Rule2021-20322
Air Plan Approval; West Virginia; 2020 Amendments to West Virginia's Ambient Air Quality Standards
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 23, 2021
Issuing agencies
Environmental Protection Agency
Abstract
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).
Full Text
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<title>Federal Register, Volume 86 Issue 182 (Thursday, September 23, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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
<a href="/cdn-cgi/l/email-protection#125c7b717a7d7e613c417760777c73527762733c757d64"><span class="__cf_email__" data-cfemail="a4eacdc7cccbc8d78af7c1d6c1cac5e4c1d4c58ac3cbd2">[email protected]</span></a>.
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
(SO<INF>X</INF>), as required by CAA section 109(d), and retained the
current 1-hour and annual sulfur dioxide (SO<INF>2</INF>) 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>
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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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]
BILLING CODE 6560-50-P
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