last West Virginia incorporation by reference of June 
1, 2018, EPA: (1) Reviewed the primary NAAQS for sulfur oxides 
(SOX), as required by CAA section 109(d), and retained the 
current 1-hour and annual sulfur dioxide (SO2) NAAQS without 
revision; (2) designated one new equivalent method for measuring 
concentrations of ozone in the ambient air; (3) designated one new 
reference method for measuring concentrations of nitrogen dioxide in 
ambient air; and (4) designated one new reference method for measuring 
concentrations of carbon monoxide in ambient air. See 84 FR 9866 (March 
18, 2019), 84 FR 11973 (March 29, 2019), 84 FR 50833 (September 26, 
2019), and 84 FR 24508 (May 28, 2019).
    The amendments to the legislative rule include changes to section 
45-8-1 (General) and 45-8-3 (Adoption of Standards). The amendments 
update West Virginia's incorporation by reference of the primary and 
secondary NAAQS and the ambient air monitoring reference and equivalent 
methods from June 1, 2018 to June 1, 2019. West Virginia is 
incorporating the Federal

[[Page 52838]]

rules in 40 CFR parts 50 and 53 as they existed on June 1, 2019 into 
45-8-1 and 45-8-3. Other specific requirements and the rationale for 
EPA's proposed action are explained in the NPRM and will not be 
restated here.

III. EPA's Response to Comments Received

    EPA received three comments on the February 9, 2021 NPRM. One 
comment was supportive of the State's revision while the other two 
stated that EPA should not approve this SIP revision and are therefore 
considered adverse comments. All comments received are in the docket 
for this rule. A summary of the two adverse comments and EPA's 
responses are provided herein.
    Comment 1: One commenter claims that EPA should disapprove this SIP 
revision because these rules are already ``in effect and full force.'' 
The commenter claims ``EPA shouldn't have to keep approving West 
Virginia's rules into the SIP which incorporate the National Ambient 
Air Quality Standards. These West Virginia rules stem from the federal 
EPA's air standards and are already in force throughout the state, in 
fact they are in force throughout the entire nation regardless of what 
each individual state does.''
    Response 1: EPA does not agree that the SIP revision should be 
disapproved due to being ``unnecessary.'' West Virginia law allows 
state agencies, such as WVDEP, to incorporate by reference federal 
regulations into the state regulations but does not allow those state 
agencies to ``automatically'' incorporate into the state regulations 
any updates to federal standards incorporated by reference. That is, if 
the federal regulation that was incorporated by reference into the West 
Virginia regulations is changed, the state agency must then go through 
the state regulatory amendment process to ensure that the changes to 
the federal regulation are also adopted into the state regulations. 
Because EPA is required by the Clean Air Act to periodically review and 
revise, if necessary, the NAAQS and the regulations associated with the 
NAAQS, such as the ambient monitoring requirements, West Virginia must 
re-incorporate by reference the NAAQS into the state regulations every 
year to ensure that the NAAQS are up to date in the state law, so that 
they can implement their state air pollution control program. Following 
the update to the state regulations, the state must then submit to EPA 
a SIP revision incorporating the change to the state regulations into 
the SIP. This multi-step process to ensure the NAAQS applied in West 
Virginia are current with the federal NAAQS, and that the up-to-date 
NAAQS are approved into the West Virginia SIP, is the result of West 
Virginia law not providing for ``automatic'' update of state 
regulations when federal regulations that are incorporated by reference 
into the state regulations are changed.
    Comment 2: The second comment from an anonymous party claims ``EPA 
must disapprove West Virginia's rule for adopting the ambient air 
quality standards because of these limitations in state law and the 
requirements of the EPA's National Ambient Air Quality Standards.'' 
This commenter also asserts that this rule conflicts with the NAAQS, 
claiming that ``West Virginia's regulations would provide more 
information on how the state has met its ambient air quality standards 
by requiring that coal companies improve the air quality in their 
facilities. There is no requirement to provide information on how much 
improved air quality is required because the state does not have that 
information. West Virginia does not provide a summary of those 
improvements to other states and requires coal companies to report 
these improvements to West Virginia's Division of Environmental 
Management (DEM).'' The commenter also argues that ``The rule is also 
potentially inconsistent with the EPA's Environmental Justice 
Guidelines for addressing the health effects of air pollution, which 
says that air quality and climate change are two separate issues. This 
rule could limit states' ability to consider this double jeopardy 
standard in their rules, making it more difficult for a state to comply 
with its air pollution law. West Virginia will have to obtain 
additional information and data from other states, which could require 
revisions to the rule, so that it may be consistent with the National 
Ambient Air Quality Standards. In the final rule, the state must prove 
that its proposed regulations are not inconsistent with the National 
Ambient Air Quality Standards because the federal standards are just as 
restrictive as the state's standards and because the other state's 
regulations do not serve the same purposes.''
    Response 2: EPA disagrees that this plan should be disapproved due 
to alleged limitations in state law or potential inconsistencies with 
environmental justice guidelines or the NAAQS. The commenter's intent 
is difficult to discern from the comment. The commenter's initial 
argument does not cite which limitations in state law they are 
concerned about, making it difficult to ascertain how the NAAQS are at 
odds with that state law. To the extent that the comment is concerned 
about reporting requirements and/or the lack of reporting by coal 
producers, EPA is unaware of any conflicts these requirements present 
with the NAAQS. Regarding EPA's environmental justice guidelines, the 
commenter again does not explain how this update to the NAAQS is 
inconsistent with the environmental justice guidelines, and without 
such an explanation EPA cannot assess this claim. Nevertheless, EPA 
does not believe that this plan has any inconsistency with the Agency's 
environmental justice guidelines. Finally, commenter's concern that 
this update to the NAAQS in West Virginia law could prevent the state 
from considering the ``double jeopardy standard'' in their rules is 
also unexplained. ``Double jeopardy'' is a concept whereby a person 
cannot be tried twice for the same criminal act, and the relevance of 
this concept to this particular revision to West Virginia's SIP is not 
at all clear. Furthermore, this revision does not directly pertain to 
climate change but does adopt a change needed to ensure West Virginia 
can work toward ensuring attainment of the NAAQS. Therefore, EPA 
believes that this plan revision is consistent with the requirements of 
the Clean Air Act and therefore approvable.

IV. Final Action

    EPA is approving the West Virginia SIP revision updating the date 
of incorporation by reference of EPA's NAAQS and the associated 
monitoring reference and equivalent methods.

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, 2020. 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 rule of EPA's 
approval, and will be

[[Page 52839]]

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);
     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 November 22, 2021. 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 incorporating 
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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Carbon 
monoxide, Sulfur dioxide, Lead, Particulate matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: September 9, 2021.
Diana Esher,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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 the 
entries for ``Section 45-8-1'', ``Section 45-8-2'', ``Section 45-8-3'' 
and ``Section 45-8-4'' 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
State citation  [Chapter 16-      Title/subject         effective      EPA approval date    explanation/citation
        20 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..............          6/1/20  9/23/21, [Insert       Docket #2020-0487.
                                                                      Federal Register       Filing and
                                                                      citation].             effective dates are
                                                                                             revised.
Section 45-8-2..............  Definitions..........          6/1/20  9/23/21, [Insert       Docket #2020-0487.
                                                                      Federal Register       Previous Approval 2/
                                                                      citation].             25/20.

[[Page 52840]]

 
Section 45-8-3..............  Adoption of Standards          6/1/20  9/23/21, [Insert       Docket #2020-0487.
                                                                      Federal Register       Effective date is
                                                                      citation].             revised.
Section 45-8-4..............  Inconsistency Between          6/1/20  9/23/21, [Insert       Docket #2020-0487.
                               Rules.                                 Federal Register       Previous Approval 2/
                                                                      citation].             25/20.
 
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[FR Doc. 2021-20322 Filed 9-22-21; 8:45 am]
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