Proposed Rule2025-01101
Air Plan Disapproval; West Virginia; Regional Haze State Implementation Plan for the Second Implementation Period
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
January 21, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to disapprove a revision to West Virginia's State Implementation Plan (SIP) submitted by the West Virginia Department of Environmental Protection (WV DEP) on August 12, 2022. The SIP was submitted to satisfy applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's second planning period. If finalized, disapproval does not start a mandatory sanctions clock. The EPA is taking this action pursuant to sections 110 and 169A of the Clean Air Act.
Full Text
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<title>Federal Register, Volume 90 Issue 12 (Tuesday, January 21, 2025)</title>
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[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Proposed Rules]
[Pages 6932-6954]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-01101]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2024-0625; FRL-10253-01-R3]
Air Plan Disapproval; West Virginia; Regional Haze State
Implementation Plan for the Second Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove a revision to West Virginia's State Implementation Plan
(SIP) submitted by the West Virginia Department of Environmental
Protection (WV DEP) on August 12, 2022. The SIP was submitted to
satisfy applicable requirements under the Clean Air Act (CAA) and EPA's
Regional Haze Rule (RHR) for the program's second planning period. If
finalized, disapproval does not start a mandatory sanctions clock. The
EPA is taking this action pursuant to sections 110 and 169A of the
Clean Air Act.
DATES: Written comments must be received on or before February 20,
2025.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2024-0625 at <a href="http://www.regulations.gov">www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. For either manner of submission, the 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. The 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 <a href="http://www.epa.gov/dockets/commenting-epa-dockets">www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Adam Yarina, U.S. Environmental
Protection Agency, Region 3, 1600 John F. Kennedy Boulevard,
Philadelphia, Pennsylvania 19103-2852, at (215) 814-2108, or by email
at <a href="/cdn-cgi/l/email-protection#b8c1d9cad1d6d996f9dcd9d5f8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="d6afb7a4bfb8b7f897b2b7bb96b3a6b7f8b1b9a0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA.
I. What action is the EPA proposing?
The EPA is proposing to disapprove West Virginia's Regional Haze
plan for the second planning period. As required by sections 169A and
169B of the CAA, the Federal RHR at 40 CFR 51.308 calls for State and
Federal agencies to work together to improve visibility in 156 national
parks and wilderness areas. The rule requires the States, in
coordination with the EPA, the U.S. National Parks Service (NPS), U.S.
Fish and Wildlife Service (FWS), the U.S. Forest Service (USFS), and
other interested parties, to develop and implement air quality
protection plans to reduce the pollution that causes visibility
impairment in mandatory Class I Federal areas. Visibility impairing
pollutants include fine and coarse particulate matter (PM) (e.g.,
sulfates, nitrates, organic carbon, elemental carbon, and soil dust)
and their precursors (e.g., sulfur dioxide (SO<INF>2</INF>), oxides of
nitrogen (NO<INF>X</INF>), and, in some cases, volatile organic
compounds (VOC) and ammonia (NH<INF>3</INF>)). As discussed in further
detail below, the EPA is proposing to find that West Virginia has
submitted a Regional Haze plan that does not meet the statutory and
regulatory Regional Haze requirements for the second planning period.
The State's 2022 submission can be found in the docket for this action.
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
In the 1977 CAA Amendments, Congress created a program for
protecting visibility in the nation's mandatory Class I Federal areas,
which include certain national parks and wilderness areas.\1\ CAA
section 169A. The CAA establishes as a national goal the ``prevention
of any future, and the remedying of any existing, impairment of
visibility in mandatory class I Federal
[[Page 6933]]
areas which impairment results from manmade air pollution.'' CAA
section 169A(a)(1). The CAA further directs the EPA to promulgate
regulations to assure reasonable progress toward meeting this national
goal. CAA section 169A(a)(4). On December 2, 1980, the EPA promulgated
regulations to address visibility impairment in mandatory Class I
Federal Areas (hereinafter referred to as ``Class I Areas'') that is
``reasonably attributable'' to a single source or small group of
sources. (45 FR 80084, December 2, 1980). These regulations, codified
at 40 CFR 51.300 through 51.307, represented the first phase of the
EPA's efforts to address visibility impairment. In 1990, Congress added
section 169B to the CAA to further address visibility impairment,
specifically, impairment from Regional Haze. CAA 169B. The EPA
promulgated the RHR, codified at 40 CFR 51.308,\2\ on July 1, 1999. (64
FR 35714, July 1, 1999). These Regional Haze regulations are a central
component of the EPA's comprehensive visibility protection program for
Class I Areas.
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\1\ Areas statutorily designated as mandatory Class I Federal
Areas consist of national parks exceeding 6,000 acres, wilderness
areas and national memorial parks exceeding 5,000 acres, and all
international parks that were in existence on August 7, 1977. CAA
162(a). There are 156 mandatory Class I Areas. The list of areas to
which the requirements of the visibility protection program apply is
in 40 CFR part 81, subpart D.
\2\ In addition to the generally applicable Regional Haze
provisions at 40 CFR 51.308, the EPA also promulgated regulations
specific to addressing Regional Haze visibility impairment in Class
I Areas on the Colorado Plateau at 40 CFR 51.309. The latter
regulations are applicable only for specific jurisdictions' Regional
Haze plans submitted no later than December 17, 2007, and thus are
not relevant here.
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Regional Haze is visibility impairment that is produced by a
multitude of anthropogenic sources and activities which are located
across a broad geographic area and that emit pollutants that impair
visibility. Visibility impairing pollutants include fine and coarse PM
(e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil
dust) and their precursors (e.g., SO<INF>2</INF>, NO<INF>X</INF>, and,
in some cases, VOC and NH<INF>3</INF>). Fine particle precursors react
in the atmosphere to form fine PM (PM<INF>2.5</INF>), which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the perception of clarity and color, as well as visible
distance.\3\
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\3\ There are several ways to measure the amount of visibility
impairment, i.e., haze. One such measurement is the deciview, which
is the principal metric used by the RHR. Under many circumstances, a
change in one deciview will be perceived by the human eye to be the
same on both clear and hazy days. The deciview is unitless. It is
proportional to the logarithm of the atmospheric extinction of
light, which is the perceived dimming of light due to its being
scattered and absorbed as it passes through the atmosphere.
Atmospheric light extinction (bext.) is a metric used for expressing
visibility and is measured in inverse megameters (Mm-1). The EPA's
Guidance on Regional Haze State Implementation Plans for the Second
Implementation Period (``2019 Guidance'') offers the flexibility for
the use of light extinction in certain cases. Light extinction can
be simpler to use in calculations than deciviews, since it is not a
logarithmic function. See, e.g., 2019 Guidance at 16, 19,
<a href="http://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>,The EPA Office of Air Quality
Planning and Standards, Research Triangle Park (August 20, 2019).
The formula for the deciview is 10 ln (bext.)/10 Mm-1). 40 CFR
51.301.
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To address Regional Haze visibility impairment, the 1999 RHR
established an iterative planning process that requires both States in
which Class I Areas are located and States ``the emissions from which
may reasonably be anticipated to cause or contribute to any impairment
of visibility'' in a Class I Area to periodically submit SIP revisions
to address such impairment. CAA section 169A(b)(2); \4\ see also 40 CFR
51.308(b), (f) (establishing submission dates for iterative Regional
Haze SIP revisions); (64 FR 35768, July 1, 1999). Under the CAA, each
SIP submission must contain ``a long-term (ten to fifteen years)
strategy for making reasonable progress toward meeting the national
goal,'' CAA section 169A(b)(2)(B); the initial round of SIP submissions
also had to address the statutory requirement that certain older,
larger sources of visibility impairing pollutants install and operate
the best available retrofit technology (BART). CAA section
169A(b)(2)(A); 40 CFR 51.308(d), (e). States' first Regional Haze SIPs
were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP
submissions containing an updated long-term strategy (LTS) originally
due July 31, 2018, and every ten years thereafter. (64 FR 35768, July
1, 1999). The EPA established in the 1999 RHR that all States either
have Class I Areas within their borders or ``contain sources whose
emissions are reasonably anticipated to contribute to Regional Haze in
a Class I Area''; therefore, all States must submit Regional Haze
SIPs.\5\ Id. at 35721.
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\4\ The RHR expresses the statutory requirement for states to
submit plans addressing out-of-state Class I Areas by providing that
states must address visibility impairment ``in each mandatory Class
I Federal Area located outside the State that may be affected by
emissions from within the State.'' 40 CFR 51.308(d), (f).
\5\ In addition to each of the fifty states, the EPA also
concluded that the Virgin Islands and District of Columbia must also
submit Regional Haze SIPs because they either contain a Class I Area
or contain sources whose emissions are reasonably anticipated to
contribute Regional Haze in a Class I Area. See 40 CFR 51.300(b),
(d)(3).
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Much of the focus in the first implementation period of the
Regional Haze program, which ran from 2007 through 2018, was on
satisfying States' BART obligations. First implementation period SIPs
were additionally required to contain a long-term strategy for making
reasonable progress toward the national visibility goal, of which BART
is one component. The core required elements for the first
implementation period SIPs (other than BART) are laid out in 40 CFR
51.308(d). Those provisions required that States containing Class I
Areas establish reasonable progress goals (RPGs) that are measured in
deciviews and reflect the anticipated visibility conditions at the end
of the implementation period including from implementation of States'
long-term strategy. The first planning period RPGs were required to
provide for an improvement in visibility for the most impaired days
over the period of the implementation plan and ensure no degradation in
visibility for the least impaired days over the same period. In
establishing the RPGs for any Class I Area in a State, the State was
required to consider four statutory factors: the costs of compliance,
the time necessary for compliance, the energy and non-air quality
environmental impacts of compliance, and the remaining useful life of
any potentially affected sources. CAA section 169A(g)(1); 40 CFR
51.308(d)(1).
States were also required to calculate baseline (using the five-
year period of 2000-2004) and natural visibility conditions (i.e.,
visibility conditions without anthropogenic visibility impairment) for
each Class I Area, and to calculate the linear rate of progress needed
to attain natural visibility conditions, assuming a starting point of
baseline visibility conditions in 2004 and ending with natural
conditions in 2064. This linear interpolation is known as the uniform
rate of progress (URP) and is used as a tracking metric to help States
assess the amount of progress they are making towards the national
visibility goal over time in each Class I Area.\6\ 40 CFR
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States'
long-term strategy must include the ``enforceable emissions
limitations, compliance, schedules, and other
[[Page 6934]]
measures as necessary to achieve the reasonable progress goals.'' 40
CFR 51.308(d)(3). In establishing their long-term strategy, States are
required to consult with other States that also contribute to
visibility impairment in a given Class I Area and include all measures
necessary to obtain their shares of the emission reductions needed to
meet the RPGs. 40 CFR 51.308(d)(3)(i) and (ii). Section 51.308(d) also
contains seven additional factors States must consider in formulating
their long-term strategy, 40 CFR 51.308(d)(3)(v), as well as provisions
governing monitoring and other implementation plan requirements. 40 CFR
51.308(d)(4). Finally, the 1999 RHR required States to submit periodic
progress reports--SIP revisions due every five years that contain
information on States' implementation of their Regional Haze plans and
an assessment of whether anything additional is needed to make
reasonable progress, see 40 CFR 51.308(g), (h)--and to consult with the
Federal Land Manager(s) \7\ (FLMs) responsible for each Class I Area
according to the requirements in CAA section 169A(d) and 40 CFR
51.308(i).
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\6\ The EPA established the URP framework in the 1999 RHR to
provide ``an equitable analytical approach'' to assessing the rate
of visibility improvement at Class I Areas across the country. The
start point for the URP analysis is 2004 and the endpoint was
calculated based on the amount of visibility improvement that was
anticipated to result from implementation of existing CAA programs
over the period from the mid-1990s to approximately 2005. Assuming
this rate of progress would continue into the future, the EPA
determined that natural visibility conditions would be reached in 60
years, or 2064 (60 years from the baseline starting point of 2004).
However, the EPA did not establish 2064 as the year by which the
national goal must be reached. 64 FR 35731-32, July 1, 1999. That
is, the URP and the 2064 date are not enforceable targets, but
rather are tools that ``allow for analytical comparisons between the
rate of progress that would be achieved by the state's chosen set of
control measures and the URP.'' (82 FR 3078, 3084, January 10,
2017).
\7\ The EPA's regulations define ``Federal Land Manager'' as
``the Secretary of the department with authority over the Federal
Class I Area (or the Secretary's designee) or, with respect to
Roosevelt-Campobello International Park, the Chairman of the
Roosevelt-Campobello International Park Commission.'' 40 CFR 51.301.
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On January 10, 2017, the EPA promulgated revisions to the RHR, (82
FR 3078, January 10, 2017), that apply for the second and subsequent
implementation periods. The 2017 rulemaking made several changes to the
requirements for Regional Haze SIPs to clarify States' obligations and
streamline certain Regional Haze requirements. The revisions to the
Regional Haze program for the second and subsequent implementation
periods focused on the requirement that States' SIPs contain long-term
strategies for making reasonable progress towards the national
visibility goal. The reasonable progress requirements as revised in the
2017 rulemaking (referred to here as the 2017 RHR Revisions) are
codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR
Revisions adjusted the deadline for States to submit their second
implementation period SIPs from July 31, 2018, to July 31, 2021,
clarified the order of analysis and the relationship between RPGs and
the long-term strategy, and focused on making visibility improvements
on the days with the most anthropogenic visibility impairment, as
opposed to the days with the most visibility impairment overall. The
EPA also revised requirements of the visibility protection program
related to periodic progress reports and FLM consultation. The specific
requirements applicable to second implementation period Regional Haze
SIP submissions are addressed in detail below.
The EPA provided guidance to the States for their second
implementation period SIP submissions in the preamble to the 2017 RHR
Revisions as well as in subsequent, stand-alone guidance documents. In
August 2019, the EPA issued ``Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period'' (``2019
Guidance'').\8\ On July 8, 2021, the EPA issued a memorandum containing
``Clarifications Regarding Regional Haze State Implementation Plans for
the Second Implementation Period'' (``2021 Clarifications Memo'').\9\
Additionally, the EPA further clarified the recommended procedures for
processing ambient visibility data and optionally adjusting the URP to
account for international anthropogenic and prescribed fire impacts in
two technical guidance documents: the December 2018 ``Technical
Guidance on Tracking Visibility Progress for the Second Implementation
Period of the Regional Haze Program'' (``2018 Visibility Tracking
Guidance''),\10\ and the June 2020 ``Recommendation for the Use of
Patched and Substituted Data and Clarification of Data Completeness for
Tracking Visibility Progress for the Second Implementation Period of
the Regional Haze Program'' and associated Technical Addendum (``2020
Data Completeness Memo'').\11\
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\8\ Guidance on Regional Haze State Implementation Plans for the
Second Implementation Period, <a href="https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>, EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019).
\9\ Clarifications Regarding Regional Haze State Implementation
Plans for the Second Implementation Period, <a href="https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf">https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf</a>, EPA Office of Air Quality Planning and Standards,
Research Triangle Park (July 8, 2021).
\10\ Technical Guidance on Tracking Visibility Progress for the
Second Implementation Period of the Regional Haze Program. <a href="https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional">https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional</a>, EPA Office of Air
Quality Planning and Standards, Research Triangle Park. (December
20, 2018).
\11\ Recommendation for the Use of Patched and Substituted Data
and Clarification of Data Completeness for Tracking Visibility
Progress for the Second Implementation Period of the Regional Haze
Program, <a href="http://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program">www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program</a>. EPA Office of Air
Quality Planning and Standards, Research Triangle Park (June 3,
2020).
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As previously explained in the 2021 Clarifications Memo, the EPA
intends the second implementation period of the Regional Haze program
to secure meaningful reductions in visibility impairing pollutants that
build on the significant progress States have achieved to date. The
Agency also recognizes that analyses regarding reasonable progress are
state-specific and that, based on States' and sources' individual
circumstances, what constitutes reasonable reductions in visibility
impairing pollutants will vary from state-to-state. While there exist
many opportunities for States to leverage both ongoing and upcoming
emission reductions under other CAA programs, the Agency expects States
to undertake rigorous reasonable progress analyses that identify
further opportunities to advance the national visibility goal
consistent with the statutory and regulatory requirements. See
generally 2021 Clarifications Memo. This is consistent with Congress's
determination that a visibility protection program is needed in
addition to the CAA's national ambient air quality standards (NAAQS)
and prevention of significant deterioration (PSD) programs, as further
emission reductions may be necessary to adequately protect visibility
in Class I Areas throughout the country.\12\
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\12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how
to best remedy the growing visibility problem in these areas of
great scenic importance, the committee realizes that as a matter of
equity, the national ambient air quality standards cannot be revised
to adequately protect visibility in all areas of the country.''),
(``the mandatory Class I increments of [the PSD program] do not
adequately protect visibility in Class I Areas'').
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B. Roles of Agencies in Addressing Regional Haze
Because the air pollutants and pollution affecting visibility in
Class I Areas can be transported over long distances, successful
implementation of the Regional Haze program requires long-term,
regional coordination among multiple jurisdictions and agencies that
have responsibility for Class I Areas and the emissions that impact
visibility in those Areas. In order to address Regional Haze, States
need to develop strategies in coordination with one another,
considering the effect of emissions from one jurisdiction on the air
quality in another. Five regional planning organizations (RPOs),\13\
which include representation from State and
[[Page 6935]]
tribal governments, the EPA, and FLMs, were developed in the lead-up to
the first implementation period to address Regional Haze. RPOs evaluate
technical information to better understand how emissions from State and
tribal land impact Class I Areas across the country, pursue the
development of regional strategies to reduce emissions of PM and other
pollutants leading to Regional Haze, and help States meet the
consultation requirements of the RHR.
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\13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this
document, the terms RPO and MJO are synonymous.
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The Visibility Improvement State and Tribal Association of the
Southeast (VISTAS), one of the five RPOs described above, is a
collaborative effort of State governments, tribal governments, and
various Federal agencies established to initiate and coordinate
activities associated with the management of regional haze, visibility,
and other air quality issues in the Southeastern region of the United
States. Member States and tribes include Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, South Carolina, Tennessee,
Virginia, and West Virginia, the Eastern Band of Cherokee Indians, and
Knox County, Tennessee (representing the 17 Southeastern local air
agencies). The Federal partner members of VISTAS are the EPA, NPS, FWS,
and USFS.
III. Requirements for Regional Haze Plans for the Second Implementation
Period
Under the CAA and THE EPA's regulations, all 50 States, the
District of Columbia, and the U.S. Virgin Islands are required to
submit regional haze SIPs satisfying the applicable requirements for
the second implementation period of the regional haze program by July
31, 2021. Each State's SIP must contain a long-term strategy for making
reasonable progress toward meeting the national goal of remedying any
existing and preventing any future anthropogenic visibility impairment
in Class I areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays
out the process by which States determine what constitutes their long-
term strategy, with the order of the requirements in 40 CFR
51.308(f)(1) through (3) generally mirroring the order of the steps in
the reasonable progress analysis \14\ and 40 CFR 51.308(f)(4) through
(6) containing additional, related requirements. Broadly speaking, a
State first must identify the Class I areas within the State and
determine the Class I areas outside the State in which visibility may
be affected by emissions from the State. These are the Class I areas
that must be addressed in the State's long-term strategy. See 40 CFR
51.308(f) and (f)(2). For each Class I area within its borders, a State
must then calculate the baseline, current, and natural visibility
conditions for that area, as well as the visibility improvement made to
date and the URP. See 40 CFR 51.308(f)(1). Each State having a Class I
area and/or emissions that may affect visibility in a Class I area must
then develop a long-term strategy that includes the enforceable
emission limitations, compliance schedules, and other measures that are
necessary to make reasonable progress in such areas. A reasonable
progress determination is based on applying the four factors in CAA
section 169A(g)(1) to sources of visibility-impairing pollutants that
the State has selected to assess for controls for the second
implementation period. Additionally, as further explained below, the
RHR at 40 CFR 51.3108(f)(2)(iv) separately provides five ``additional
factors'' \15\ that States must consider in developing their long-term
strategy. See 40 CFR 51.308(f)(2). A State evaluates potential emission
reduction measures for those selected sources and determines which are
necessary to make reasonable progress. Those measures are then
incorporated into the State's long-term strategy. After a State has
developed its long-term strategy, it then establishes RPGs for each
Class I area within its borders by modeling the visibility impacts of
all reasonable progress controls at the end of the second
implementation period, i.e., in 2028, as well as the impacts of other
requirements of the CAA. The RPGs include reasonable progress controls
not only for sources in the State in which the Class I area is located,
but also for sources in other States that contribute to visibility
impairment in that area. The RPGs are then compared to the baseline
visibility conditions and the URP to ensure that progress is being made
towards the statutory goal of preventing any future and remedying any
existing anthropogenic visibility impairment in Class I areas. 40 CFR
51.308(f)(2) and (3).
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\14\ EPA explained in the 2017 RHR Revisions that we were
adopting new regulatory language in 40 CFR 51.308(f) that, unlike
the structure in 51.308(d), ``tracked the actual planning
sequence.'' (82 FR 3091, January 10, 2017).
\15\ The five ``additional factors'' for consideration in
section 51.308(f)(2)(iv) are distinct from the four factors listed
in CAA section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states
must consider and apply to sources in determining reasonable
progress.
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In addition to satisfying the requirements at 40 CFR 51.308(f)
related to reasonable progress, the regional haze SIP submissions
revisions due by July 31, 2021, for the second implementation period
must address the requirements in 40 CFR 51.308(g)(1) through (5)
pertaining to periodic reports describing progress towards the RPGs, 40
CFR 51.308(f)(5), as well as requirements for FLM consultation that
apply to all visibility protection SIPs and SIP revisions. 40 CFR
51.308(i).
A State must submit its regional haze SIP and subsequent SIP
revisions to the EPA according to the requirements applicable to all
SIP revisions under the CAA and the EPA's regulations. See CAA
169(b)(2); CAA 110(a). Upon EPA approval, a SIP is enforceable by the
Agency and the public under the CAA. If the EPA finds that a State
fails to make a required SIP revision, or if the EPA finds that a
State's SIP is incomplete or disapproves the SIP, the Agency must
promulgate a Federal implementation plan (FIP) that satisfies the
applicable requirements. CAA 110(c)(1).
A. Identification of Class I Areas
The first step in developing a regional haze SIP is for a State to
determine which Class I areas, in addition to those within its borders,
``may be affected'' by emissions from within the State. In the 1999
RHR, the EPA determined that all States contribute to visibility
impairment in at least one Class I area, 64 FR 35720-22, July 1, 1999,
and explained that the statute and regulations lay out an ``extremely
low triggering threshold'' for determining ``whether States should be
required to engage in air quality planning and analysis as a
prerequisite to determining the need for control of emissions from
sources within their State.'' Id. at 35721.
A State must determine which Class I areas must be addressed by its
SIP by evaluating the total emissions of visibility impairing
pollutants from all sources within the State. While the RHR does not
require this evaluation to be conducted in any particular manner, the
EPA's 2019 Guidance provides recommendations for how such an assessment
might be accomplished, including by, where appropriate, using the
determinations previously made for the first implementation period.
2019 Guidance at 8-9. In addition, the determination of which Class I
areas may be affected by a State's emissions is subject to the
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical
basis, including modeling, monitoring, cost, engineering, and emissions
information, on which the State is relying to determine the emission
reduction measures that are necessary to make reasonable progress in
each mandatory Class I Federal area it affects.''
[[Page 6936]]
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
As part of assessing whether a SIP submission for the second
implementation period is providing for reasonable progress towards the
national visibility goal, the RHR contains requirements in 40 CFR
51.308(f)(1) related to tracking visibility improvement over time. The
requirements of this section apply only to States having Class I areas
within their borders; the required calculations must be made for each
such Class I area. The EPA's 2018 Visibility Tracking Guidance \16\
provides recommendations to assist States in satisfying their
obligations under 40 CFR 51.308(f)(1); specifically, in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP to account for the
impacts of international anthropogenic emissions and prescribed fires.
See 82 FR 3078 at 3103-05, January 10, 2017.
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\16\ The 2018 Visibility Tracking Guidance references and relies
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking
Progress Under the Regional Haze Rule,'' which can be found at
<a href="http://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf">www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf</a>.
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The RHR requires tracking of visibility conditions on two sets of
days: the clearest and the most impaired days. Visibility conditions
for both sets of days are expressed as the average deciview index for
the relevant five-year period (the period representing baseline or
current visibility conditions). The RHR provides that the relevant sets
of days for visibility tracking purposes are the 20% clearest (the 20%
of monitored days in a calendar year with the lowest values of the
deciview index) and 20% most impaired days (the 20% of monitored days
in a calendar year with the highest amounts of anthropogenic visibility
impairment).\17\ 40 CFR 51.301. A State must calculate visibility
conditions for both the 20% clearest and 20% most impaired days for the
baseline period of 2000-2004 and the most recent five-year period for
which visibility monitoring data are available (representing current
visibility conditions). 40 CFR 51.308(f)(1)(i) and (iii). States must
also calculate natural visibility conditions for the clearest and most
impaired days,\18\ by estimating the conditions that would exist on
those two sets of days absent anthropogenic visibility impairment. 40
CFR 51.308(f)(1)(ii). Using all these data, States must then calculate,
for each Class I area, the amount of progress made since the baseline
period (2000-2004) and how much improvement is left to achieve in order
to reach natural visibility conditions.
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\17\ This document also refers to the 20% clearest and 20% most
anthropogenically impaired days as the ``clearest'' and ``most
impaired'' or ``most anthropogenically impaired'' days,
respectively.
\18\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error
related to the requirement for calculating two sets of natural
conditions values. The rule says ``most impaired days or the
clearest days'' where it should say ``most impaired days and
clearest days.'' This is an error that was intended to be corrected
in the 2017 RHR Revisions but did not get corrected in the final
rule language. This is supported by the preamble text at 82 FR 3098,
January 10, 2017: ``In the final version of 40 CFR 51.308(f)(1)(ii),
an occurrence of ``or'' has been corrected to ``and'' to indicate
that natural visibility conditions for both the most impaired days
and the clearest days must be based on available monitoring
information.''
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Using the data for the set of most impaired days only, States must
plot a line between visibility conditions in the baseline period and
natural visibility conditions for each Class I area to determine the
URP--the amount of visibility improvement, measured in deciviews, that
would need to be achieved during each implementation period in order to
achieve natural visibility conditions by the end of 2064. The URP is
used in later steps of the reasonable progress analysis for
informational purposes and to provide a non-enforceable benchmark
against which to assess a Class I area's rate of visibility
improvement.\19\ Additionally, in the 2017 RHR Revisions, the EPA
provided States the option of proposing to adjust the endpoint of the
URP to account for impacts of anthropogenic sources outside the United
States and/or impacts of certain types of wildland prescribed fires.
These adjustments, which must be approved by the EPA, are intended to
avoid any perception that States should compensate for impacts from
international anthropogenic sources and to give States the flexibility
to determine that limiting the use of wildland-prescribed fire is not
necessary for reasonable progress. 82 FR 3078 at 3107 footnote 116,
January 10, 2017.
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\19\ Being on or below the URP is not a ``safe harbor''; i.e.,
achieving the URP does not mean that a Class I area is making
``reasonable progress'' and does not relieve a state from using the
four statutory factors to determine what level of control is needed
to achieve such progress. See, e.g., 82 FR 3078 at 3093, January 10,
2017.
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The EPA's 2018 Visibility Tracking Guidance can be used to help
satisfy the 40 CFR 51.308(f)(1) requirements, including in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP. In addition, the 2020
Data Completeness Memo provides recommendations on the data
completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides
updated natural conditions estimates for each Class I area.
C. Long-Term Strategy for Regional Haze
The core component of a regional haze SIP submission is a long-term
strategy that addresses regional haze in each Class I area within a
State's borders and each Class I area that may be affected by emissions
from the State. The long-term strategy ``must include the enforceable
emissions limitations, compliance schedules, and other measures that
are necessary to make reasonable progress, as determined pursuant to
(f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). The amount of progress
that is ``reasonable progress'' is based on applying the four statutory
factors in CAA section 169A(g)(1) in an evaluation of potential control
options for sources of visibility impairing pollutants, which is
referred to as a ``four-factor'' analysis. The outcome of that analysis
is the emission reduction measures that a particular source or group of
sources needs to implement in order to make reasonable progress towards
the national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission
reduction measures that are necessary to make reasonable progress may
be either new, additional control measures for a source, or they may be
the existing emission reduction measures that a source is already
implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-
10. Such measures must be represented by ``enforceable emissions
limitations, compliance schedules, and other measures'' (i.e., any
additional compliance tools) in a State's long-term strategy in its
SIP. 40 CFR 51.308(f)(2).
Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the
sources to be evaluated for emission reduction measures; to this end,
the RHR requires States to consider ``major and minor stationary
sources or groups of sources, mobile sources, and area sources'' of
visibility impairing pollutants for potential four-factor control
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is
which visibility impairing pollutants will be analyzed. As the EPA
previously explained, consistent with the first implementation period,
the EPA generally expects that each State will analyze at least
SO<INF>2</INF> and NO<INF>X</INF> in selecting sources and determining
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at
4. A State that chooses not to consider at least these two pollutants
should demonstrate why such
[[Page 6937]]
consideration would be unreasonable. 2021 Clarifications Memo at 4.
While States have the option to analyze all sources, the 2019
Guidance explains that ``an analysis of control measures is not
required for every source in each implementation period,'' and that
``[s]electing a set of sources for analysis of control measures in each
implementation period is . . . consistent with the Regional Haze Rule,
which sets up an iterative planning process and anticipates that a
State may not need to analyze control measures for all its sources in a
given SIP revision.'' 2019 Guidance at 9. However, given that source
selection is the basis of all subsequent control determinations, a
reasonable source selection process ``should be designed and conducted
to ensure that source selection results in a set of pollutants and
sources the evaluation of which has the potential to meaningfully
reduce their contributions to visibility impairment.'' 2021
Clarifications Memo at 3.
The EPA explained in the 2021 Clarifications Memo that each State
has an obligation to submit a long-term strategy that addresses the
regional haze visibility impairment that results from emissions from
within that State. Thus, source selection should focus on the in-state
contribution to visibility impairment and be designed to capture a
meaningful portion of the State's total contribution to visibility
impairment in Class I areas. A State should not decline to select its
largest in-state sources on the basis that there are even larger out-
of-state contributors. 2021 Clarifications Memo at 4.\20\
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\20\ Similarly, in responding to comments on the 2017 RHR
Revisions EPA explained that ``[a] state should not fail to address
its many relatively low-impact sources merely because it only has
such sources and another state has even more low-impact sources and/
or some high impact sources.'' Responses to Comments on Protection
of Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016) at 87-88.
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Thus, while States have discretion to choose any source selection
methodology that is reasonable, whatever choices they make should be
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that
a State's SIP submission include ``a description of the criteria it
used to determine which sources or groups of sources it evaluated.''
The technical basis for source selection, which may include methods for
quantifying potential visibility impacts such as emissions divided by
distance metrics, trajectory analyses, residence time analyses, and/or
photochemical modeling, must also be appropriately documented, as
required by 40 CFR 51.308 (f)(2)(iii).
Once a State has selected the set of sources, the next step is to
determine the emissions reduction measures for those sources that are
necessary to make reasonable progress for the second implementation
period.\21\ This is accomplished by considering the four factors--``the
costs of compliance, the time necessary for compliance, and the energy
and non-air quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' CAA 169A(g)(1). The EPA has explained that the four-
factor analysis is an assessment of potential emission reduction
measures (i.e., control options) for sources; ``use of the terms
`compliance' and `subject to such requirements' in section 169A(g)(1)
strongly indicates that Congress intended the relevant determination to
be the requirements with which sources would have to comply in order to
satisfy the CAA's reasonable progress mandate.'' 82 FR 3078 at 3091,
January 10, 2017. Thus, for each source it has selected for four-factor
analysis,\22\ a State must consider a ``meaningful set'' of technically
feasible control options for reducing emissions of visibility impairing
pollutants. Id. at 3088. The 2019 Guidance provides that ``[a] state
must reasonably pick and justify the measures that it will consider,
recognizing that there is no statutory or regulatory requirement to
consider all technically feasible measures or any particular measures.
A range of technically feasible measures available to reduce emissions
would be one way to justify a reasonable set.'' 2019 Guidance at 29.
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\21\ The CAA provides that, ``[i]n determining reasonable
progress there shall be taken into consideration'' the four
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source
categories, a state may also consider additional emission reduction
measures for inclusion in its long-term strategy, e.g., from other
newly adopted, on-the-books, or on-the-way rules and measures for
sources not selected for four-factor analysis for the second
planning period.
\22\ ``Each source'' or ``particular source'' is used here as
shorthand. While a source-specific analysis is one way of applying
the four factors, neither the statute nor the RHR requires states to
evaluate individual sources. Rather, states have ``the flexibility
to conduct four-factor analyses for specific sources, groups of
sources or even entire source categories, depending on state policy
preferences and the specific circumstances of each state.'' 82 FR
3078 at 3088, January 10, 2017. However, not all approaches to
grouping sources for four-factor analysis are necessarily
reasonable; the reasonableness of grouping sources in any particular
instance will depend on the circumstances and the manner in which
grouping is conducted. If it is feasible to establish and enforce
different requirements for sources or subgroups of sources, and if
relevant factors can be quantified for those sources or subgroups,
then states should make a separate reasonable progress determination
for each source or subgroup. 2021 Clarifications Memo at 7-8.
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The EPA's 2021 Clarifications Memo provides further guidance on
what constitutes a reasonable set of control options for consideration:
``A reasonable four-factor analysis will consider the full range of
potentially reasonable options for reducing emissions.'' 2021
Clarifications Memo at 7. In addition to add-on controls and other
retrofits (i.e., new emission reduction measures for sources), The EPA
explained that States should generally analyze efficiency improvements
for sources' existing measures as control options in their four-factor
analyses, as in many cases such improvements are reasonable given that
they typically involve only additional operation and maintenance costs.
Additionally, the 2021 Clarifications Memo provides that States that
have assumed a higher emission rate than a source has achieved or could
potentially achieve using its existing measures should also consider
lower emission rates as potential control options. That is, a State
should consider a source's recent actual and projected emission rates
to determine if it could reasonably attain lower emission rates with
its existing measures. If so, the State should analyze the lower
emission rate as a control option for reducing emissions. 2021
Clarifications Memo at 7. The EPA's recommendations to analyze
potential efficiency improvements and achievable lower emission rates
apply to both sources that have been selected for four-factor analysis
and those that have forgone a four-factor analysis on the basis of
existing ``effective controls.'' See 2021 Clarifications Memo at 5, 10.
After identifying a reasonable set of potential control options for
the sources it has selected, a State then collects information on the
four factors with regard to each option identified. The EPA has also
explained that, in addition to the four statutory factors, States have
flexibility under the CAA and RHR to reasonably consider visibility
benefits as an additional factor alongside the four statutory
factors.\23\ The 2019 Guidance provides recommendations for the types
of information that can be used to characterize the four factors (with
or without visibility), as well as ways in which States might
reasonably consider and balance that information to determine which of
the potential control options is necessary to make reasonable
[[Page 6938]]
progress. See 2019 Guidance at 30-36. The 2021 Clarifications Memo
contains further guidance on how States can reasonably consider modeled
visibility impacts or benefits in the context of a four-factor
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, the
EPA explained that while visibility can reasonably be used when
comparing and choosing between multiple reasonable control options, it
should not be used to summarily reject controls that are reasonable
given the four statutory factors. 2021 Clarifications Memo at 13.
Ultimately, while States have discretion to reasonably weigh the
factors and to determine what level of control is needed, 40 CFR
51.308(f)(2)(i) provides that a State ``must include in its
implementation plan a description of . . . how the four factors were
taken into consideration in selecting the measure for inclusion in its
long-term strategy.''
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\23\ See, e.g., Responses to Comments on Protection of
Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531,
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
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As explained previously, 40 CFR 51.308(f)(2)(i) requires States to
determine the emission reduction measures for sources that are
necessary to make reasonable progress by considering the four factors.
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make
reasonable progress towards the national visibility goal must be
included in a State's long-term strategy and in its SIP.\24\ If the
outcome of a four-factor analysis is a new, additional emission
reduction measure for a source, that new measure is necessary to make
reasonable progress towards remedying existing anthropogenic visibility
impairment and must be included in the SIP. If the outcome of a four-
factor analysis is that no new measures are reasonable for a source,
continued implementation of the source's existing measures is generally
necessary to prevent future emission increases and thus to make
reasonable progress towards the second part of the national visibility
goal: preventing future anthropogenic visibility impairment. See CAA
169A(a)(1). That is, when the result of a four-factor analysis is that
no new measures are necessary to make reasonable progress, the source's
existing measures are generally necessary to make reasonable progress
and must be included in the SIP. However, there may be circumstances in
which a State can demonstrate that a source's existing measures are not
necessary to make reasonable progress. Specifically, if a State can
demonstrate that a source will continue to implement its existing
measures and will not increase its emission rate, it may not be
necessary to have those measures in the long-term strategy in order to
prevent future emission increases and future visibility impairment. The
EPA's 2021 Clarifications Memo provides further explanation and
guidance on how States may demonstrate that a source's existing
measures are not necessary to make reasonable progress. See 2021
Clarifications Memo at 8-10. If the State can make such a
demonstration, it need not include a source's existing measures in the
long-term strategy or its SIP.
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\24\ States may choose to, but are not required to, include
measures in their long-term strategies beyond just the emission
reduction measures that are necessary for reasonable progress. See
2021 Clarifications Memo at 16. For example, states with smoke
management programs may choose to submit their smoke management
plans to EPA for inclusion in their SIPs but are not required to do
so. See, e.g., 82 FR 3078 at 3108-09, January 10, 2017 (requirement
to consider smoke management practices and smoke management programs
under 40 CFR 51.308(f)(2)(iv) does not require states to adopt such
practices or programs into their SIPs, although they may elect to do
so).
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As with source selection, the characterization of information on
each of the factors is also subject to the documentation requirement in
40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including
source selection, information gathering, characterization of the four
statutory factors (and potentially visibility), balancing of the four
factors, and selection of the emission reduction measures that
represent reasonable progress, is a technically complex exercise, but
also a flexible one that provides States with bounded discretion to
design and implement approaches appropriate to their circumstances.
Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important
function in requiring a State to document the technical basis for its
decision making so that the public and the EPA can comprehend and
evaluate the information and analysis the State relied upon to
determine what emission reduction measures must be in place to make
reasonable progress. The technical documentation must include the
modeling, monitoring, cost, engineering, and emissions information on
which the State relied to determine the measures necessary to make
reasonable progress. This documentation requirement can be met through
the provision of and reliance on technical analyses developed through a
regional planning process, so long as that process and its output has
been approved by all State participants. In addition to the explicit
regulatory requirement to document the technical basis of their
reasonable progress determinations, States are also subject to the
general principle that those determinations must be reasonably moored
to the statute.\25\ That is, a State's decisions about the emission
reduction measures that are necessary to make reasonable progress must
be consistent with the statutory goal of remedying existing and
preventing future visibility impairment.
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\25\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir.
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013);
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf.
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S.
461, 485, 490 (2004).
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The four statutory factors (and potentially visibility) are used to
determine what emission reduction measures for selected sources must be
included in a State's long-term strategy for making reasonable
progress. Additionally, the RHR at 40 CFR 51.308(f)(2)(iv) separately
provides five ``additional factors'' \26\ that States must consider in
developing their long-term strategies: (1) emission reductions due to
ongoing air pollution control programs, including measures to address
reasonably attributable visibility impairment; (2) measures to reduce
the impacts of construction activities; (3) source retirement and
replacement schedules; (4) basic smoke management practices for
prescribed fire used for agricultural and wildland vegetation
management purposes and smoke management programs; and (5) the
anticipated net effect on visibility due to projected changes in point,
area, and mobile source emissions over the period addressed by the
long-term strategy. The 2019 Guidance provides that a State may satisfy
this requirement by considering these additional factors in the process
of selecting sources for four-factor analysis, when performing that
analysis, or both, and that not every one of the additional factors
needs to be considered at the same stage of the process. See 2019
Guidance at 21. The EPA provided further guidance on the five
additional factors in the 2021 Clarifications Memo, explaining that a
State should generally not reject cost-effective and otherwise
reasonable controls merely because there have been emission reductions
since the first planning period owing to other ongoing air pollution
control programs or merely because visibility is otherwise projected to
improve at Class I areas. Additionally, States generally should not
rely on these additional factors to
[[Page 6939]]
summarily assert that the State has already made sufficient progress
and, therefore, no sources need to be selected or no new controls are
needed regardless of the outcome of four-factor analyses. 2021
Clarifications Memo at 13.
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\26\ The five ``additional factors'' for consideration in
section 51.308(f)(2)(iv) are distinct from the four factors listed
in CAA section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states
must consider and apply to sources in determining reasonable
progress.
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Because the air pollution that causes regional haze crosses State
boundaries, 40 CFR 51.308(f)(2)(ii) requires a State to consult with
other States that also have emissions that are reasonably anticipated
to contribute to visibility impairment in a given Class I area.
Consultation allows for each State that impacts visibility in an area
to share whatever technical information, analyses, and control
determinations may be necessary to develop coordinated emission
management strategies. This coordination may be managed through inter-
and intra-RPO consultation and the development of regional emissions
strategies; additional consultations between States outside of RPO
processes may also occur. If a State, pursuant to consultation, agrees
that certain measures (e.g., a certain emission limitation) are
necessary to make reasonable progress at a Class I area, it must
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A).
Additionally, the RHR requires that States that contribute to
visibility impairment at the same Class I area consider the emission
reduction measures the other contributing States have identified as
being necessary to make reasonable progress for their own sources. 40
CFR 51.308(f)(2)(ii)(B). If a State has been asked to consider or adopt
certain emission reduction measures, but ultimately determines those
measures are not necessary to make reasonable progress, that State must
document in its SIP the actions taken to resolve the disagreement. 40
CFR 51.308(f)(2)(ii)(C). The EPA will consider the technical
information and explanations presented by the submitting State and the
State with which it disagrees when considering whether to approve the
State's SIP. See id.; 2019 Guidance at 53. Under all circumstances, a
State must document in its SIP submission all substantive consultations
with other contributing States. 40 CFR 51.308(f)(2)(ii)(C).
D. Reasonable Progress Goals
Reasonable progress goals ``measure the progress that is projected
to be achieved by the control measures States have determined are
necessary to make reasonable progress based on a four-factor
analysis.'' 82 FR 3078 at 3091, January 10, 2017. Their primary purpose
is to assist the public and the EPA in assessing the reasonableness of
States' long-term strategies for making reasonable progress towards the
national visibility goal. See 40 CFR 51.308(f)(3)(iii) and (iv). States
in which Class I areas are located must establish two RPGs, both in
deciviews--one representing visibility conditions on the clearest days
and one representing visibility on the most anthropogenically impaired
days--for each area within their borders. 40 CFR 51.308(f)(3)(i). The
two RPGs are intended to reflect the projected impacts, on the two sets
of days, of the emission reduction measures the State with the Class I
area, as well as all other contributing States, have included in their
long-term strategies for the second implementation period.\27\ The RPGs
also account for the projected impacts of implementing other CAA
requirements, including non-SIP based requirements. Because RPGs are
the modeled result of the measures in States' long-term strategies (as
well as other measures required under the CAA), they cannot be
determined before States have conducted their four-factor analyses and
determined the control measures that are necessary to make reasonable
progress. See 2021 Clarifications Memo at 6.
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\27\ RPGs are intended to reflect the projected impacts of the
measures all contributing states include in their long-term
strategies. However, due to the timing of analyses and of control
determinations by other states, other on-going emissions changes, a
particular state's RPGs may not reflect all control measures and
emissions reductions that are expected to occur by the end of the
implementation period. The 2019 Guidance provides recommendations
for addressing the timing of RPG calculations when states are
developing their long-term strategies on disparate schedules, as
well as for adjusting RPGs using a post-modeling approach. 2019
Guidance at 47-48.
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For the second implementation period, the RPGs are set for 2028.
Reasonable progress goals are not enforceable targets, 40 CFR
51.308(f)(3)(iii); rather, they ``provide a way for the States to check
the projected outcome of the [long-term strategy] against the goals for
visibility improvement.'' 2019 Guidance at 46. While States are not
legally obligated to achieve the visibility conditions described in
their RPGs, 40 CFR 51.308(f)(3)(i) requires that ``[t]he long-term
strategy and the reasonable progress goals must provide for an
improvement in visibility for the most impaired days since the baseline
period and ensure no degradation in visibility for the clearest days
since the baseline period.'' Thus, States are required to have emission
reduction measures in their long-term strategies that are projected to
achieve visibility conditions on the most impaired days that are better
than the baseline period and shows no degradation on the clearest days
compared to the clearest days from the baseline period. The baseline
period for the purpose of this comparison is the baseline visibility
condition--the annual average visibility condition for the period 2000-
2004. See 40 CFR 51.308(f)(1)(i), 82 FR 3078 at 3097-98, January 10,
2017.
So that RPGs may also serve as a metric for assessing the amount of
progress a State is making towards the national visibility goal, the
RHR requires States with Class I areas to compare the 2028 RPG for the
most impaired days to the corresponding point on the URP line
(representing visibility conditions in 2028 if visibility were to
improve at a linear rate from conditions in the baseline period of
2000-2004 to natural visibility conditions in 2064). If the most
impaired days RPG in 2028 is above the URP (i.e., if visibility
conditions are improving more slowly than the rate described by the
URP), each State that contributes to visibility impairment in the Class
I area must demonstrate, based on the four-factor analysis required
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction
measures would be reasonable to include in its long-term strategy. 40
CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires
that each State contributing to visibility impairment in a Class I area
that is projected to improve more slowly than the URP provide ``a
robust demonstration, including documenting the criteria used to
determine which sources or groups [of] sources were evaluated and how
the four factors required by paragraph (f)(2)(i) were taken into
consideration in selecting the measures for inclusion in its long-term
strategy.'' The 2019 Guidance provides suggestions about how such a
``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also
explain that projecting an RPG that is on or below the URP based on
only on-the-books and/or on-the-way control measures (i.e., control
measures already required or anticipated before the four-factor
analysis is conducted) is not a ``safe harbor'' from the CAA's and
RHR's requirement that all States must conduct a four-factor analysis
to determine what emission reduction measures constitute reasonable
progress. The URP is a planning metric used to gauge the amount of
progress made thus far and the amount left before reaching natural
visibility conditions. However, the URP is not based on consideration
of the four statutory factors and therefore cannot
[[Page 6940]]
answer the question of whether the amount of progress being made in any
particular implementation period is ``reasonable progress.'' See 82 FR
3078 at 3093, 3099-3100, January 10, 2017; 2019 Guidance at 22; 2021
Clarifications Memo at 15-16.
E. Monitoring Strategy and Other State Implementation Plan Requirements
Section 51.308(f)(6) requires States to have certain strategies and
elements in place for assessing and reporting on visibility. Individual
requirements under this section apply either to States with Class I
areas within their borders, States with no Class I areas but that are
reasonably anticipated to cause or contribute to visibility impairment
in any Class I area, or both. A State with Class I areas within its
borders must submit with its SIP revision a monitoring strategy for
measuring, characterizing, and reporting regional haze visibility
impairment that is representative of all Class I areas within the
State. SIP revisions for such States must also provide for the
establishment of any additional monitoring sites or equipment needed to
assess visibility conditions in Class I areas, as well as reporting of
all visibility monitoring data to the EPA at least annually. Compliance
with the monitoring strategy requirement may be met through a State's
participation in the Interagency Monitoring of Protected Visual
Environments (IMPROVE) monitoring network, which is used to measure
visibility impairment caused by air pollution at the 156 Class I areas
covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i) and
(iv). The IMPROVE monitoring data is used to determine the 20% most
anthropogenically impaired and 20% clearest sets of days every year at
each Class I area and tracks visibility impairment over time.
All States' SIPs must provide for procedures by which monitoring
data and other information are used to determine the contribution of
emissions from within the State to regional haze visibility impairment
in affected Class I areas. 40 CFR 51.308(f)(6)(ii) and (iii). Section
51.308(f)(6)(v) further requires that all States' SIPs provide for a
statewide inventory of emissions of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment in any
Class I area; the inventory must include emissions for the most recent
year for which data are available and estimates of future projected
emissions. States must also include commitments to update their
inventories periodically. The inventories themselves do not need to be
included as elements in the SIP and are not subject to EPA review as
part of the Agency's evaluation of a SIP revision.\28\ All States' SIPs
must also provide for any other elements, including reporting,
recordkeeping, and other measures, that are necessary for States to
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019
Guidance, a State may note in its regional haze SIP that its compliance
with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51, subpart
A satisfies the requirement to provide for an emissions inventory for
the most recent year for which data are available. To satisfy the
requirement to provide estimates of future projected emissions, a State
may explain in its SIP how projected emissions were developed for use
in establishing RPGs for its own and nearby Class I areas.\29\
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\28\ See ``Step 8: Additional requirements for regional haze
SIPs'' in 2019 Regional Haze Guidance at 55.
\29\ Id.
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Separate from the requirements related to monitoring for regional
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a
requirement at 40 CFR 51.308(f)(4) related to any additional monitoring
that may be needed to address visibility impairment in Class I areas
from a single source or a small group of sources. This is called
``reasonably attributable visibility impairment.'' \30\ Under this
provision, if the EPA or the FLM of an affected Class I area has
advised a State that additional monitoring is needed to assess
reasonably attributable visibility impairment, the State must include
in its SIP revision for the second implementation period an appropriate
strategy for evaluating such impairment.
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\30\ EPA's visibility protection regulations define ``reasonably
attributable visibility impairment'' as ``visibility impairment that
is caused by the emission of air pollutants from one, or a small
number of sources.'' 40 CFR 51.301.
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F. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires a State's regional haze SIP revision
to address the requirements of 40 CFR 51.308(g)(1) through (5) so that
the plan revision due in 2021 will serve also as a progress report
addressing the period since submission of the progress report for the
first implementation period. The regional haze progress report
requirement is designed to inform the public and the EPA about a
State's implementation of its existing long-term strategy and whether
such implementation is in fact resulting in the expected visibility
improvement. See 81 FR 26942, 26950 (May 4, 2016), (82 FR 3078 at 3119,
January 10, 2017). To this end, every State's SIP revision for the
second implementation period is required to describe the status of
implementation of all measures included in the State's long-term
strategy, including BART and reasonable progress emission reduction
measures from the first implementation period, and the resulting
emissions reductions. 40 CFR 51.308(g)(1) and (2).
A core component of the progress report requirements is an
assessment of changes in visibility conditions on the clearest and most
impaired days. For second implementation period progress reports, 40
CFR 51.308(g)(3) requires States with Class I areas within their
borders to first determine current visibility conditions for each area
on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i)(B), and
then to calculate the difference between those current conditions and
baseline (2000-2004) visibility conditions in order to assess progress
made to date. See 40 CFR 51.308(g)(3)(ii)(B). States must also assess
the changes in visibility impairment for the most impaired and clearest
days since they submitted their first implementation period progress
reports. See 40 CFR 51.308(g)(3)(iii)(B) and (f)(5). Since different
States submitted their first implementation period progress reports at
different times, the starting point for this assessment will vary state
by state.
Similarly, States must provide analyses tracking the change in
emissions of pollutants contributing to visibility impairment from all
sources and activities within the State over the period since they
submitted their first implementation period progress reports. See 40
CFR 51.308(f)(5) and (g)(4). Changes in emissions should be identified
by the type of source or activity. Section 51.308(g)(5) also addresses
changes in emissions since the period addressed by the previous
progress report and requires States' SIP revisions to include an
assessment of any significant changes in anthropogenic emissions within
or outside the State. This assessment must include an explanation of
whether these changes in emissions were anticipated and whether they
have limited or impeded progress in reducing emissions and improving
visibility relative to what the State projected based on its long-term
strategy for the first implementation period.
G. Requirements for State and Federal Land Manager Coordination
Clean Air Act section 169A(d) requires that before a State holds a
[[Page 6941]]
public hearing on a proposed regional haze SIP revision, it must
consult with the appropriate FLM or FLMs; pursuant to that
consultation, the State must include a summary of the FLMs' conclusions
and recommendations in the notice to the public. Consistent with this
statutory requirement, the RHR also requires that States ``provide the
[FLM] with an opportunity for consultation, in person and at a point
early enough in the State's policy analyses of its long-term strategy
emission reduction obligation so that information and recommendations
provided by the [FLM] can meaningfully inform the State's decisions on
the long-term strategy.'' 40 CFR 51.308(i)(2). Consultation that occurs
120 days prior to any public hearing or public comment opportunity will
be deemed ``early enough,'' but the RHR provides that in any event the
opportunity for consultation must be provided at least 60 days before a
public hearing or comment opportunity. This consultation must include
the opportunity for the FLMs to discuss their assessment of visibility
impairment in any Class I area and their recommendations on the
development and implementation of strategies to address such
impairment. 40 CFR 51.308(i)(2). In order for the EPA to evaluate
whether FLM consultation meeting the requirements of the RHR has
occurred, the SIP submission should include documentation of the timing
and content of such consultation. The SIP revision submitted to the EPA
must also describe how the State addressed any comments provided by the
FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide
procedures for continuing consultation between the State and FLMs
regarding the State's visibility protection program, including
development and review of SIP revisions, five-year progress reports,
and the implementation of other programs having the potential to
contribute to impairment of visibility in Class I areas. 40 CFR
51.308(i)(4).
IV. EPA's Evaluation of West Virginia's Regional Haze Submission for
the Second Implementation Period
A. Background on West Virginia's First Implementation Period SIP
Submission
West Virginia submitted its Regional Haze SIP for the first
implementation period to the EPA on June 18, 2008. The EPA issued a
limited approval and limited disapproval of West Virginia's first
implementation period Regional Haze SIP submission on March 23, 2012
(77 FR 16937) because, while West Virginia's SIP revision, as a whole,
strengthened the West Virginia SIP, deficiencies in the State's June
2008 regional haze SIP submittal arising from the remand by the U.S.
Court of Appeals for the District of Columbia (D.C. Circuit) to the EPA
of the Clean Air Interstate Rule (CAIR) necessitated a limited
disapproval of these aspects of the State's SIP submittal. The EPA
subsequently converted this limited approval/limited disapproval of
West Virginia's regional haze SIP to a full approval on September 24,
2018, (83 FR 48249) after West Virginia submitted a revision to its
Regional Haze SIP to change its reliance from CAIR to the Cross-State
Air Pollution Rule (CSAPR) for the purpose of meeting BART for regional
haze and addressing reasonable progress requirements. The requirements
for Regional Haze SIPs for the first implementation period are
contained in 40 CFR 51.308(d) and (e). Pursuant to 40 CFR 51.308(g),
West Virginia was also responsible for submitting a five-year progress
report as a SIP revision for the first implementation period, which it
did on April 30, 2013. The EPA approved the progress report into West
Virginia's SIP on June 5, 2015 (80 FR 32019).
B. West Virginia's Second Implementation Period SIP Submission and the
EPA's Evaluation
In accordance with CAA sections 169A and the RHR at 40 CFR
51.308(f), (g), and (i), on August 12, 2022, WV DEP submitted a
revision to West Virginia's SIP to address its Regional Haze
obligations for the second implementation period, which runs through
2028. West Virginia made its 2022 Regional Haze SIP submission
available for public comment on November 5, 2021. West Virginia
received and responded to public comments and included both the
comments and responses to those comments in its submission.
The following sections describe West Virginia's SIP submission.
This document also contains the EPA's evaluation of West Virginia's
submission against the applicable requirements of the CAA and RHR for
the second implementation period of the Regional Haze program.
C. Identification of Class I Areas
Section 169A(b)(2) of the CAA requires each State in which any
Class I Area is located or ``the emissions from which may reasonably be
anticipated to cause or contribute to any impairment of visibility'' in
a Class I Area to have a plan for making reasonable progress toward the
national visibility goal. The RHR implements this statutory requirement
at 40 CFR 51.308(f), which provides that each State's plan ``must
address Regional Haze in each mandatory Class I Federal Area located
within the State and in each mandatory Class I Federal Area located
outside the State that may be affected by emissions from within the
State,'' and (f)(2), which requires each State's plan to include a
long-term strategy that addresses Regional Haze in such Class I Areas.
The EPA explained in the 1999 RHR preamble that the CAA section
169A(b)(2) requirement that States submit SIPs to address visibility
impairment establishes ``an `extremely low triggering threshold' in
determining which States should submit SIPs for regional haze.'' 64 FR
35721, July 1, 1999. In concluding that each of the contiguous 48
States and the District of Columbia meet this threshold,\31\ the EPA
relied on ``a large body of evidence demonstrat[ing] that long-range
transport of fine PM contributes to regional haze,'' id., including
modeling studies that ``preliminarily demonstrated that each State not
having a Class I Area had emissions contributing to impairment in at
least one downwind Class I Area.'' Id. at 35722. In addition to the
technical evidence supporting a conclusion that each State contributes
to existing visibility impairment, the EPA also explained that the
second half of the national visibility goal--preventing future
visibility impairment--requires having a framework in place to address
future growth in visibility-impairing emissions and makes it
inappropriate to ``establish criteria for excluding States or
geographic areas from consideration as potential contributors to
regional haze visibility impairment.'' Id. at 35721. Thus, the EPA
concluded that the agency's ``statutory authority and the scientific
evidence are sufficient to require all States to develop regional haze
SIPs to ensure the prevention of any future impairment of visibility,
and to conduct further analyses to determine whether additional control
measures are needed to ensure reasonable progress in remedying existing
impairment in downwind Class I Areas.'' Id. at 35722. The EPA's 2017
revisions to the RHR did not disturb this conclusion. See 82 FR 3094.
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\31\ The EPA determined that ``there is more than sufficient
evidence to support our conclusion that emissions from each of the
48 contiguous states and the District of Columba may reasonably be
anticipated to cause or contribute to visibility impairment in a
Class I Area.'' 64 FR 35721, July 1, 1999 . Hawaii, Alaska, and the
U.S. Virgin Islands must also submit Regional Haze SIPs because they
contain Class I Areas.
---------------------------------------------------------------------------
To address 40 CFR 51.308(f), WV DEP identified Class I areas within
West
[[Page 6942]]
Virginia and out-of-state Class I areas downwind of West Virginia that
were affected by West Virginia statewide emissions of visibility
impairing pollutants. West Virginia has two mandatory Class I areas
within its borders: Dolly Sods Wilderness Area (Dolly Sods) and Otter
Creek Wilderness Area (Otter Creek). Out-of-state Class I Areas
affected by West Virginia included Acadia National Park (Maine), James
River Face Wilderness Area (Virginia), Lye Brook Wilderness Area
(Vermont), Moosehorn Wilderness Area (Maine), Roosevelt Campobello
International Park (Maine/New Brunswick), Shenandoah National Park
(Virginia), and Swanquarter Wilderness Area (North Carolina).
West Virginia, like other VISTAS States, implemented a two-step
process to select sources contributing to visibility impairment in
Class I areas within and outside the State. West Virginia presented the
results of Particulate Matter Source Apportionment Technology (PSAT)
\32\ modeling that VISTAS conducted to estimate the projected impact of
statewide SO<INF>2</INF> and NO<INF>X</INF> emissions across all
emissions sectors in 2028 on total light extinction for the 20 percent
most impaired days in all Class I areas in the VISTAS modeling
domain.\33\ PSAT results were used to calculate the percent
contribution of each tagged facility to the total sulfate and nitrate
point source (EGU + non-EGU) contribution at each Class I area; more
details of the PSAT analysis can be found in Appendix E-7b of WV DEP's
SIP submittal. West Virginia also relied on facility-level
SO<INF>2</INF> and NO<INF>X</INF> Area of Influence (AOI) analyses \34\
for each Class I area to assess relative visibility impacts from each
facility.\35\
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\32\ PSAT is Particulate Matter Source Apportionment Technology,
which is an option in the photochemical visibility impact modeling
performed by VISTAS that is a methodology to track the fate of both
primary and secondary PM. PSAT allows emissions to be tracked
(``tagged'') for individual facilities as well as various
combinations of sectors and geographic areas (e.g., by state). The
PSAT results provide the modeled contribution of each of the tagged
sources or groups of sources to the total visibility impacts.
\33\ West Virginia did not include primary PM (directly emitted)
data in this analysis because the PSAT analyses performed by VISTAS
tagged statewide emissions of SO<INF>2</INF> and NO<INF>X</INF> and
did not tag primary total PM emissions in the analysis after
concluding that emissions of the PM precursors SO<INF>2</INF> and
NO<INF>X</INF>, particularly from point sources, are projected to
have the largest impact on visibility impairment in 2028 and that
SO<INF>2</INF> and NO<INF>X</INF> are the most significant
visibility impairing pollutants from controllable anthropogenic
sources.
\34\ States often use an AOI analysis to help identify the areas
and sources most likely contributing to poor visibility in Class I
areas. The AOI analysis involves running a backward trajectory model
to determine the origin of the air parcels affecting visibility,
which is then combined with emissions data to determine the sources
or source sectors most likely contributing to pollutant emissions.
For more information on AOI analyses, see Appendix D of WV DEP's
Regional Haze SIP Submittal for the 2nd Planning Period.
\35\ See Section 7.5, ``Area of Influence Analyses for West
Virginia Class I Areas'' of WV DEP's Regional Haze SIP Submittal for
the 2nd Planning Period.
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WV DEP concluded that sources and emissions within the State
contribute to visibility impairment at seven out-of-state Class I Areas
and took part in the emission control strategy consultation process as
a member of VISTAS. WV DEP also included analyses of visibility
impairing pollutant emissions and visibility impacts from other RPOs
and States, and their impact on Class I Areas within VISTAS.\36\ From
these analyses, WV DEP concluded that ``sulfate will generally be a
much larger contributor to visibility impairment in 2028 at VISTAS
mandatory Federal Class I areas than nitrates'' and, that ``emissions
from other planning organizations . . . generally have higher
contributions to 2028 visibility impairment at mandatory Federal Class
I areas in VISTAS than the emissions from the home State.'' \37\ As
stated previously, the threshold for visibility impact on Class I Areas
is low. Therefore, a supposedly small visibility impact on any of the
Class I Areas identified by WV DEP as being impacted by its emissions
is sufficient to trigger the regional haze requirements to evaluate
sources for control measures considering the four factors.
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\36\ See Section 7.2.3, ``Projected VISTAS 2028 Emissions
Inventory'', Section 7.2.5, ``2028 Visibility Projection Results'',
and Section 7.4, ``Relative Contributions to Visibility Impairment:
Pollutants, Source Categories, and Geographic Areas'' of WV DEP's
Regional Haze SIP Submittal for the 2nd Planning Period.
\37\ See Section 7.4, ``Relative Contributions to Visibility
Impairment: Pollutants, Source Categories, and Geographic Areas'' of
WV DEP's Regional Haze SIP Submittal for the 2nd Planning Period.
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D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
Section 51.308(f)(1) requires states to determine the following for
``each mandatory Class I Federal Area located within the State'':
baseline visibility conditions for the most impaired and clearest days,
natural visibility conditions for the most impaired and clearest days,
progress to date for the most impaired and clearest days, the
differences between current visibility conditions and natural
visibility conditions, and the URP. This section also provides the
option for States to propose adjustments to the URP line for a Class I
Area to account for visibility impacts from anthropogenic sources
outside the United States and/or the impacts from wildland prescribed
fires that were conducted for certain, specified objectives. 40 CFR
51.308(f)(1)(vi)(B). WV DEP included this information in sections 2, 3,
and 7 of its Regional Haze SIP submittal for the second planning
period.
In its submittal, WV DEP determines and presents the baseline,
natural, and current visibility conditions as well as the differences
between these for the 20 percent most anthropogenically impaired days
and the 20 percent clearest days for the State's two Class I Areas, as
required by the RHR. Specifically, WV DEP included the baseline
visibility conditions (2000-2004) in table 2-3, current visibility
conditions (2014-2018) in table 2-5, and natural visibility conditions
in table 2-2 for the 20 percent clearest and 20 percent most impaired
days in each VISTAS Class I area in deciviews, including those in West
Virginia. WV DEP also included the actual progress made in deciviews
toward natural visibility conditions to date since the baseline period
(current minus baseline), and the additional progress needed to reach
natural visibility conditions from current conditions (natural minus
current) in table 2-6 (for the 20 percent most impaired days) and table
2-7 (for the 20 percent clearest days) for VISTAS Class I areas,
including those in West Virginia.
Additionally, Figure 3-1 of WV DEP's submittal provides the URP
glide path for the 20 percent most impaired days for Dolly Sods. The
URP shown in Figure 3-1 for Dolly Sods is considered representative of
Otter Creek.\38\ The URPs were developed by the State using EPA
guidance \39\ and used data collected from the IMPROVE monitoring
sites.
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\38\ Otter Creek has no IMPROVE monitor. Visibility at Otter
Creek is assumed to be the same as the nearest Class I area monitor
located at Dolly Sods.
\39\ <a href="http://www.epa.gov/sites/default/files/2018-12/documents/technical_guidance_tracking_visibility_progress.pdf">www.epa.gov/sites/default/files/2018-12/documents/technical_guidance_tracking_visibility_progress.pdf</a> and <a href="https://www.epa.gov/sites/default/files/2020-06/documents/memo_data_for_regional_haze_technical_addendum.pdf">https://www.epa.gov/sites/default/files/2020-06/documents/memo_data_for_regional_haze_technical_addendum.pdf</a>.
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However, as set forth later in this NPRM, because the EPA is
proposing to disapprove West Virginia's Regional Haze plan for the
second planning period due to deficiencies in the overall submittal,
the EPA takes no position on whether the analysis described in section
D meets the requirements of the Clean Air Act.
[[Page 6943]]
E. Long-Term Strategy for Regional Haze
Each State having a Class I Area within its borders or emissions
that may affect visibility in a Class I Area must develop a long-term
strategy for making reasonable progress towards the national visibility
goal. CAA section 169A(b)(2)(B). As explained in the Background section
of this document, reasonable progress is achieved when all States
contributing to visibility impairment in a Class I Area are
implementing the measures determined--through application of the four
statutory factors to sources of visibility impairing pollutants--to be
necessary to make reasonable progress. 40 CFR 51.308(f)(2)(i). Each
State's long-term strategy must include the enforceable emission
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress. 40 CFR 51.308(f)(2). All new
(i.e., additional) measures that are the outcome of four-factor
analyses are necessary to make reasonable progress and must be in the
long-term strategy. If the outcome of a four-factor analysis and other
measures necessary to make reasonable progress is that no new measures
are reasonable for a source, that source's existing measures are
necessary to make reasonable progress, unless the State can demonstrate
that the source will continue to implement those measures and will not
increase its emission rate. Existing measures that are necessary to
make reasonable progress must also be in the long-term strategy. In
developing its long-term strategy, a State must also consider the five
additional factors in 40 CFR 51.308(f)(2)(iv). As part of its
reasonable progress determinations, the State must describe the
criteria used to determine which sources or group of sources were
evaluated (i.e., subjected to four-factor analysis) for the second
implementation period and how the four factors were taken into
consideration in selecting the emission reduction measures for
inclusion in the long-term strategy. 40 CFR 51.308(f)(2)(iii).
1. Source Selection
To determine the necessary emission reductions measures, a State
must first select the sources to evaluate. As stated in the Background
section of this document, source selection should focus on the in-state
contribution to visibility impairment and be designed to capture a
meaningful portion of the State's total contribution to visibility
impairment in Class I areas. WV DEP included information on the
emissions impacts from numerous sources within the State on various
Class I Areas. Section 7.6.1, Table 7-17 of the WV DEP submittal lists
the facilities selected for PSAT tagging in Virginia and West Virginia
based on an AOI visibility contribution of 0.2% or more which include
thirteen facilities located in West Virginia.\40\ West Virginia then
decided not to select eight of those facilities for analysis of
reasonable progress measures or controls.\41\ The State considered a
percent contribution of greater than or equal to 1.00% (individual
facility contribution divided by the total sulfate and nitrate
contributions from EGU + non-EGU point sources) to determine whether to
select a facility for a reasonable progress analysis. West Virginia
excluded seven of the eight unselected facilities in part based on a
PSAT modeling result of <1.00% as well as various factors through a
qualitative weight-of-the evidence approach.\42\ The remaining of the
unselected facilities, Grant Town Plant,\43\ had a PSAT modeling result
of >=1.00% which WV DEP claimed could be scaled down to <1.00%
contribution to Dolly Sods based on recent emissions data.\44\ WV DEP
also included discussion as to why no reasonable progress analysis is
warranted for Mountaineer Plant, a ninth facility that was not tagged
for PSAT modeling.\45\
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\40\ Allegheny Energy Supply Co, LLC--Harrison; American
Bituminous Power--Grant Town Plant; Appalachian Power Company--John
E. Amos Plant; Dominion Resources, Inc.--Mount Storm Power Station;
Equitrans--Copley Run CS 70; Files Creek; Glady; Kingsford
Manufacturing Company; Longview Power; Mitchell Plant; Monongahela
Power Co.--Fort Martin Power; Monongahela Power Co.--Pleasants Power
Station; Morgantown Energy Associates.
\41\ See section 7.6.4, ``Selection of Sources for Reasonable
Progress Evaluation'' of WV DEP's Regional Haze SIP submittal for
the 2nd Planning Period (``section 7.6.4'' or ``section 7.6.4 of the
SIP submittal'').
\42\ Id.
\43\ West Virginia refers to this facility as ``Grant Town
Plant'' as well as ``Grant Town Power Plant'' in the SIP submittal.
\44\ Id. at 182 of 257.
\45\ Id. at 187 of 257. West Virginia's SIP submittal provided
scant explanation for Mountaineer's inclusion in this group of
facilities. West Virginia might have included Mountaineer because
the EPA's January 5, 2022 comments submitted during the public
comment period asked for ``further explanation of why the 4th
largest SO<INF>2</INF> source in the state was not selected for a 4-
factor analysis . . . .'' Appendix H-4 ``West Virginia Department of
Environmental Protection Division of Air Quality Responses to EPA
Region 3 Comments on the West Virginia Draft Regional Haze State
Implementation Plan August 2022,'' section. 6.e.
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After excluding eight of the thirteen facilities selected for PSAT
tagging--along with Mountaineer Plant, which had not been selected for
PSAT--West Virginia then selected the remaining five facilities:
Harrison Power Station; Fort Martin Power Station; Pleasants Power
Station; Mitchell Plant; and the John E. Amos Plant, to perform a four-
factor analysis.\46\ WV DEP also included in its reasonable progress
discussion at section 7.8 of the SIP submittal a sixth facility--Grant
Town Plant--which was initially included among the eight facilities for
which WV DEP explained that no reasonable progress analysis was
warranted.\47\ Although the State then selected Grant Town Plant for a
reasonable progress evaluation, it did not contact the facility to
request such analysis giving as the reason, ``the facility is already
subject to a federally enforceable Title V permit (R30-04900026-2020)
that limits SO<INF>2</INF> emissions to less than the quantity
projected to exceed the 1.00% visibility threshold of the VISTAS PSAT
modeling.'' \48\ Below in this document, when discussing reasonable
progress and the facilities included in section 7.8 of the SIP
submittal, the EPA refers to the group selected for reasonable progress
analysis as ``five facilities plus Grant Town Plant'' or ``six
facilities'' for ease of reference, even though it is somewhat unclear
whether WV DEP's discussion of Grant Town Plant in section 7.8 of the
SIP submittal is meant to be a reasonable progress analysis.\49\
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\46\ See section 7.8, ``Reasonable Progress for Individual
Sources to be Included in the Long-Term Strategy'', of WV DEP's
Regional Haze SIP submittal for the 2nd Planning Period (``section
7.8'' or ``section 7.8 of the SIP submittal'').
\47\ Id. and section 7.6.4 of the SIP submittal.
\48\ Section 7.8 of the SIP submittal at 197 of 257.
\49\ West Virginia does not clearly explain why it included
Grant Town Plant in the section 7.8 reasonable progress discussion
after it already claimed that Grant Town Plant should be excluded
from four-factor analysis and reasonable progress analysis in the
section 7.6.4 source selection discussion whittling down the larger
group of thirteen facilities tagged for PSAT modeling.
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Section 7.6.2, Table 7-19 of the SIP submittal contains PSAT
results for the Dolly Sods Area, which includes fifteen facilities
where sulfate contributions are >=1.00% and addresses nearly 36.5% of
the entire sulfate plus nitrate point source visibility impact in 2028;
six of these fifteen facilities are located in West Virginia.\50\ Table
7-20 contains PSAT results for the Otter Creek Wilderness Area, which
includes fourteen facilities where sulfate contributions are >=1.00%
and addresses more than 34.7% of the entire sulfate plus nitrate point
source visibility impact in 2028; five of these fourteen
[[Page 6944]]
facilities are located in West Virginia.\51\ The West Virginia
facilities listed in tables 7-19 and 7-20 are the same as the five
facilities plus Grant Town Plant in section 7.8 of the SIP submittal.
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\50\ Allegheny Energy Supply Co, LLC--Harrison; Monongahela
Power Co--Pleasants Power Station; Kentucky Power Company--Mitchell
Plant; Appalachian Power Company--John E. Amos Plant; Monongahela
Power Co--Fort Martin Power; and American Bituminous Power--Grant
Town Plant.
\51\ Allegheny Energy Supply Co, LLC--Harrison; Monongahela
Power Co--Pleasants Power Station; Kentucky Power Company--Mitchell
Plant; Appalachian Power Company--John E. Amos Plant; and
Monongahela Power Co--Fort Martin Power.
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Tables 7-21 through 7-27 contain the PSAT results for the five West
Virginia facilities \52\ that WV DEP selected for evaluation of
emissions control measures based on sulfate contributions of >=1.00% to
the following out-of-state Class I Areas: Acadia National Park (Maine),
James River Face Wilderness Area (Virginia), Lye Brook Wilderness Area
(Vermont), Moosehorn Wilderness Area (Maine), Roosevelt Campobello
International Park (Maine/New Brunswick), Shenandoah National Park
(Virginia), and Swanquarter Wilderness Area (North Carolina),
respectively.
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\52\ Allegheny Energy Supply Co, LLC--Harrison; Monongahela
Power Co--Pleasants Power Station; Kentucky Power Company--Mitchell
Plant; Appalachian Power Company--John E. Amos Plant; and
Monongahela Power Co--Fort Martin Power.
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Further, WV DEP States that (1) the Allegheny Energy Supply Co
LLC--Harrison facility \53\ affects eight Class I areas; (2)
Monongahela Power Co.--Pleasants Power Station impacts six Class I
areas; (3) Mitchell Plant impacts four Class I areas; (4) Monongahela
Power Co.--Fort Martin Power impacts three Class I areas; (5)
Appalachian Power Company--John E. Amos Plant impacts three Class I
areas; and (6) American Bituminous Power--Grant Town Plant impacts one
Class I area. The full list of tagged facilities and their
contributions to each Class I area can be found in Appendix E-7b of the
SIP submittal. Thus, WV DEP ultimately identifies six West Virginia
facilities as contributing to visibility impairment in at least one
Class I Area, and five of these facilities as contributing to
visibility impairment in multiple Class I Areas.<SUP>54 55</SUP>
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\53\ WV DEP sometimes refers to this facility as Monongahela
Power Company--Harrison Power Station, with a Facility ID of 54033-
6271711. This is the same Facility ID used for Allegheny Energy
Supply Co LLC--Harrison.
\54\ See Section 7.6.2, ``PSAT Contributions at West Virginia
Class I Areas'' and Section 7.6.3, ``AoI versus PSAT Contributions''
of WV DEP's Regional Haze SIP submittal for the 2nd Planning Period.
\55\ In its submittal, and as described in IV.E.2. of this
document, West Virginia eventually ruled out additional and existing
emission reduction measures as being necessary for reasonable
progress for five of these sources, without conducting a full
analysis of the four statutory factors of CAA 169A(g)(1) and 40 CFR
51.308(f)(2). However, for the sixth facility, Pleasants Power,
which conducted a documented four-factor analysis, West Virginia did
not reasonably justify its reliance on the four factors to rule out
additional and existing emissions reductions measures that could be
necessary for reasonable progress. See sections 7.6.4 and 7.8 of the
SIP submittal.
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While the RHR does not explicitly list factors that a State must or
may not consider when selecting the sources for which it will determine
what control measures are necessary to make reasonable progress, a
State opting to select a set of its sources to analyze must reasonably
choose factors and apply them in a reasonable way given the statutory
requirement to make reasonable progress towards natural visibility.\56\
The 2019 Guidance provides examples of criteria a State may consider to
select sources for analysis of emission control measures \57\ none of
which align with the types of information that West Virginia provided
as justification. Given that WV DEP already performed quantitative PSAT
and AOI modeling for these sources, confirming their contribution to
visibility impairment at multiple in-state and out-of-state Class I
areas, it is not clear based on the record presented why it is
appropriate for WV DEP to rely on a qualitative weight-of-evidence
reasoning, such as general claims about topography and stack height, to
exclude these impacting sources from analysis under the four factors,
which is what WV DEP did for eight of the thirteen facilities tagged
for PSAT analysis.
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\56\ 2019 Guidance at 10.
\57\ Id. (``Factors could include but are not limited to
baseline source emissions, baseline source visibility impacts (or a
surrogate metric for the impacts), the in-place emission control
measures and by implication the emission reductions that are
possible to achieve at the source through additional measures, the
four statutory factors (to the extent they have been characterized
at this point in SIP development), potential visibility benefits
(also to the extent they have been characterized at this point in
SIP development), and the five additional required factors listed in
40 CFR 51.308(f)(2)(iv).'')
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2. Four-Factor Analysis and Reasonable Progress Analysis
For five of the six facilities discussed in section 7.8 of the SIP
submittal, WV DEP requested that each of the facilities perform four-
factor analyses to evaluate measures necessary for reasonable
progress.\58\ Four of these five facilities declined to provide four-
factor analyses and instead claimed that such analyses were unnecessary
for various reasons.\59\ It is unclear whether WV DEP relied on the
justifications provided by these four facilities, though WV DEP never
performed its own full four-factor analysis for any of those four
facilities. Only one of the five facilities--Pleasants Power Station--
provided to WV DEP an engineering consultant's report titled ``Regional
Haze Four-Factor SO<INF>2</INF> Analysis.'' \60\ WV DEP included the
facilities' explanations in the SIP submittal at section 7.8, and
related appendices. The sixth facility discussed in section 7.8 is
Grant Town Plant \61\ even though WV DEP did not request from the
facility a reasonable progress or four-factor analysis for Grant Town
Plant because WV DEP did not believe such an analysis was
warranted.\62\ WV DEP then included tables of its own cost estimates
\63\ for scrubber replacement at six facilities--the five facilities
plus Grant Town Plant--which this document discusses at section
IV.E.2.c. of this document. However, as we discuss in section IV.E.2.c.
of this document, these cost estimates were deficient and
insufficiently documented.
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\58\ Section 7.8 of the SIP submittal at 196 of 257.
\59\ Id. at 197-99, 201-02 of 257.
\60\ Appendix G-2 to the WV DEP's Regional Haze SIP Submittal
for the 2nd Planning Period at G-2d ``Response Letter from Energy
Harbor (Pleasants Station).''
\61\ Section 7.8 of the SIP submittal at 197-98 of 257.
\62\ See Section 7.6.4 of the SIP submittal at 182 of 257.
\63\ Section 7.8, Table 7-37 ``Estimated FGD replacement costs
per facility, based on a 20-year remaining life expectancy,'' and
Table 7-38, ``Estimated FGD replacement costs per unit'', SIP
submittal at 203-05 of 257.
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a. Harrison Power Station, Grant Town Power Plant, Fort Martin Power
Station, Mitchell Power Plant, and John E. Amos Power Plant
In Section 7.8, WV DEP lists a variety of reasons four of the
selected facilities (Harrison Power Station, Fort Martin Power Station,
Mitchell Power Plant, and John E. Amos Power Plant) provided for not
performing a four-factor analysis. In the SIP submittal, WV DEP does
not explicitly state that it is adopting the four facilities' reasons
as its own, but WV DEP reiterates the facilities' reasons in detail and
does not disavow their explanations. To the extent that WV DEP relied
on this information in developing its long-term strategy, it did not
analyze or evaluate the information provided by the facilities and did
not adequately explain how such information was or was not being used
to support WV DEP's decision not to require a full four-factor analysis
of these facilities. Although it is unclear whether WV DEP is relying
on the four facilities' rationales, the EPA addresses them in this
NPRM. WV DEP also provided its own reasons why Grant Town Plant, which
it did not request to perform a four-factor analysis but included in
the reasonable progress discussion, should not be required to impose
any additional measures.
[[Page 6945]]
For Harrison Power Station, WV DEP stated in its SIP submittal \64\
that, when asked for a reasonable progress analysis, facility owner/
operator Monongahela Power Company (MonPower) ``stated neither a formal
SO<INF>2</INF> controls four-factor analysis nor an SO<INF>2</INF>
permit limit were necessary or appropriate for Harrison for regional
haze purposes for multiple reasons.'' These reasons included claims by
MonPower that ``visibility impacts from the facility are presently well
below the URP glide paths, proving already implemented past measures
have been and continue to be successful''; that ``Harrison FGD systems
demonstrated a 97.1% average removal efficiency for 2017 through 2019,
which exceeds the 95% control deemed as BART by EPA''; and that
``Harrison averaged 0.16 pounds per mmBtu SO<INF>2</INF> emissions from
2015 through 2020 [which] is in compliance with the 0.2 pounds per
mmBtu SO<INF>2</INF> emission limit of the MATS rule for coal-fired
EGUs, which the company claims is adequate to meet the exemption
outlined in the EPA's August 20, 2019 Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period. . . .'' \65\
MonPower further claims that ``Harrison is subject to and meets the
limits of the CSAPR FIP, and EPA and the courts have previously
determined CSAPR is better than BART.''
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\64\ Section 7.8 of the SIP submittal at 197 of 257.
\65\ mmBtu, also sometimes written as MMBTU or MMBtu, refers to
one million British thermal units of heat input.
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For Grant Town Plant, WV DEP stated in its SIP submittal \66\ that
because ``the facility is already subject to a federally enforceable
Title V permit (R30-04900026-2020) that limits SO<INF>2</INF> emissions
to less than the quantity projected to exceed the 1.00% visibility
threshold of the VISTAS PSAT modeling, it was determined that a
reasonable progress analysis or a four-factor analysis request for
Grant Town Plant was not warranted'' and that ``Grant Town maintains
adequate SO<INF>2</INF> emissions credits from CAMD for its
SO<INF>2</INF> emissions, and the facility is subject to the CSAPR
SO<INF>2</INF> budget.'' WV DEP also claimed that the remaining
lifespan of Grant Town Power Plant is thirteen years, or until
2035,\67\ when the power purchase agreement for the facility expires,
and that WV DEP does not anticipate that this power purchase agreement
will be extended. WV DEP therefore concludes ``additional
SO<INF>2</INF> controls would not be economically feasible for such a
small and unique facility with a looming anticipated retirement date.''
\68\ Because of the reasons previously stated, WV DEP decided to not
request a four-factor analysis from Grant Town Power Plant.\69\
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\66\ Section 7.8 of the SIP submittal at 197-98 of 257.
\67\ West Virginia states that the remaining lifespan of Grant
Town Plant lasts until 2035 at page 206 of the SIP submittal and
2036 at page 198 of the SIP submittal.
\68\ Table 7-38 of the SIP submittal at 205 of 257.
\69\ Section 7.8 of the SIP submittal at 197.
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For Fort Martin Power Station, WV DEP included in its SIP submittal
\70\ the same claims that MonPower relied on for screening out Harrison
Power Station from additional analysis, except that MonPower stated
that ``Fort Martin averaged 0.11 pounds per mmBtu SO<INF>2</INF>
emissions from 2015 through 2020.'' WV DEP also claimed that the
remaining lifespan of Fort Martin Power Station is expected to be four
years, or 2026, when WV DEP expects ``the proposed Good Neighbor CSAPR
FIP would require the facility to install SCR for NOx control'' and
that WV DEP does not expect the facility's owner/operator to do so.\71\
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\70\ Id. at 198-99 of 257.
\71\ Table 7-38, SIP submittal at 205 of 257, and ``Cost
Estimates for Scrubber Replacement at Facilities Selected for Four
Factor Analyses'' at 206 of 257.
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For Mitchell Power Plant, WV DEP stated in its SIP submittal \72\
that, when asked for a reasonable progress analysis, facility owner/
operator Kentucky Power Company (KPCo), a subsidiary of American
Electric Power (AEP), responded that ``Mitchell emissions were well
ahead of the uniform rate of progress goals to natural background
visibility''; that ``continuing emissions reductions and retirements of
coal-fired EGUs within the eastern United States, including within the
AEP system, would provide for continuing progress within the planning
period without the need for additional SO<INF>2</INF> emissions
reductions from Mitchell''; that ``Mitchell already employs the most
effective type of SO<INF>2</INF> controls available, which are designed
to achieve a minimum of 98% emissions reduction''; that ``first CAIR
and then CSAPR were previously determined by EPA to be better than
BART, and Mitchell is in compliance with the CSAPR emissions trading
program''; that ``Mitchell has always achieved the 0.2 pounds
SO<INF>2</INF> per million Btu limit implemented by the MATS rule as a
surrogate compliance emission limit, often by less than half this
amount on an annual basis''; and that ``EPA's own guidance States
sources which were selected for analysis in the first planning period,
and which installed BART controls could be excluded from analysis for
the second planning period.'' Based on these claims, KPCo concluded
that no further evaluation of Mitchell nor additional SO<INF>2</INF>
controls are necessary.
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\72\ Section 7.8 of the SIP submittal at 201 of 257.
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For John E. Amos Power Plant, WV DEP stated in its SIP submittal
\73\ that, when asked for a reasonable progress analysis, facility
owner/operator Appalachian Power Company (APCo), stated that ``Amos
emissions were well ahead of the uniform rate of progress goals to
natural background visibility''; that continuing emissions reductions
and retirements of coal-fired EGUs within the eastern United States,
including within the AEP system, would provide for continuing progress
within the planning period without the need for additional
SO<INF>2</INF> emissions reductions from Amos''; that ``Amos already
employs the most effective type of SO<INF>2</INF> controls available,
which are designed to achieve a minimum of 98% emissions reduction'';
that ``first CAIR and then CSAPR were previously determined by EPA to
be better than BART, and Amos complies with the CSAPR emissions trading
program''; that ``Amos has always achieved the 0.2 pounds
SO<INF>2</INF> per million Btu limit implemented by the MATS rule as a
surrogate compliance emission limit, often by well less than half this
amount on an annual basis''; and that ``EPA's own guidance States
sources which were selected for analysis in the first planning period,
and which installed BART controls could be excluded from analysis for
the second planning period.'' Based on these claims, APCo concluded
that no further evaluation of Amos nor additional SO<INF>2</INF>
controls are necessary.
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\73\ Section 7.8 of the SIP submittal at 201-02 of 257.
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WV DEP's rejection of reasonable progress measures for Harrison
Power Station, Grant Town Plant, Fort Martin Power Station, Mitchell
Power Plant, and John E. Amos Power Plant is not based on consideration
of the mandatory four factors and instead appears to be based, at least
in part, on the facility owners' contention that these facilities are
effectively controlled via existing measures,\74\ as described in
[[Page 6946]]
the August 2019 Guidance.\75\ However, if the outcome of a four-factor
analysis is that no new measures are reasonable for a source, the EPA
has interpreted the statute and the RHR to require that the source's
existing measures are needed to prevent future visibility impairment
(i.e., to prevent future emission increases) and thus necessary to make
reasonable progress.\76\ If existing controls are determined to be
necessary to make reasonable progress the existing controls must be
incorporated into the SIP and made federally enforceable and permanent
within the long-term strategy.\77\ Furthermore, if a State does not
find its existing measures necessary for reasonable progress, a State
must submit a demonstration within its submittal supporting its
rationale.\78\ However, WV DEP did not provide any demonstration
assessing the necessity of existing measures for reasonable progress;
did not provide documentation for any specific existing measures such
as permits, emissions limitations, or consent decrees; did not identify
any existing controls to be included in the long-term strategy for the
second planning period; and in the event the State found its existing
controls unnecessary for reasonable progress, did not provide a
demonstration supporting such a statement.\79\ WV DEP also cites
anticipated source retirements, i.e., shutdowns (for example, Fort
Martin by 2026) as reasons for not requiring new measures on screened-
in sources as a result of reasonable progress analyses.\80\ WV DEP also
states that its estimated expected visibility improvements in its two
Class I areas will be achieved via proposed or past shutdowns.\81\
However, while WV DEP provides information regarding anticipated and
prior shutdowns within its submittal, it also states that it
``considers all shuttered facilities which emit air pollution as
necessary for reasonable progress towards the goal of minimizing
anthropogenic visibility impairment at Class I areas.'' \82\
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\74\ Section 7.8 of the SIP submittal at 196-202 of 257. It is
unclear if West Virginia is adopting the rationales of these
facilities to justify not requiring these facilities to conduct the
four-factor analysis West Virginia requested, or whether West
Virginia's justification for not requiring a four-factor analysis is
based solely on what it describes as West Virginia's own ``cost
analyses for replacing the BART SO<INF>2</INF> controls at the six
selected facilities with limestone forced oxidation (LFSO)
scrubbers, assuming a 98% average reduction for the hypothetical new
scrubbers.'' SIP Submittal at 202 of 257. EPA has addressed in this
NPRM the issues raised by the facilities to the extent they may have
been relied upon by West Virginia.
\75\ See August 2019 Guidance at 22-25.
\76\ Section 4 of the 2021 Clarifications Memo, pages 8-9. See
also CAA 169A(b)(2); 40 CFR 51.308(f)(2).
\77\ Section 4 of the 2021 Clarifications Memo. See also CAA
169A(b)(2); 40 CFR 51.308(f)(2). Additionally, consistent with our
proposed partial disapproval of Arizona's Haze Plan (see 89 FR
47398, May 31, 2024), if a state determines no new measures are
necessary for reasonable progress, the must then determine whether a
source's existing measures are necessary for reasonable progress.
EPA finalized partial disapproval of Arizona's Haze Plan on December
18, 2024 (see 89 FR 102744).
\78\ Consistent with our proposed partial disapproval for
Wyoming's Haze Plan (see 89 FR 63030, August 1, 2024), to the extent
a state finds its existing measures are not necessary for reasonable
progress, a state must provide a demonstration supporting their
claim. EPA finalized partial disapproval of Wyoming's Haze Plan on
December 2, 2024 (see 89 FR 95121). See also 2019 Guidance at 22-25.
\79\ EPA is not stating that all existing measures are required
to be in the SIP. As we acknowledged in the 2021 Clarifications
Memo, ``there may be circumstances in which a source's existing
measures are not necessary to make reasonable progress.'' However,
EPA would expect that if a state believed that existing measure are
not necessary for reasonable progress for the second planning period
the state would ``demonstrate that a source will continue to
implement its existing measures and will not increase its emission
rate, it may not be necessary to require those measures under the
regional haze program in order to prevent future emission
increases.'' 2021 Clarifications Memo at 9. WVDEP provided no
demonstration or explanation of its decision not to evaluate
existing controls for these sources.
\80\ ``Cost Estimates for Scrubber Replacement at Facilities
Selected for Four Factor Analyses'' at 206 of 257 of the SIP
submittal. Note also that as part of source selection West Virginia
gives as a reason for not choosing Morgantown Energy Associates
facility for reasonable progress analysis its filing of a permit
application for two boiler retirements scheduled for 2020, SIP
submittal at 184 of 257.
\81\ West Virginia states that Pleasants Power should be placed
on the deactivation list by June 1, 2023, SIP submittal 206 of 257
and uses this as the lifespan of the facility in estimating costs of
replacement controls as discussed below. West Virginia also lists a
number of past shutdowns for various West Virginia facilities in
section 7.2.2, ``State Control Programs Included in the 2028
Projection Year.''
\82\ Appendix H-4, ``West Virginia Department of Environmental
Protection Division of Air Quality Responses to EPA Region 3
Comments on the West Virginia Draft Regional Haze State
Implementation Plan August 2022,'' section 2, WV DEP's Regional Haze
SIP Submittal for the 2nd Planning Period.
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Nevertheless, WV DEP did not include the necessary documentation
(e.g., for sources that have recently retired, documentation that
demonstrates applicable sources are unable to resume operation and/or
the State has revoked the active air permits) to ensure such shutdowns
are made federally enforceable and permanent within the SIP.\83\ In
fact, WV DEP stated that ``modifying the SIP to reflect every permit
modification or facility shutdown which contributes to reasonable
progress is itself not reasonable.'' \84\ However, the RHR at 40 CFR
51.308(f)(2) and (3) requires that measures necessary for reasonable
progress must be enforceable, documented and included in the SIP. WV
DEP has not done so with respect to either existing or anticipated
source shutdowns.
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\83\ While fuel conversions are not mentioned with respect to
the six sources, West Virginia describes fuel conversions for other
facilities at section 7.2.2, ``State Control Programs Included in
the 2028 Projection Year.'' In the body of the main SIP submittal at
section 7.2.2, West Virginia neither indicates whether it is relying
on these fuel conversions as measures necessary for reasonable
progress in the second planning period nor does it include the
necessary documentation to ensure that the emission reductions
resulting from the fuel conversions are permanently and federally
enforceable. However, in Appendix H-4, section 4, in responding to
EPA comments, West Virginia discusses non-EGU industrial boilers
being replaced with natural gas units and states that it ``considers
boiler replacements at these smaller non-EGU Sources to be
reasonable progress'' and that ``[f]ederally enforceable permits
demonstrating these changes have been added to the SIP supporting
documentation.'' EPA is unable to locate these permits in the
supporting documentation appended to the SIP submittal.
\84\ Appendix H-4, section 2.
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Furthermore, WV DEP did not explain or adequately justify the
absence of existing measures for certain facilities identified in the
reasonable progress discussion within its SIP submission. WV DEP
presents information from four of the facilities in support of those
facilities' claims that four-factor analyses and SO<INF>2</INF> permit
limits are unnecessary (Harrison Power Station, Fort Martin Power
Station, Mitchell Power Plant, John E. Amos Power Plant) because they
emit at or below the Mercury and Air Toxics Standards (MATS)
SO<INF>2</INF> limits. To support its decision, WV DEP cites page 23 of
the 2019 Guidance.\85\ However, while States may rely on the use of
applicable SO<INF>2</INF> limits (such as the 0.2 lb/MMBtu MATS limit)
as being necessary for reasonable progress for the second planning
period, States must have adopted either permit conditions or State
regulations containing the SO<INF>2</INF> limit(s) for the source(s) in
question. Furthermore, the State must incorporate the applicable permit
conditions or State regulations into the State's SIP submittal to make
the conditions permanent and federally enforceable.\86\ Without
documentation confirming what SO<INF>2</INF> limits are necessary for
reasonable progress, and documentation that the four sources are
required to meet a federally enforceable and permanent permit condition
equal to the applicable MATS SO<INF>2</INF> limits, West Virginia has
not fulfilled its obligation under the CAA and RHR under 40 CFR
51.308(f)(2) to develop a long-term strategy containing enforceable
measures that are necessary to make reasonable progress in the second
planning period.
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\85\ SIP submittal at 197 and 198 of 257.
\86\ The MATS SO<INF>2</INF> limit is a limit that facilities
may use to demonstrate that they meet the HCl limit for MATS, but
facilities also have the option of directly complying with the MATS
HCl limit, and therefore are not necessarily required to meet the
MATS SO<INF>2</INF> limit unless the limit is included as a specific
permit condition.
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WV DEP presents justifications from the facilities regarding
compliance with BART control efficiencies (Harrison Power Station, Fort
Martin Power Station) and CSAPR emissions trading
[[Page 6947]]
(Grant Town Power Plant, Mitchell Power Plant, John E. Amos Power
Plant) as reasons not to conduct four-factor analyses to evaluate
additional measures that may be necessary for reasonable progress in
the second planning period. Although it may be reasonable for a State
not to select a particular source with BART-eligible units that
installed and began operating controls to meet BART emission limits for
the first implementation period on a pollutant-specific basis for
further analysis,\87\ the Regional Haze Rule at 40 CFR 51.308(e)(5)
anticipates the re-assessment of BART-eligible sources under second
planning period SIP emissions control analyses. A State might, however,
have a different, reasonable basis for not selecting such sources for
control measure analysis.\88\ To the extent that this basis applies to
the sources WV DEP selected for further analysis, West Virginia must
document this basis within its SIP submittal as required by 40 CFR
51.308(f)(2)(i) and (iii). In this case, West Virginia failed to do so.
Additionally, West Virginia's BART determination for EGUs for the
regional haze first planning period relied on CSAPR as an alternative
to source-specific BART determinations.\89\ CSAPR is a trading program
that does not impose specific emissions limitations on particular
facilities. And in fact, WV DEP did not identify any enforceable and
permanent SO<INF>2</INF> limits that apply to the selected power plants
subject to CSAPR. Therefore, in accordance with 40 CFR 51.308(e)(5), it
is not reasonable for West Virginia to exclude the selected BART-
eligible sources from consideration under the four statutory factors,
simply because they are in compliance for BART.
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\87\ 2019 Guidance at 25.
\88\ Guidance on Regional Haze State Implementation Plans for
the Second Implementation Period. <a href="http://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>. The EPA Office of Air Quality Planning and Standards,
Research Triangle Park (August 20, 2019).
\89\ 83 FR 48249 (September 24, 2018). See also see September
16, 2015 ``West Virginia State Implementation Plan Revision for
Regional Haze and Clean Air Act Sec. 110(a)(2)(D)(i)(II) for
Visibility Protection,'' <a href="http://www.regulations.gov/document/EPA-R03-OAR-2018-0217-0002">www.regulations.gov/document/EPA-R03-OAR-2018-0217-0002</a>.
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Finally, WV DEP also notes, as the facilities noted, that several
consent decrees related to currently installed SO<INF>2</INF> scrubbers
for two of the facilities identified for further evaluation in its SIP
(Mitchell Power Plant, John E. Amos Power Plant). But WV DEP does not
state whether the consent decrees impose any specific emission limits,
and does not ask for the measures required under the consent decrees
submitted to be made federally enforceable and permanent within the SIP
if there are such specific emission limits.
In conclusion, while WV DEP reiterates the facilities'
information--that there are or may be anticipated or recent source
retirements, the applicable MATS SO<INF>2</INF> emissions limits, BART
requirements, and consent decrees within its SIP submittal for five of
the sources selected for consideration under the four statutory
factors--WV DEP provides no documentation or evidence within its
submittal that it has incorporated the aforementioned existing
effective controls as federally enforceable and permanent measures to
be included in its long-term strategy for the second planning period.
Additionally, WV DEP provides no evidence of, or documentation of, an
actual long-term strategy that contains enforceable emissions
limitations that West Virginia has determined are necessary to make
reasonable progress as required by CAA 169A and the RHR, 40 CFR
51.308(f)(2).
For four of the six facilities (Harrison Power Station, Fort Martin
Power Station, John E Amos Power Plant, Mitchell Power Plant) that were
selected to determine measures necessary for reasonable progress, WV
DEP also cites information from the owners of the power plants with
reference to its progress toward achieving the URP glidepath for Dolly
Sods and Otter Creek. The facility owners cite being below the URP as
an additional reason for not providing four-factor analyses or imposing
any reasonable progress measures or controls. While it is not clear if
West Virginia is relying on any of the information provided by the
facilities, including the URP, the EPA reinforces the fact that
reliance on being at or below the URP is not a basis to forgo requiring
further analysis of emissions measures for these sources, in the 2017
RHR preamble, the EPA clearly stated that being on or below the URP is
not a ``safe harbor''; i.e., achieving the URP does not mean that a
Class I Area is making ``reasonable progress'' and does not relieve a
State from using the four statutory factors to determine the emissions
measures needed to achieve such progress.\90\ Simply being below the
URP should therefore not be used as a factor when determining what
additional controls, if any, are necessary for reasonable progress. The
URP is a planning metric used to gauge the amount of progress made thus
far and the amount left to make. Because the URP is not based on the
four statutory factors, it cannot be used to determine whether the
amount of progress made in any particular implementation period is
reasonable.\91\
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\90\ See the 2017 RHR, 82 FR 3093 and 3099, January 10, 2017.
\91\ See 2019 Guidance at 50 and 2021 Clarifications Memo at 15.
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WV DEP also indicates that SO<INF>2</INF> reductions achieved in
the first planning period for certain sources or facilities--including
Harrison Power Station, Fort Martin Power Station, Mitchell Power
Plant, and John E. Amos Power Plant--was raised by those facilities as
a justification to excuse them from having to undergo further
evaluation and a four-factor analysis.\92\ The EPA acknowledges that
West Virginia made significant reductions in SO<INF>2</INF> emissions
in the first planning period and that surrounding States and RPOs
contribute to SO<INF>2</INF> emissions in West Virginia Class I Areas.
But, to the extent that West Virginia is relying on this rationale,
neither the Regional Haze Rule nor the CAA allows a State to avoid
properly considering the four factors, in reliance on their previous
planning period reductions and/or due to emissions in other States, as
required by CAA 169A(g)(1) and the RHR, 40 CFR 51.308(f)(2).
Additionally, the EPA has advised States that a source's visibility
impact relative to a State's total contribution to visibility
impairment is relevant to ensuring that a State is addressing its own
contribution regardless of what other States are doing.\93\
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\92\ See, for example, pages 201-202 of WV DEP's Regional Haze
SIP Submittal for the 2nd Planning Period.
\93\ 2021 Clarifications Memo at 15.
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b. Pleasants Power Station
As previously discussed, WV DEP evaluated six facilities as part of
the reasonable progress analysis to determine if any potential
emissions reduction measures were necessary for reasonable progress in
the second planning period. Of these six facilities, only Pleasants
Power Station (owned and operated by Energy Harbor) submitted an
analysis utilizing the four statutory factors prescribed under CAA
169A(g)(1) and 40 CFR 51.308(f)(2)(i).\94\ The Pleasants Power Station
reasonable progress analysis considered three pre-combustion and five
post-combustion SO<INF>2</INF> emissions controls.\95\ The pre-
[[Page 6948]]
combustion control options considered were: utilization of lower sulfur
coals; fuel blending with limestone; and coal cleaning. The post-
combustion controls considered were: wet limestone scrubbers, also
known as limestone forced oxidation scrubbers (LSFO); \96\ spray dry
absorbers (SDA); dry sorbent injection (DSI); circulating dry scrubbers
with fabric filters (DS/FF); and hydrated ash reinjection (HAR).'' \97\
Based on the documentation provided within the submittal, it appears WV
DEP relied, at least in part, on the January 2021 ``Regional Haze Four-
Factor Analysis'' \98\ provided by Energy Harbor to eliminate all
potential control options, aside from LSFO, from further consideration
under the four statutory factors under the basis of technological
feasibility. However, the justifications provided by Energy Harbor as
to why it determined these control options to be infeasible are more
appropriately considered within the context of an economic analysis.
For example, Energy Harbor stated that use of lower sulfur coal is
technologically infeasible. To justify this statement, Energy Harbor
explained that use of lower sulfur coal would require facility
modifications. While those modifications would come with some
associated cost (which is not quantified or documented within the West
Virginia submittal), those modifications are not described in
sufficient detail for the EPA to be able to evaluate whether these
options are, in fact, technologically infeasible. WV DEP did not
provide any additional explanation or analysis beyond that provided by
Energy Harbor.
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\94\ The four statutory factors are the costs of compliance, the
time necessary for compliance, the energy and non-air quality
environmental impacts of compliance, and the remaining useful life
of any potentially affected anthropogenic source of visibility
impairment. See CAA 169A(g)(1) and 40 CFR 51.308(f)(2)(i).
\95\ Section 7.8 of the SIP submittal at 199 of 257.
\96\ LSFO is the correct abbreviation, though West Virginia also
uses the incorrect abbreviation LFSO multiple times in the SIP
submittal as quoted by EPA.
\97\ Section 7.8 of the SIP submittal at 199 of 257.
\98\ Appendix G-2 at G-2d ``Response Letter from Energy Harbor
(Pleasants Station),'' WV DEP's Regional Haze SIP Submittal for the
2nd Planning Period.
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Similarly, several post-combustion controls--spray dryer absorber,
dry sorbent injection, circulating dry scrubber, and hydrated ash
reinjection--were also stated to be technologically infeasible, but the
justifications are, again, primarily economic in nature.\99\ Table 1-1
of the January 2021 ``Regional Haze Four-Factor Analysis'' lists loss
of revenue from sale of recovered gypsum and the need to add a
particulate removal system and dry by-product disposal issues as the
primary reasons to reject these controls on the basis of technological
infeasibility. First, as with the pre-combustion controls, WV DEP (and
the facility) have not provided sufficient detail for the EPA to be
able to adequately evaluate whether these potential control options
were appropriately eliminated from further analysis under the four
statutory factors based on technological infeasibility. Second, while
there may be legitimate technological issues with the addition of a
particulate removal system (e.g., plant layout/space constraints), the
loss of revenue from gypsum recovery and additional waste removal costs
are economic in nature and more appropriately considered under the cost
of compliance factor. However, neither Energy Harbor, nor WV DEP,
provided sufficient evidence as to how these factors would impact the
cost of compliance for implementing these control technologies. While
the facility did provide some cost data within its submittal to the
State, neither the source nor the State provided cost calculations in
the form of dollar per ton of emissions reduced. Therefore, because
there is no detailed cost analysis documented within the SIP submittal
using an established metric such as dollar per ton, the EPA therefore
is unable to evaluate whether these controls might be available at
reasonable cost.\100\ West Virginia failed to substantiate its
determination that energy and non-air quality impacts resulting from
the installation of SO<INF>2</INF> control measures and the remaining
useful life of the units did not justify the cost of installing
SO<INF>2</INF> controls. West Virginia also failed to reasonably
quantify and consider the ``cost of compliance'' and develop a record
with respect to those costs as a basis for eliminating potential
control options, in addition to incorrectly classifying the rationale
as being based on technological infeasibility. These deficiencies
result in an inadequate consideration by West Virginia of the four
factors to eliminate possible controls for reasonable progress.
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\99\ See Appendix G-2 at G-2d section 4.2 ``Step 2: Eliminate
Technically Infeasible SO<INF>2</INF> Control Technologies'' of the
``Regional Haze Four Factor Analysis.''
\100\ The cost data provided in the WV DEP Regional Haze SIP
Submittal is presented in table 4.1.2 of the January 2021 ``Regional
Haze Four-Factor Analysis,'' in various units of $/KW, $/kw-yr, and
$/MWh. It is unclear how these values relate to EPA's recommended
metric of cost/ton of emissions reduction. It is also unclear how/if
West Virginia relied on these costs, since these controls were
deemed to be technically infeasible, rather than being too costly.
See 2019 Guidance at 31.
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With respect to LSFO, which was the single control option that was
deemed to be technologically feasible and was evaluated for cost of
compliance, WV DEP stated that Energy Harbor estimated the ``cost-
effectiveness of the LFSO (sic) system is $11,292.95 per ton, or
$9,931.94 per ton for one scrubber,'' and ``the installation time for
an LFSO (sic) system at Pleasants to be approximately 5 years with 2-3
years of plant non-operation, which is insurmountable lost revenue.''
\101\ However, neither Energy Harbor nor WV DEP has provided
documentation within the record to support these calculations and the
assertion that a two-year outage would be necessary for the
modifications.
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\101\ Section 7.8 of the SIP Submittal at 200 of 257.
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In addition to the deficient four-factor analysis, West Virginia's
submission does not meet the requirements of CAA 169A or 40 CFR
51.308(f) because it did not analyze or include federally enforceable
existing effective measures for Pleasants Power Station as necessary
measures to meet reasonable progress for the second planning period. As
we noted in our discussion with respect to West Virginia's failure to
consider existing measures for the facilities for which it ultimately
did not require a four-factor analysis, West Virginia's rejection of
new controls for Pleasants Power Station should have resulted in
consideration of whether existing measures at Pleasants Power Station
are necessary for reasonable progress.\102\ The RHR is designed to
achieve the statutory goal of ``remedying of any existing, impairment
of visibility in mandatory class I Federal areas which impairment
results from manmade air pollution,'' CAA 169A(a), through a ``long-
term strategy [that] must include the enforceable emissions
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress, as determined pursuant to [40
CFR 51.308](f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). While
existing visibility impairment is remedied by reducing emissions from
existing sources, the EPA has explained that ``[f]uture visibility
impairment is prevented by mitigating impacts from new sources and
ensuring that existing sources do not increase their emissions in a
manner inconsistent with reasonable progress.'' Therefore, ``[w]hen the
outcome of a four-factor analysis is that no new measures are
reasonable for a source, the source's existing measures are generally
needed to prevent future visibility impairment (i.e., to prevent future
emission increases) and thus necessary to make reasonable progress.
Measures that are necessary to make reasonable progress must be
included in the SIP.'' \103\ West Virginia eliminated additional
control measures with a deficient and
[[Page 6949]]
inadequately justified or documented four-factor analysis and then did
not analyze whether existing measures at Pleasants Power Station were
necessary for reasonable progress, leaving the EPA unable to determine
if the existing control measures should have been included in the long-
term strategy as required by 40 CFR 51.308(f)(2) and outlined in our
2019 Guidance at 20-22.
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\102\ See 2019 Guidance at 22-25
\103\ Section 4 of the 2021 Clarifications Memo, pages 8-9. See
also CAA 169A(b)(2); 40 CFR 51.308(f)(2).
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West Virginia also stated in its SIP submittal that ``Energy Harbor
noted the mandatory Federal Class I areas where the VISTAS PSAT
modeling predicted greater than 1.00% threshold visibility impacts from
the facility are presently well below the URP glide paths,
demonstrating already implemented past emissions reductions measures
have been and continue to be successful.'' Like the discussion in
section IV.E.2.a. of this document regarding the other five facilities,
simply being below the URP should not be used to determine what
additional controls, if any, are necessary for reasonable progress, as
the URP is only meant to gauge the amount of progress made thus far and
the amount left to make. Because the URP is not based on the four
statutory factors, it cannot be used to determine whether the amount of
progress made in any particular implementation period is
reasonable.\104\ While it is unclear as to what extent Energy Harbor
relied upon this assumption when conducting its analyses, the EPA
reiterates that the URP cannot be used to eliminate additional control
measures from consideration under a reasonable progress analysis/four
statutory factors.
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\104\ See 2019 Guidance at 50 and 2021 Clarifications Memo at
15.
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WV DEP stated that the remaining useful life of Pleasants Power
Station is one year, based on the claim that Energy Harbor placed both
units on the PJM deactivation list for deactivation by June 1,
2023.\105\ However, as of November 2024, there is no evidence as to if
this facility remains in operation or has permanently shut down, and WV
did not include any documentation with its SIP submittal to
substantiate this anticipated shutdown that would make it permanent and
federally enforceable within the SIP submittal.\106\ As explained
previously in the discussion on the other facilities selected for
reasonable progress, certain retirements/shutdowns could be considered
as part of West Virginia's long-term strategy for making progress
towards the national goal, provided that they are made permanent and
federally enforceable and are included in the SIP. However, West
Virginia has not requested that the shutdown, nor provided the
necessary documentation of the shutdown, for it to be included as a
permanent and federally enforceable measure necessary for reasonable
progress its long term strategy in the SIP. Therefore, the EPA
concludes there is nothing within WV DEP's submittal to substantiate
the use of the one year remaining useful life provided for Pleasants
Power Station.
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\105\ Section 7.8 of the SIP Submittal at 204, 206 of 257
\106\ 2019 Guidance at 34 (``In the situation of an enforceable
requirement for the source to cease operation before the end of the
useful life of the controls under consideration, a state may use the
enforceable shutdown date as the end of the remaining useful life.
To the extent such a requirement is being relied upon for a
reasonable progress determination, the measure would need to be
included in the SIP and/or be federally enforceable. See 40 CFR
51.308(f)(2).'').
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c. West Virginia's Cost Estimates and Four-Factor Analyses for
Replacing Existing SO<INF>2</INF> Controls With New LSFO Scrubbers
As previously discussed, WV DEP provided its own independent cost
estimates analyzing the replacement of existing BART SO<INF>2</INF>
controls with new LSFO scrubbers for all six facilities in section 7.8
of the SIP submittal. WV DEP stated within its submittal that LSFO ``is
considered the best technology with the highest SO<INF>2</INF> removal
efficiency of all coal and acid gas control technologies.'' \107\ In
table 7-37,\108\ WV DEP estimated the facility-wide cost per potential
ton of emission reduction based on a twenty-year remaining life
expectancy.
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\107\ ``Cost Estimates for Scrubber Replacement at Facilities
Selected for Four Factor Analyses'' SIP submittal at 202 of 257.
\108\ SIP submittal at 203 of 257.
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As set forth in table 7-38, WV DEP then estimated the cost per
potential ton of emission reduction for each unit based on the
anticipated remaining useful life of each unit. WV DEP states that
these per-unit cost estimates are ``significantly more representative''
because the estimates in table 7-37 ``are quite generous in assuming
the expected life of the selected facilities to be 20 years.'' \109\ WV
DEP stated that the remaining useful life of Fort Martin Power Station
is anticipated to be four years, or until 2026, when WV DEP expects
``the proposed Good Neighbor CSAPR FIP would require the facility to
install SCR for NO<INF>X</INF> control'' and that WV DEP does not
expect the facility's owner/operator to do so.\110\ WV DEP also stated
that the remaining useful life of Grant Town Plant is thirteen years,
or 2035,\111\ when the power purchase agreement for the facility
expires, and that WV DEP does not anticipate that this power purchase
agreement will be extended beyond 2035. WV DEP also stated that the
remaining lifespans of Harrison Power Station, the John E. Amos Plant,
and the Mitchell Plant each are not anticipated to exceed fifteen
years, or 2037, based on the age of the facility in 2037 (sixty-five
years old) compared to the fifty-year average lifespan of coal-fired
power plants in the United States according to the Energy Information
Administration (EIA).\112\ Finally, as discussed previously, WV DEP
stated that the remaining lifespan of Pleasants Power Station is one
year, as the owner/operator placed the facility on the PJM list for
deactivation by June 1, 2023, though WV DEP's response to the EPA's
comments also notes that this shutdown is ``not currently
enforceable.'' \113\ Furthermore, WV DEP has not provided any evidence
that the described retirement dates for any of the six facilities it
performed cost effectiveness analyses for are federally enforceable and
permanent within its SIP submittal.
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\109\ Id.
\110\ Table 7-38, SIP submittal at 205 of 257, and ``Cost
Estimates for Scrubber Replacement at Facilities Selected for Four
Factor Analyses'' at 206 of 257.
\111\ West Virginia states that the remaining lifespan of Grant
Town Plant lasts until 2035 at page 206 of the SIP submittal and
2036 at page 198 of the SIP submittal.
\112\ SIP submittal at 206 of 257.
\113\ Appendix H-4, ``West Virginia Department of Environmental
Protection Division of Air Quality Responses to EPA Region 3
Comments on the West Virginia Draft Regional Haze State
Implementation Plan August 2022,'' section 3. See also SIP submittal
at 206 of 257.
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In addition to ``remaining useful life'' being one of the four
statutory factors, the EPA has previously established within its 2019
Guidance that a short remaining useful life is also directly correlated
with the cost of compliance factor, as the annualized calculated cost
of compliance generally increases with a shorter remaining useful life
based on the decreasing amortization period.\114\ In other words, a
short remaining useful life increases the remaining cost of compliance
for implementing new or additional emissions control technologies. As
previously discussed, WV DEP has not provided sufficient evidence
within its SIP submittal that any of the six retirement dates are
federally enforceable to warrant the use of a shorter remaining useful
life within its cost estimates. Therefore, the EPA is unable to
conclude whether the provided dates represent a reasonable
[[Page 6950]]
assumption upon which to base a cost analysis \115\.
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\114\ 2019 Guidance at 20.
\115\ The EPA Control Cost Manual generally recommends an
assumed 30-year lifetime for scrubbers and used a 30- year lifetime
in all of the Control Cost Manual example calculations. See Section
5--Chapter 1: Wet and Dry Scrubbers for Acid Gas Control, pp 1-8 and
1-36 to 1-37, available <a href="http://atwww.epa.gov/sites/default/files/2021-05/documents/wet_and_dry_scrubbers_section_5_chapter_1_control_cost_manual_7th_edition.pdf">atwww.epa.gov/sites/default/files/2021-05/documents/wet_and_dry_scrubbers_section_5_chapter_1_control_cost_manual_7th_edition.pdf</a>. See also 2019 Guidance at 33-34 (``In the situation where
an enforceable shutdown date does not exist, the remaining useful
life of a control under consideration should be full period of
useful life of that control as recommended by EPA's Control Cost
Manual.'').
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Additionally, the cost estimates that WV DEP performed for the six
facilities discussed in IV.E.2.a. and IV.E.2.b., of this document, are
insufficiently justified within its SIP submittal. For example, WV DEP
includes categories of costs (such as new LSFO costs and annual
operation and maintenance costs as facility-wide and unit-specific
costs) in tables 7-37 and 7-38. WV DEP explains that these costs were
based on a 9,500 Btu/kWH \116\ heat rate and an assumed 20-year
lifetime. However, WV DEP does not provide any evidence supporting how
it established those costs, nor does WV DEP explain the origin of such
information including its underlying calculations or documentation. For
example, as noted above, WV DEP did not provide unit level evidence of
enforceable and permanent retirements for units that have an assumed
shortened lifetime in table-7-38. But WV DEP also did not adequately
explain why they used a 20-year lifetime for the calculations in table
7-37 instead of a 30-year lifetime, as recommended in the EPA's Control
Cost Manual. Comparing the existing age of operating plants to the
average age of all plants in the country is not an appropriate
justification for assuming a shortened lifetime (using 20 years instead
of 30 years). The EPA agrees that it would likely be impractical and
prohibitively expensive to remove the existing control equipment and
replace it with entirely new controls in pursuit of relatively minor
improvements in emission reduction efficiency. However, this is not the
appropriate basis upon which to exclude potential additional measures
(e.g., optimization of existing controls with a corresponding emissions
limit) from consideration in a reasonable progress analysis, and would
be inconsistent with consideration of a ``meaningful set'' of control
options.\117\ In addition, as West Virginia is requiring no additional
emissions reductions measures for selected sources in the second
planning period, the SIP submittal also does not explain or adequately
support the absence of analysis or documentation of existing measures
within the SIP (e.g., existing permit limits) for the facilities
identified in the reasonable progress discussion and whether those
measures are necessary for reasonable progress. West Virginia's
deficient and insufficiently documented cost estimates ultimately
result in the State's failure to develop a long-term strategy
containing enforceable measures that are necessary to make reasonable
progress in the second planning period under CAA 169A and RHR 40 CFR
51.308(f)(2).\118\
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\116\ Kilowatthour (kWh) is a measure of electricity defined as
a unit of work or energy, measured as 1 kilowatt (1,000 watts) of
power expended for 1 hour.
\117\ 82 FR 3088.
\118\ West Virginia's independent analysis did not consider two
of the four statutory factors of CAA section 169A(g)(1)--the energy
and non air quality environmental impacts of compliance and time
necessary for compliance.
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d. Summary/Conclusion
Regarding selection of sources for reasonable progress and four-
factor analyses, West Virginia's submittal cites the EPA's 2019
Guidance in saying that ``that the selection of emission sources for
analysis is the responsibility of the state.'' \119\ However, as part
of this analysis, States are required to adequately justify their
rationale and methodology for selecting sources and evaluating
emissions controls. And in fact, West Virginia quotes the regional haze
rule requirement at 40 CFR 51.308(f)(2)(i) that ``The State must
include in its implementation plan a description of the criteria it
used to determine which sources or groups of sources it evaluated and
how the four factors were taken into consideration in selecting the
measures for inclusion in its long-term strategy.'' \120\ Based on the
information contained in the SIP submittal and the EPA's review of the
information, West Virginia has not satisfied this requirement.
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\119\ See section 7.6.4 of the SIP submittal at 180 of 257.
\120\ Id.
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Therefore, West Virginia's inadequate analysis of the four
statutory factors was unreasonable. It was not reasonable for West
Virginia to reject determining what measures, if any, are necessary to
make reasonable progress toward the national goal, and thus need to be
a part of the State's long-term strategy. West Virginia failed to
``evaluate and determine the emission reduction measures that are
necessary to make reasonable progress by considering the costs of
compliance, the time necessary for compliance, the energy and non-air
quality environmental impacts of compliance, and the remaining useful
life of any potentially affected anthropogenic source of visibility
impairment,'' as required by 40 CFR 51.308(f)(2)(i) and CAA section
169A(g)(1). The EPA expressed these issues and concerns during the
public comment period of West Virginia's draft SIP submittal.\121\ West
Virginia's submittal has not adequately addressed these deficiencies.
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\121\ See January 5, 2022, letter from Cristina Fernandez,
Director Air and Radiation Division, EPA Region 3 to Laura Crowder,
Division of Air Quality, WV DEP, in the rulemaking docket for this
action.
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Further, the national goal set by Congress outlines both the
remedying of any existing visibility impairment, and also preventing
any future visibility impairment. CAA section 169A(a). In the absence
of any new measures, West Virginia also did not evaluate whether the
continued implementation of the existing measures at any of the
selected sources is necessary for reasonable progress. Specifically,
West Virginia did not clearly explain that it intends to submit any of
the measures for the six facilities discussed in section 7.8 of the SIP
as existing measures necessary for reasonable progress, did not submit
documentation for any particular existing measures, and does not
request to include such measures in the SIP as part of its long-term
strategy. West Virginia therefore did not provide a reasonable
rationale to support a conclusion that for the second planning period,
no new or existing measures are necessary for its long-term strategy,
despite identifying numerous sources that impact visibility at nine
Class I Areas.
Providing a long-term strategy for making reasonable progress
toward the national goal, including consideration of the four factors,
is a statutory and regulatory requirement for every State. Although WV
DEP selected six sources for reasonable progress analysis and conducted
its own cost estimates for those six sources, and one facility
conducted a four-factor analysis upon which WV DEP relied, West
Virginia failed to conduct sufficiently robust and adequately supported
analyses of the four statutory factors for any of the six sources. West
Virginia neither assessed other potential new measures, nor did it
conduct any analysis of existing measures or put forth such measures
for inclusion in the SIP. Therefore West Virginia has not established
that its second planning period SIP submission contains the emission
limits, schedules of compliance, and other measures as may be necessary
to make reasonable progress toward meeting the national
[[Page 6951]]
visibility goal consistent with the CAA and the RHR.\122\
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\122\ See also CAA 169A(b)(2).
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In conclusion, the SIP submission meets neither the regional haze
requirements, nor requirements of the CAA. Specifically, as described
in detail above, the SIP submission fails to satisfy the statutory
requirements in CAA section 169A(b)(2)(B) to contain a long-term
strategy for making reasonable progress; the CAA section 169A(g)(1)
requirement to consider the four factors in determining reasonable
progress; and the CAA section 169A(b)(2) requirement for the SIP to
contain the emissions limits, schedules of compliance and other
measures as may be necessary to make reasonable progress toward meeting
the national goal. In addition, lack of robust evaluation of emissions
measures considering the four factors, and related inadequate
supporting documentation of the analyses and conclusions, results in
West Virginia not meeting the regulatory requirements in 40 CFR
51.308(f)(2) and (f)(2)(i) and (iii). Therefore, the EPA is proposing
to disapprove West Virginia's Regional Haze SIP submission.
F. Additional Long-Term Strategy Requirements
The consultation requirements of 40 CFR 51.308(f)(2)(ii) provide
that States must consult with other States that are reasonably
anticipated to contribute to visibility impairment in a Class I Area to
develop coordinated emission management strategies containing the
emission reductions measures that are necessary to make reasonable
progress. Section 51.308(f)(2)(ii)(A) and (B) require States to
consider the emission reduction measures identified by other States as
necessary for reasonable progress and to include agreed upon measures
in their SIPs. Section 51.308(f)(2)(ii)(C) speaks to what happens if
States cannot agree on what measures are necessary to make reasonable
progress.
WV DEP included documentation of its calls, webinars,
presentations, and other consultation with VISTAS and non-VISTAS States
from December 2017 to October 2020. West Virginia's consultation
documentation confirms that no States disagreed with or provided
comment on West Virginia's approach to its long-term strategy.
Section 51.308(f)(2)(iii) also requires that the emissions
information considered to determine the measures that are necessary to
make reasonable progress include information on emissions for the most
recent year for which the State has submitted triennial emissions data
to the EPA (or a more recent year), with a twelve-month exemption
period for newly submitted data.
WV DEP included emissions information from the most recent year in
its submittal; 2017, 2018, and 2019 emissions information that had been
previously reported to the EPA and compared these emissions to the 2028
emissions used in its modeling.\123\ Table 7-35 shows all West Virginia
facilities with greater than 100 tpy SO<INF>2</INF> emissions in 2017
and table 7-36 shows all West Virginia facilities with greater than 100
tpy NO<INF>X</INF> emissions in 2017.
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\123\ See Section 7.6.5, ``Evaluation of Recent Emission
Inventory Information'' of WV DEP's Regional Haze SIP Submittal for
the 2nd Planning Period.
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As summarized in section IV of this document, the State provided
emissions inventory information for individual sources for multiple
years, including the most recent year for which the State submitted
emissions data to the EPA in compliance with the triennial reporting
requirements of the AERR.
Regardless, as explained in the preceding sections, due to flaws
and omissions in its source evaluations, four-factor analyses and the
resulting control determinations, the EPA finds that West Virginia
failed to submit to the EPA a long-term strategy that includes ``the
enforceable emissions limitations, compliance schedules, and other
measures that are necessary to make reasonable progress'' as required
by 40 CFR 51.308(f)(2).\124\ Consequently, we find that West Virginia's
SIP does not satisfy the long-term strategy requirements of 40 CFR
51.308(f)(2). Therefore, the EPA proposes to disapprove all elements of
West Virginia's SIP submission as it relates to 40 CFR 51.308(f)(2)'s
long-term strategy requirements.
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\124\ See also CAA 169A(b)(2)(B) (requiring regional haze SIPs
to ``contain such emission limits, schedules of compliance and other
measures as may be necessary to make reasonable progress toward
meeting the national goal, . . . including . . . a long-term . . .
strategy for making reasonable progress[.]'').
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G. Reasonable Progress Goals
Section 51.308(f)(3) contains the requirements pertaining to RPGs
for each Class I Area. Section 51.308(f)(3)(i) requires a State in
which a Class I area is located to establish RPGs--one each for the
clearest days and the most impaired days--reflecting the visibility
conditions that will be achieved at the end of the planning period as a
result of the emission limitations, compliance schedules, and other
measures required under paragraph (f)(2) to be in a State's long-term
strategy, as well as the implementation of other CAA requirements. The
long-term strategy, as reflected by the RPGs, must provide for an
improvement in visibility on the most impaired days relative to the
baseline period and ensure no degradation on the clearest days relative
to the baseline period. Section 51.308(f)(3)(ii) applies in
circumstances in which a Class I area's RPG for the most impaired days
represents a slower rate of visibility improvement than the uniform
rate of progress calculated under 40 CFR 51.308(f)(1)(vi). Under 40 CFR
51.308(f)(3)(ii)(A), if the State in which a mandatory Class I area is
located establishes an RPG for the most impaired days that provides for
a slower rate of visibility improvement than the URP, the State must
demonstrate that there are no additional emission reduction measures
for anthropogenic sources or groups of sources in the State that would
be reasonable to include in its long-term strategy. Section
51.308(f)(3)(ii)(B) requires that if a State contains sources that are
reasonably anticipated to contribute to visibility impairment in a
Class I area in another State, and the RPG for the most impaired days
in that Class I area is above the URP, the upwind State must provide
the same demonstration.
West Virginia established 2028 RPGs for both of its Class I areas
in deciviews for the 20 percent clearest days and the 20 percent most
impaired in tables 8-1 and 8-2 of its submittal, respectively, and both
Class I areas are projected to remain below the URP based on VISTAS
modeling. However, as outlined throughout this document, because West
Virginia's SIP submission did not meet the required statutory or
regulatory requirements, the EPA is proposing to disapprove the SIP in
its entirety, and is not proposing to approve these regulatory
requirements. Additionally, per 40 CFR 51.308(f)(3)(iv), the EPA must
evaluate the demonstrations the State developed pursuant to 40 CFR
51.308(f)(2) to determine whether the State's reasonable progress goals
for visibility improvement provide for reasonable progress towards
natural visibility conditions. As previously explained in section IV.E.
of this document we are proposing to disapprove West Virginia's long-
term strategy for failing to meet the requirements of 40 CFR
51.308(f)(2). Therefore, we also propose to disapprove West Virginia's
reasonable progress goals under 40 CFR 51.308(f)(3) because compliance
with that
[[Page 6952]]
requirement is dependent on compliance with 40 CFR 51.308(f)(2).\125\
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\125\ See CAA 169A(b)(2), 40 CFR 51.308(f)(2).
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H. Monitoring Strategy and Other Implementation Plan Requirements
Section 51.308(f)(6) specifies that each comprehensive revision of
a State's Regional Haze SIP must contain or provide for certain
elements, including monitoring strategies, emissions inventories, and
any reporting, recordkeeping and other measures needed to assess and
report on visibility. A main requirement of this section is for States
with Class I Areas to submit monitoring strategies for measuring,
characterizing, and reporting on visibility impairment. Section
51.308(f)(6)(ii) requires SIPs to provide for procedures by which
monitoring data and other information are used in determining the
contribution of emissions from within the State to Regional Haze
visibility impairment at mandatory Class I Federal Areas both within
and outside the State. Section 51.308(f)(6)(iii) requires SIPs to
provide procedures by which monitoring data and other information are
used in determining the contribution of emissions from within the State
to Regional Haze visibility impairment at mandatory Class I Federal
Areas in other States. Section 51.308(f)(6)(iv) requires the SIP to
provide for the reporting of all visibility monitoring data to the
Administrator at least annually for each Class I area in the State.
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide
inventory of emissions of pollutants that are reasonably anticipated to
cause or contribute to visibility impairment, including emissions for
the most recent year for which data are available. Section
51.308(f)(6)(v) also requires States to include estimates of future
projected emissions and include a commitment to update the inventory
periodically.
With respect to 40 CFR 51.308(f)(6)(i), WV DEP stated that the
existing IMPROVE monitors for the State's Class I areas are sufficient
for the purposes of this SIP revision. With respect to 40 CFR
51.308(f)(6)(ii), WV DEP stated that it will use data from these
IMPROVE monitors for future haze plans and progress reports. 40 CFR
51.308(f)(6)(iii) does not apply to West Virginia, as this provision
only applies to States with no Class I areas. With respect to 40 CFR
51.308(f)(6)(iv), the NPS manages and oversees the IMPROVE monitoring
network and reviews, verifies, and validates IMPROVE data before its
submission to the EPA's Air Quality System (AQS). With respect to 40
CFR 51.308(f)(6)(v), WV DEP provided a baseline emissions inventories,
current emissions data, and 2028 future emissions projections for
visibility-impairing pollutants for source categories and specific
point sources, and committed to update the inventory periodically.\126\
With respect to 40 CFR 51.308(f)(6)(vi), West Virginia affirmed that
there are no elements, including reporting, recordkeeping, or other
measures, necessary to address and report on visibility for West
Virginia's Class I areas or Class I areas outside the State that are
affected by sources in West Virginia.
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\126\ See Section 4, ``Types of Emissions Impacting Visibility
Impairment in West Virginia Class I Areas'', Section 7.2.4, ``EPA
Inventories'', and Section 13, ``Progress Report'' of WV DEP's
Regional Haze SIP Submittal for the 2nd Planning Period.
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However, as outlined throughout this document, because West
Virginia's SIP submission did not meet the required statutory or
regulatory requirements, the EPA is proposing to disapprove the SIP in
its entirety and is not proposing to approve these regulatory
requirements.
I. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires that periodic comprehensive revisions
of States' Regional Haze plans also address the progress report
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these
requirements is to evaluate progress towards the applicable RPGs for
each Class I Area within the State and each Class I Area outside the
State that may be affected by emissions from within that State.
Sections 51.308(g)(1) and (2) apply to all States and require a
description of the status of implementation of all measures included in
a State's first implementation period Regional Haze plan and a summary
of the emission reductions achieved through implementation of those
measures. Section 51.308(g)(3) applies only to States with Class I
Areas within their borders and requires such States to assess current
visibility conditions, changes in visibility relative to baseline
(2000-2004) visibility conditions, and changes in visibility conditions
relative to the period addressed in the first implementation period
progress report.
Section 51.308(g)(4) applies to all States and requires an analysis
tracking changes in emissions of pollutants contributing to visibility
impairment from all sources and sectors since the period addressed by
the first implementation period progress report. This provision further
specifies the year or years through which the analysis must extend
depending on the type of source and the platform through which its
emission information is reported. Finally, 40 CFR 51.308(g)(5), which
also applies to all States, requires an assessment of any significant
changes in anthropogenic emissions within or outside the State that
have occurred since the period addressed by the first implementation
period progress report, including whether such changes were anticipated
and whether they have limited or impeded expected progress towards
reducing emissions and improving visibility.
With respect to the 40 CFR 51.308(g)(1) through (5) requirements,
WV DEP included a description of the status of the implementation of
all measures included in West Virginia's first implementation period
Regional Haze Plan, a summary of the emissions reductions achieved from
these measures, an analysis tracking changes in emissions, and an
assessment of significant changes in emissions. However, as outlined
throughout this document, because West Virginia's SIP submission did
not meet the required statutory or regulatory requirements, the EPA is
proposing to disapprove the SIP in its entirety and is not proposing to
approve these regulatory requirements.
J. Requirements for State and Federal Land Manager Coordination
Section 169A(d) of the CAA requires States to consult with FLMs
before holding the public hearing on a proposed Regional Haze SIP, and
to include ``a summary of the FLMs' conclusions and recommendations in
the notice to the public.''
Section 51.308(i)(2)'s FLM consultation provision requires a State
to provide FLMs with an opportunity for consultation that is early
enough in the State's policy analyses of its emission reduction
obligation so that information and recommendations provided by the FLMs
can meaningfully inform the State's decisions on its long-term
strategy. If the consultation has taken place at least 120 days before
a public hearing or public comment period, the opportunity for
consultation will be deemed early enough. Regardless, the opportunity
for consultation must be provided at least sixty days before a public
hearing or public comment period at the State level. Section
51.308(i)(2) also provides two substantive topics on which FLMs must be
provided an opportunity to discuss with States: assessment of
visibility impairment in any Class I Area
[[Page 6953]]
and recommendations on the development and implementation of strategies
to address visibility impairment. Section 51.308(i)(3) requires States,
in developing their implementation plans, to include a description of
how they addressed FLMs' comments.
WV DEP included records of its consultation with various FLMs. The
NPS submitted comments to WV DEP on October 19, 2021, the USFS
submitted comments on October 26, 2021, and the FWS did not submit
comments. WV DEP included the FLM comments and its responses in its
submittal.\127\
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\127\ Appendix H-2 ``Federal Land Manager Comments'' in WV DEP's
Regional Haze SIP Submittal for the 2nd Planning Period.
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While WV DEP did take administrative steps to conduct consultation,
if the EPA finalizes the disapproval of the SIP, in the process of
correcting the deficiencies outlined above with respect to the RHR and
statutory requirements, the State (or the EPA in the case of an
eventual FIP) will again be required to satisfy the FLM consultation
requirements under 40 CFR 51.308(i)(2).\128\ However, as discussed
throughout this document, because WV DEP's SIP submission did not meet
the required statutory or regulatory requirements, the EPA is proposing
to disapprove the SIP in its entirety, and is not proposing to approve
these regulatory requirements.
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\128\ In addition, if the EPA finalizes our proposed disapproval
of WV DEP's SIP submittal, the State (or the EPA in the potential
case of a FIP) will be required to again complete the FLM
consultation requirements under 40 CFR 51.308(i).
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V. Environmental Justice
WV DEP included Appendix I, ``Environmental Justice,'' to its SIP
submittal. Appendix I consists entirely of a 2021 Informal Resolution
between WV DEP and the EPA resolving a claim under Title VI of the
Civil Rights Act of 1964 related to alleged discrimination against
African American descendants of persons buried in the Boyd Carter
Memorial Cemetery. Appendix I does not contain any analysis or
evaluation of impacts of this SIP on communities with environmental
justice concerns. Neither the CAA nor the applicable implementing
regulations either prohibit or require such an evaluation. The EPA did
not conduct an environmental justice (EJ) screening analysis for this
SIP submittal.
VI. Proposed Action
The EPA is proposing to disapprove the WV DEP SIP submission
relating to Regional Haze for the second planning period received on
August 12, 2022, because the State's SIP submission fails to meet both
the regulatory requirements of the Regional Haze Rule and the statutory
requirements of the Clean Air Act. Specifically, because WV DEP failed
to conduct the proper analyses to determine what measures are necessary
for reasonable progress and did not adequately consider the four
statutory factors, thereby not including a sufficiently robust and
adequately justified long-term strategy that includes measures
necessary for reasonable progress in its second planning period SIP
submission. West Virginia's SIP submission does not contain the
emission limits, schedules of compliance, and other measures as may be
necessary to make reasonable progress toward meeting the national
visibility goal. Therefore, the SIP submission does not meet the
regional haze requirements, nor requirements of the CAA. Specifically,
as described in detail in this NPRM, the SIP submission does not meet
the statutory requirements in CAA section 169A(b)(2)(B) to contain a
long-term strategy for making reasonable progress; the CAA section
169A(g)(1) requirement to consider the four factors in determining
reasonable progress; and the CAA section 169A(b)(2) requirement for the
SIP to contain the emissions limits, schedules of compliance and other
measures as may be necessary to make reasonable progress toward meeting
the national goal. In addition, the insufficiently robust and
inadequately justified source selection, evaluation of emissions
measures considering the four factors, related inadequate supporting
documentation, and the failure to discuss or adequately evaluate
existing measures in the absence of any new measures results in the WV
DEP SIP submission not meeting the regulatory requirements in 40 CFR
51.308(f)(2).
The EPA is not proposing a FIP at this time. If the EPA finalizes
the disapproval, that will start a two-year clock for the EPA to
propose and finalize a FIP. We are processing this as a proposed action
because we are soliciting comments on this proposed action. Disapproval
does not start a mandatory sanctions clock for West Virginia. Final
rule will occur after consideration of any comments.
VII. 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, the EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action proposes to disapprove State law as not meeting Federal
requirements and does not impose additional requirements. For that
reason, this proposed 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); and
<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 Clean Air Act;
<bullet> Executive Order 12898 (Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to
identify and address ``disproportionately high and adverse human health
or environmental effects'' of their actions on minority populations and
low-income populations to the greatest extent practicable and permitted
by law. The EPA defines environmental justice (EJ) as ``the fair
treatment and meaningful involvement of all people regardless of race,
color, national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
[[Page 6954]]
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' West Virginia did not
evaluate EJ considerations as part of its SIP submittal; the CAA and
applicable implementing regulations neither prohibit nor require such
an evaluation. The EPA did not perform an EJ analysis and did not
consider EJ in this action. Due to the nature of the action being taken
here, this action is expected to have a neutral impact on the air
quality of the affected area. Consideration of EJ is not required as
part of this action, and there is no information in the record
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
<bullet> In addition, this action 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 the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law. Thus, Executive
Order 13175 does not apply to this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2025-01101 Filed 1-17-25; 8:45 am]
BILLING CODE 6560-50-P
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