[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Rules and Regulations]
[Pages 48249-48252]
[FR Doc No: 2018-20617]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0217; EPA-R03-OAR-2014-0299; EPA-R03-OAR-2016-0373;
FRL-9984-30-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Regional Haze Plan and Visibility Requirements for the
2010 Sulfur Dioxide and the 2012 Fine Particulate Matter 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 (West Virginia). This SIP revision changes West Virginia's
reliance on the Clean Air Interstate Rule (CAIR) to reliance on the
Cross-State Air Pollution Rule (CSAPR) with the purpose of addressing
certain regional haze requirements and the visibility protection
requirements for the 2010 sulfur dioxide (SO2) national
ambient air quality standards (NAAQS). EPA is approving this SIP
revision and consequently converting the Agency's prior limited
approval/limited disapproval of West Virginia's regional haze SIP
revision to a full approval and withdrawing the federal implementation
plan (FIP) provisions for addressing our prior limited disapproval.
Based on our full approval of West Virginia's regional haze program,
EPA is also approving the portions of West Virginia's infrastructure
SIP revisions for the 2010 SO2 and 2012 fine particulate
matter (PM2.5) NAAQS addressing visibility protection
requirements. This action is being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on October 24, 2018.

ADDRESSES: EPA has established a docket for this rulemaking action
under Docket ID Number EPA-R03-OAR-2018-0217. The following previously
established dockets are also relevant to today's action: Docket ID
Number EPA-R03-OAR-2014-0299; and EPA-R03-OAR-2016-0373. 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: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by email at [email protected].

SUPPLEMENTARY INFORMATION: On September 16, 2015, the State of West
Virginia via the West Virginia Department of Environmental Protection
(WVDEP) submitted a revision to its SIP to update its regional haze
plan and to meet the visibility protection requirement in section
110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS. EPA
is also addressing as part of this rulemaking action two SIP revisions
submitted by West Virginia on October 16, 2014 and May 12, 2017
addressing the visibility protection requirement in section
110(a)(2)(D)(i)(II) for the 2010 SO2 and 2012
PM2.5 NAAQS, respectively.

I. Background

    On March 23, 2012, EPA finalized a limited approval and a limited
disapproval of a West Virginia SIP revision submitted on June 18, 2008
addressing regional haze program requirements.\1\ The limited
disapproval of this SIP revision was based upon West Virginia's
reliance on CAIR as an alternative to best available retrofit
technology (BART) and as a measure for reasonable progress. On June 7,
2012, EPA promulgated a FIP for West Virginia that replaced reliance on
CAIR with reliance on CSAPR to meet BART and reasonable progress
requirements, to address the deficiency in the State's CAIR-dependent
regional haze SIP.\2\ Consequently, this particular aspect of West
Virginia's regional haze requirements was satisfied by EPA's issuance
of a FIP (hereafter referred to as partial Regional Haze FIP).
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    \1\ 77 FR 16937 (March 23, 2012).
    \2\ 77 FR 33643 (June 7, 2012).
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    On September 16, 2015, the State of West Virginia submitted a SIP
revision to change its present reliance from CAIR to CSAPR for the
purpose of meeting BART for regional haze and addressing reasonable
progress requirements, thereby eliminating West Virginia's need for the
partial Regional Haze FIP. The SIP revision was also submitted to meet
the outstanding visibility protection requirement under section
110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS, also
known as prong 4. The prong 4 requirement under the CAA requires that a
state's SIP include adequate provisions prohibiting any source or other
type of emissions activity in one state from interfering with measures
to protect visibility

required to be included in another state's overall SIP. One way in
which prong 4 can be satisfied is if a state has a fully approved
regional haze program within its SIP. The September 16, 2015 SIP
revision amends the portion of West Virginia's October 16, 2014
infrastructure SIP submission for the 2010 SO2 NAAQS
addressing prong. On May 12, 2017, West Virginia submitted another SIP
revision addressing infrastructure requirements under section 110(a)(2)
for the 2012 PM2.5 NAAQS, including prong 4 for visibility
protection. The May 12, 2017 relies on the September 16, 2015 SIP
revision to meet prong 4.
    On June 14, 2018 (83 FR 27734), EPA published a notice of proposed
rulemaking (NPR) addressing West Virginia's three SIP revisions
submitted to address certain regional haze requirements and the
visibility provisions of section 110(a)(2)(D)(i) of the CAA for the
2010 SO2 and the 2012 PM2.5 NAAQS. In the NPR,
EPA proposed to take the following actions: (1) To approve West
Virginia's September 16, 2015 SIP revision that changed West Virginia's
reliance on CAIR to reliance on CSAPR for certain elements of West
Virginia's regional haze program; (2) to convert EPA's limited
approval/limited disapproval \3\ of West Virginia's regional haze
program to a full approval; (3) to remove the partial Regional Haze FIP
for West Virginia that addressed the deficiencies associated with the
Agency's prior limited disapproval; and (4) to approve portions of West
Virginia's October 16, 2014 and May 12, 2017 infrastructure SIP
revisions for the 2010 SO2 and the 2012 PM2.5
NAAQS, respectively, addressing the visibility protection provisions of
section 110(a)(2)(D)(i) of the CAA.
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    \3\ 77 FR 33642 (June 7, 2012).
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II. Summary of SIP Revision and EPA Analysis

    The September 16, 2015 SIP revision from West Virginia corrects the
deficiencies identified by EPA in the June 7, 2012 limited disapproval
of West Virginia's regional haze program, by replacing reliance on CAIR
with reliance on CSAPR in its regional haze SIP. Specifically, the
September 16, 2015 SIP submittal changes the West Virginia regional
haze program to specify that the State is relying on CSAPR in its
regional haze SIP to meet the best available retrofit technology (BART)
for certain electric generating units (EGUs) and reasonable progress
requirements to support visibility improvement progress goals for West
Virginia's Class I areas, Dolly Sods and Otter Creek Wilderness Areas.
    As did EPA's partial Regional Haze FIP for West Virginia, the
State's September 16, 2015 regional haze SIP revision relies on CSAPR
to address the deficiencies identified in EPA's June 2012 limited
disapproval of West Virginia's regional haze SIP. As discussed in the
NPR in greater detail, EPA finds that this SIP revision satisfies West
Virginia's BART requirements for its EGUs and reasonable progress
requirements and therefore allows for a fully approvable regional haze
program. With today's final approval, the State has a SIP in place to
address all of its regional haze requirements. EPA finds that West
Virginia's reliance in its SIP upon CSAPR for certain BART and
reasonable progress requirements is in accordance with the CAA and
regional haze rule requirements (including 40 CFR 51.308(e)(2)), as EPA
has recently affirmed that CSAPR remains an appropriate alternative to
source-specific BART controls for EGUs participating in CSAPR.\4\
Because the deficiencies in West Virginia's regional haze SIP
associated with the State's reliance on CAIR that were identified in
EPA's prior limited disapproval are addressed through West Virginia's
revised SIP, the Agency is now fully approving the State's regional
haze SIP.
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    \4\ See 82 FR 45481 (September 29, 2017) (affirming the validity
to EPA's determination that participation in CSAPR satisfies the
criteria for an alternative to BART following changes to the
program.)
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    Additionally, EPA finds that the prong 4 portions of West
Virginia's infrastructure SIP revision submittals for the 2010
SO2 NAAQS and the 2012 PM2.5 NAAQS, respectively,
are fully approvable as West Virginia now has a fully approved regional
haze SIP.\5\ The specific details of West Virginia's September 16, 2015
SIP revision and the rationale for EPA's approval of the three SIP
revisions are discussed in the NPR (83 FR 27734, June 14, 2018) and
will not be restated here.
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    \5\ West Virginia's 2010 SO2 NAAQS and 2012
PM2.5 NAAQS infrastructure SIP submissions relied on the
State having a fully approved regional haze program to satisfy its
prong 4 requirements. However, at the time of both infrastructure
SIP submittals, West Virginia did not have a fully approved regional
haze program as the Agency had issued a limited disapproval of the
State's regional haze plan on June 7, 2012, due to its reliance on
CAIR.
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    EPA received a total of three comments on the June 2018 NPR. Two of
those did not concern any of the specific issues raised in the NPR, nor
did they address EPA's rationale for the proposed approval of West
Virginia's SIP revision submittals; therefore, EPA is not responding to
those comments. EPA did receive one relevant comment. That comment, and
EPA's response are discussed below. All comments received are included
in the docket for this rulemaking action.

III. Public Comments and EPA's Response

    EPA received an anonymous comment considered to be adverse and
relevant to this rulemaking action. The commenter states that EPA did
not act on West Virginia's SIP revisions by the required statutory
deadline of 12 months after each of the SIP revisions became complete.
Commenter also asserts that by EPA not approving West Virginia's SIP
revisions timely, and consequently the underlying requirements not
being federally enforceable for nearly 4 years, human health and the
environment have been negatively impacted. Commenter questions why EPA
has taken so long to act on these SIP revisions and requests an
explanation of how visibility was protected in the last 3 to 4 years
when the SIP revisions were deficient and unapprovable.
    Response: EPA acknowledges that it missed the statutory deadlines
to take action on the three West Virginia SIP revisions addressed in
this rulemaking action. However, at this time, EPA is taking final
action on these SIP revisions, and by doing so it would meet all such
outstanding obligations under the CAA. EPA disagrees with commenter's
assertion that delayed action on the three West Virginia SIP revisions
concerning visibility protection has impacted human health and the
environment. As explained in the NPR, West Virginia's regional haze
requirements addressing visibility protection have been satisfied since
2012 by our limited approval of portions of West Virginia's June 18,
2008 comprehensive regional haze SIP revision and by EPA's promulgation
of the partial Regional Haze FIP addressing BART for EGUs. EPA's
limited approval of West Virginia's regional haze SIP and the partial
Regional Haze FIP are federally enforceable and have been since 2012,
and they have addressed fully West Virginia's regional haze obligations
under CAA section 169A and 40 CFR 51.308. As discussed in the NPR, EPA
finalized a limited approval and limited disapproval of West Virginia's
June 18, 2008 SIP revision on March 23, 2012, disapproving only the
portions of the SIP revision where West Virginia relied on CAIR as an
alternative to BART for EGUs and as a measure for reasonable progress,
since CAIR had been remanded to EPA by 2012. On June

7, 2012, EPA had promulgated partial Regional Haze FIPs for states that
had relied on CAIR to replace reliance on CAIR with reliance on CSAPR
for haze requirements, including West Virginia.
    Thus, EPA's action on the portions of West Virginia's
infrastructure SIP revisions for the 2010 SO2 and the 2012
PM2.5 NAAQS addressing visibility protection (prong 4) did
not have any impact on implementation of required regional haze
measures, given that EPA had already limitedly approved West Virginia's
regional haze SIP and promulgated the partial Regional Haze FIP for
BART and regional progress purposes for EGUs.
    Because West Virginia was already subject to a FIP addressing West
Virginia's reliance on CAIR for certain regional haze elements, EPA's
disapproval of the State's infrastructure elements for visibility
protection (prong 4) under either the 2010 SO2 or the 2012
PM2.5 NAAQS: (1) would not have imposed any mandatory
sanctions under section 179 of the CAA, as neither infrastructure nor
regional haze SIPs are subject to CAA 179 sanctions; and (2) would not
have subjected EPA to any additional FIP duties, because a FIP
addressing the underlying deficiency (i.e. the partial Regional Haze
FIP) was already in place. Thus, earlier action by EPA on West
Virginia's prong 4 SIP revisions for the 2010 SO2 or the
2012 PM2.5 NAAQS would not have further protected public
health or the environment.

IV. Final Action

    EPA is taking the following final actions: (1) Approving West
Virginia's September 16, 2015 SIP revision that changes the State's
reliance on CAIR to reliance on CSAPR for certain elements of West
Virginia's regional haze program; (2) converting EPA's limited
approval/limited disapproval of West Virginia's regional haze program
to a full approval; (3) withdrawing the partial Regional Haze FIP
provisions that address the limited disapproval of West Virginia's
regional haze program; and (4) approving the portions of West
Virginia's October 16, 2014 infrastructure SIP revision for the 2010
SO2 NAAQS and the May 12, 2017 infrastructure SIP revision
for the 2012 PM2.5 NAAQS addressing the visibility
provisions of CAA section 110(a)(2)(D)(i) for each NAAQS.

V. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities because small
entities are not subject to the requirements of this rule. 83 FR 27734
(June 14, 2018).

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments. There are no Indian reservation lands in West
Virginia. Thus, Executive Order 13175 does not apply to this rule.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

L. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(B), this action is subject to the
requirements of CAA section 307(d), as it revises a FIP under CAA
section 110(c).

M. Congressional Review Act (CRA)

    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).

N. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action, addressing West Virginia's regional haze requirements
and visibility protection for the 2010 SO2 and 2012
PM2.5 NAAQS and the withdrawal of the West Virginia partial
Regional Haze FIP, must be filed in the United States Court of Appeals
for the appropriate circuit by November 23, 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 may not be challenged later in proceedings to
enforce its requirements. See CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Regional haze, Reporting and recordkeeping requirements, Sulfur
oxides, Visibility.

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

    Dated: September 14, 2018.
Andrew R. Wheeler,
Acting Administrator.

    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. Section 52.2520 is amended by revising the entries for ``Regional
Haze Plan'', ``Section 110(a)(2) Infrastructure Requirements for the
2010 1-Hour Sulfur Dioxide NAAQS'', and ``Section 110(a)(2)
Infrastructure Requirements for the 2012 p.m.2.5 NAAQS'' in the table
in paragraph (e) to read as follows:

Sec.  52.2520   Identification of plan.

* * * * *
    (e) * * *

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                                                             State
   Name of non-regulatory SIP     Applicable  geographic   submittal   EPA approval date  Additional explanation
            revision                       area               date
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                                                  * * * * * * *
Regional Haze Plan.............  Statewide..............      9/16/15  9/24/18, [Insert   Converted Limited
                                                                        Federal Register   Approval/Limited
                                                                        citation].         Disapproval to Full
                                                                                Approval
                                                                                See Sec.  Sec.
                                                                                52.2533(g) and 3/23/
                                                                                12, 77 FR 16937.

                                                  * * * * * * *
Section 110(a)(2)                Statewide..............      6/25/13  10/16/14, 79 FR    This action addresses
 Infrastructure Requirements                                            62035; 9/24/18,    the following CAA
 for the 2010 1-Hour Sulfur                                             [Insert Federal    elements or portions
 Dioxide NAAQS.                                                         Register           thereof:
                                                                        citation].         110(a)(2)(A), (B),
                                                                                (C) (enforcement and
                                                                                minor source review),
                                                                                (D)(i)(II) (regarding
                                                                                visibility
                                                                                protection), (D)(ii),
                                                                                (E)(i) and (iii),
                                                                                (F), (G), (H), (J)
                                                                                (consultation, public
                                                                                notification, and
                                                                                visibility
                                                                                protection), (K),
                                                                                (L), and (M).
                                                              7/24/14  3/9/15, 80 FR      Addresses CAA element
                                                                        12348.             110(a)(2)(E)(ii).
                                                             6/1/2015  8/11/2016, 81 FR   Approval of PSD-
                                                                        53009.             related element
                                                                                110(a)(2)(C),
                                                                                (D)(i)(II), and (J).
                                                                                See
                                                                                Sec.   52.2520.
                                                              9/16/15  9/24/18, [Insert   Addresses visibility
                                                                        Federal Register   protection element of
                                                                        citation].         CAA section
                                                                                110(a)(2)(D)(i)(II).

                                                  * * * * * * *
Section 110(a)(2)                Statewide..............     11/17/15  5/12/17, 82 FR     This action addresses
 Infrastructure Requirements                                            22078; 9/24/18,    the following CAA
 for the 2012 PM2.5 NAAQS.                                              [Insert Federal    elements:
                                                                        Register          110(a)(2)(A), (B),
                                                                        citation].         (C), (D)(i)(II)
                                                                                (regarding prevention
                                                                                of significant
                                                                                deterioration and
                                                                                visibility
                                                                                protection), (D)(ii),
                                                                                (E), (F), (G), (H),
                                                                                (J), (K), (L), and
                                                                                (M), or portions
                                                                                thereof.
                                                              9/16/15  9/24/18, [Insert   Addresses CAA element
                                                                        Federal Register   110(a)(2)(D)(I)(II)
                                                                        citation].         for visibility.
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* * * * *

0
3. Section 52.2533 is amended by removing and reserving paragraphs (d),
(e), and (f) and by adding paragraph (g).
    The addition reads as follows:

Sec.  52.2533  Visibility protection.

* * * * *
    (g) EPA converts its limited approval/limited disapproval of West
Virginia's regional haze program to a full approval. This SIP revision
changes West Virginia's reliance from the Clean Air Interstate Rule to
the Cross-State Air Pollution Rule to meet the regional haze SIP best
available retrofit technology requirements for certain sources and to
meet reasonable progress requirements.

[FR Doc. 2018-20617 Filed 9-21-18; 8:45 am]
 BILLING CODE 6560-50-P