[Federal Register Volume 80, Number 108 (Friday, June 5, 2015)]
[Rules and Regulations]
[Pages 32019-32026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13801]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2013-0423; FRL-9928-78-Region 3]
Approval and Promulgation of Implementation Plans; West Virginia;
Regional Haze Five-Year Progress Report State Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the State of West
Virginia (West Virginia) through the West Virginia Department of
Environmental Protection (WVDEP). West Virginia's SIP revision
addresses requirements of the Clean Air Act (CAA) and EPA's rules that
require states to submit periodic reports describing progress towards
reasonable progress goals (RPGs) established for regional haze and a
determination of the adequacy of the state's existing implementation
plan addressing regional haze (regional haze SIP). EPA is approving
West Virginia's SIP revision on the basis that it addresses the
progress report and adequacy determination requirements for the first
implementation period for regional haze.
DATES: This final rule is effective on July 6, 2015.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2013-0423. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of West
Virginia's submittal are available at the West Virginia Department of
Environmental Protection, Division of Air Quality, 601 57th Street SE.,
Charleston, West Virginia 25304.
FOR FURTHER INFORMATION CONTACT: Asrah Khadr, (215) 814-2071, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On March 14, 2014 (79 FR 14460), EPA published a notice of proposed
rulemaking (NPR) for West Virginia. In the NPR, EPA proposed approval
of West Virginia's progress report SIP, a report on progress made in
the first implementation period towards RPGs for Class I areas in and
outside West Virginia that are affected by emissions from West
Virginia's sources. This progress report SIP and accompanying cover
letter also included a determination that West Virginia's existing
regional haze SIP requires no substantive revision to achieve the
established regional haze visibility improvement and emissions
reduction goals for 2018. On March 10, 2015 (80 FR 12607), EPA
published a supplemental NPR (SNPR) to address the potential effects on
EPA's proposed approval from the April 29, 2014 decision of the United
States Supreme Court in EPA v. EME Homer City Generation, L.P., 134 S.
Ct. 1584 (2014), remanding to the United States Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) EPA's Cross-State Air
Pollution Rule (CSAPR) for further proceedings and the D.C. Circuit's
decision to lift the stay of CSAPR.
[[Page 32020]]
States are required to submit a progress report in the form of a
SIP revision every five years that evaluates progress towards the RPGs
for each mandatory Class I Federal area \1\ within the state and in
each mandatory Class I Federal area outside the state which may be
affected by emissions from within the state. See 40 CFR 51.308(g). In
addition, the provisions under 40 CFR 51.308(h) require states to
submit, at the same time as the 40 CFR 51.308(g) progress report, a
determination of the adequacy of the state's existing regional haze
SIP. The first progress report SIP is due five years after submittal of
the initial regional haze SIP. On June 18, 2008, WVDEP submitted its
regional haze SIP in accordance with the requirements of 40 CFR
51.308.\2\ The progress report SIP revision was submitted by West
Virginia on April 30, 2013 and EPA finds that it satisfies the
requirements of 40 CFR 51.308(g) and (h).
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\1\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6000 acres, wilderness areas and
national memorial parks exceeding 5000 acres, and all international
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a).
In accordance with section 169A of the CAA, EPA, in consultation
with the Department of Interior, promulgated a list of 156 areas
where visibility is identified as an important value. 44 FR 69122
(November 30, 1979). The extent of a mandatory Class I area includes
subsequent changes in boundaries, such as park expansions. 42 U.S.C.
7472(a). Although states and tribes may designate as Class I
additional areas which they consider to have visibility as an
important value, the requirements of the visibility program set
forth in section 169A of the CAA apply only to ``mandatory Class I
Federal areas.'' Each mandatory Class I Federal area is the
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i).
When we use the term ``Class I area'' in this action, we mean a
``mandatory Class I Federal area.''
\2\ On March 23, 2012 (77 FR 16937), EPA finalized a limited
approval and limited disapproval of West Virginia's June 18, 2008
regional haze SIP to address the first implementation period for
regional haze. The limited disapproval of this SIP was a result of
West Virginia's reliance on the Clean Air Interstate Rule (CAIR) to
meet certain regional haze requirements. EPA addressed the
deficiency identified in its limited disapproval with a federal
implementation plan (FIP) in June 2012 that replaced West Virginia's
reliance upon CAIR for certain regional haze requirements with
reliance on CSAPR, a rule that EPA had issued in August 2011 to
replace CAIR. 77 FR 33642 (final action on FIP to address certain
West Virginia regional haze requirements). See also 76 FR 48208
(August 8, 2011) (promulgation of CSAPR). The D.C. Circuit initially
vacated CSAPR in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7
(D.C. Cir. 2012), cert. granted 133 U.S. 2857 (2013); however, the
United States Supreme Court vacated that decision and remanded CSAPR
to the D.C. Circuit for further proceedings. EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014). EPA began implementing
CSAPR on January 1, 2015 after the D.C. Circuit lifted its stay of
CSAPR. Order of Dec. 30, 2011, in EME Homer City Generation, L.P. v.
EPA, D.C. Cir. No. 11-1302. See 79 FR 71663 (December 3, 2014)
(interim final rulemaking clarifying how EPA will implement CSAPR).
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II. Summary of SIP Revision
On April 30, 2013, West Virginia submitted a SIP revision to
describe the progress made towards the RPGs of Class I areas in and
outside West Virginia that are affected by emissions from West
Virginia's sources. This progress report SIP also includes a
determination of the adequacy of West Virginia's existing regional haze
SIP to achieve these RPGs.
West Virginia has two Class I areas within its borders: Dolly Sods
Wilderness Area (Dolly Sods) and Otter Creek Wilderness Area (Otter
Creek). West Virginia notes in its progress report SIP that West
Virginia sources were also identified, through an area of influence
modeling analysis based on back trajectories, as potentially impacting
nine Class I areas in five neighboring states: Brigantine Wilderness in
New Jersey; Great Smoky Mountains National Park in North Carolina and
Tennessee; James River Face Wilderness in Virginia; Linville Gorge
Wilderness in North Carolina; Monmouth Cave National Park in Kentucky;
and Shenandoah National Park in Virginia.
The provisions in 40 CFR 51.308(g) require a progress report SIP to
address seven elements. EPA finds that West Virginia's progress report
SIP addressed each element under 40 CFR 51.308(g). The seven elements
and EPA's conclusion are briefly summarized in this rulemaking action.
The provisions in 40 CFR 51.308(g) require progress report SIPs to
include a description of the status of measures in the approved
regional haze SIP; a summary of emissions reductions achieved; an
assessment of visibility conditions for each Class I area in the state;
an analysis of changes in emissions from sources and activities within
the state; an assessment of any significant changes in anthropogenic
emissions within or outside the state that have limited or impeded
progress in Class I areas impacted by the state's sources; an
assessment of the sufficiency of the approved regional haze SIP; and a
review of the state's visibility monitoring strategy. As explained in
detail in the NPR and SNPR, EPA finds that West Virginia's progress
report SIP addressed each element and has therefore satisfied the
requirements under 40 CFR 51.308(g).
In addition, pursuant to 40 CFR 51.308(h), states are required to
submit, at the same time as the progress report SIP, a determination of
the adequacy of their existing regional haze SIP and to take one of
four possible actions based on information in the progress report. One
possible action is submission of a negative declaration to EPA that no
further substantive revision to the state's existing regional haze SIP
is needed. In its progress report SIP, West Virginia submitted a
negative declaration that it had determined that its existing regional
haze SIP requires no further substantive revision to achieve the RPGs
for the Class I areas that are affected by emissions from West
Virginia's sources. As explained in detail in the NPR and SNPR, EPA
concludes West Virginia has adequately addressed 40 CFR 51.308(h)
because the visibility data trends at the Class I areas impacted by
West Virginia's sources and the emissions trends of the largest
emitters of visibility-impairing pollutants both indicate that the RPGs
for 2018 will be met or exceeded. Therefore, EPA concludes West
Virginia's progress report SIP meets the requirements of 40 CFR
51.308(h).
III. Summary of Public Comments and EPA Response
EPA received comments on the proposed rulemaking from the National
Parks Conservation Association (Commenter). EPA received one additional
comment on the SNPR from the Utility Air Regulatory Group (SNPR
Commenter) in support of our proposed approval of West Virginia's
progress report SIP. A full set of the comments are provided in the
docket for today's final rulemaking action. A summary of the
significant comments and the EPA's response is provided in this
section.
Comment 1: The Commenter stated that EPA should not approve the
West Virginia progress report SIP revision because the report does not
meet the requirements of 40 CFR 51.308(g)(2). The Commenter stated that
the West Virginia progress report describes emission reductions in West
Virginia but fails to detail specific reductions achieved through
implementation of specific measures in the West Virginia regional haze
SIP. The Commenter claimed that the report neither demonstrates that
regional haze SIP measures are working nor that emission reductions or
visibility improvement has resulted from enforceable requirements in
the regional haze SIP and not from ``outside forces.'' More
specifically, the Commenter claimed that reductions in sulfur dioxide
(SO2) emissions from electric generating units (EGUs) from
shutdowns, fuel switches, addition of controls, shifting to the use of
cleaner units, and a decrease in demand were reversible if not
enforceable. The Commenter stated that emission reductions cannot be
relied upon if not enforceable and requested
[[Page 32021]]
EPA provide the reductions achieved through West Virginia's regional
haze SIP and revise its assessment of the SIP revision.
Response 1: EPA disagrees with the Commenter's assertion that West
Virginia has not adequately addressed 40 CFR 51.308(g)(2) and that EPA
cannot accordingly approve West Virginia's progress report SIP
revision. While the regulations at 40 CFR 51.308(g)(2) require a
summary of the emissions reductions achieved in the State through the
measures in its regional haze SIP, there is nothing in this provision
requiring a detailed, causal analysis pinpointing or linking specific
emission reductions to specific regional haze SIP measures.
The Commenter's argument that West Virginia must specifically link
specific measures in the regional haze SIP to changes in emissions
inventories appears to be based on a misunderstanding of the design of
the regional haze program and the purpose of the mid-course progress
reports. The Regional Haze Rule,\3\ which was promulgated not long
after the 1997 revisions to the ozone and fine particulate matter
(PM2.5) National Ambient Air Quality Standards (NAAQS), was
explicitly designed to facilitate the coordination of emissions
management strategies for regional haze with those needed to implement
the NAAQS. See 64 FR 35713, 35719-35720 (July 1, 1999). More generally,
the Regional Haze Rule requires states to include all air quality
improvements that will be achieved by other CAA programs and state air
pollution control requirements when assessing changes in emissions and
visibility to be expected during the period of their regional haze SIP.
64 FR at 35733. This is made clear in the haze regulations which
prohibit states from adopting RPGs that represent less visibility
improvement than is expected to result from the implementation of other
CAA requirements during the planning period. 40 CFR 51.308(d)(1)(vi).
Given this requirement, states included in their regional haze SIPs a
number of Federal regulations for mobile and stationary sources that
had or were expected to come into effect after the baseline period and
that were anticipated to result in reductions of visibility impairing
pollutants. These regulations included NAAQS implementation measures as
well as other CAA requirements, such as mobile source rules or Maximum
Achievable Control Technology (MACT) standards issued under section 112
of the CAA. As one example, West Virginia included the 2007 Heavy-Duty
Highway Rule (40 CFR part 86, subpart P) in its regional haze SIP. In
short, West Virginia, like other states, included in its regional haze
SIP anticipated reductions in emissions during the baseline period
arising from a number of Federal CAA measures, as required by the
Regional Haze Rule.
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\3\ EPA promulgated a rule to address regional haze on July 1,
1999 (64 FR 35713) known as the Regional Haze Rule. The Regional
Haze Rule revised the existing visibility regulations to integrate
into the regulation provisions addressing regional haze impairment
and established a comprehensive visibility protection program for
Class I areas. The requirements for regional haze, are included in
the EPA's visibility protection regulations at 40 CFR 51.300-309.
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Thus, states took into account the anticipated emission reductions
from a wide range of measures in setting RPGs. To model the visibility
conditions in 2018, states used projected emission inventories based on
the best information before them. Given the significance of emissions
from EGUs to haze, these projections were based, among other things, on
expected changes in energy demand affecting capacity utilization of
power plants. States also sometimes included an emissions buffer to
account for the possible construction of new power plants or other
types of facilities. States also took into account, as described above,
anticipated reductions in emissions resulting from recent Federal rules
addressing non-visibility-related requirements, as well as consent
decrees, significant measures adopted by nearby states, and specific
measures to address the requirements of the visibility program. Thus,
in forecasting future visibility conditions, states by design took into
account to the extent possible ``outside forces'' and a host of
overlapping requirements.
The type of analysis underlying the RPGs established in regional
haze SIPs involves a fair degree of uncertainty. Changes in economic
conditions, fluctuations in the prices of fuels, the remand of a CAA
requirement by the courts, or the passage of new regulations are some
of the factors that may occur and can impact emissions inventories and
monitored visibility conditions. Because each planning period requires
states to forecast conditions ten or more years into the future, EPA
required a mid-course evaluation of the regional haze SIP. The purpose
of this progress report is to ``check in'' with the state to determine
whether its predictions regarding future visibility remain reasonable.
The purpose of summarizing the emission reductions throughout the state
from the measures in the regional haze SIP is to ensure that no
dramatic or unexpected changes in emissions inventories have rendered
unreliable the earlier projections of emissions in 2018.
In West Virginia's progress report SIP, EPA believes that West
Virginia provided a reasonable summary of the emissions reductions
achieved through the measures in the regional haze SIP by focusing on
those sources of pollution in West Virginia with the biggest impact on
haze. Because SO2 reductions from West Virginia's EGUs are
the key element of the State's regional haze strategy, West Virginia
discussed in its progress report SIP the significant SO2
emission reductions from EGUs since submittal of its regional haze SIP.
West Virginia also assessed the downward trend in SO2
emissions and emission rates in comparison to heat input at these units
and concluded that overall the data was indicative of the fact that the
reductions were the result of the installation of controls and the use
of cleaner burning fuels. See West Virginia State Implementation Plan
Revision: Regional Haze 5-Year Periodic Report (Covering 2008-2013),
Section 3.1 (April 30, 2013).\4\ Although West Virginia did not link
the specific reductions in the emission inventory to specific measures
in the regional haze SIP, the State did provide source-specific
information on its coal-fired EGUs. For each of these units, the State
identified the current status of SO2 controls and shutdowns
as well as the projected controls and shutdowns that were included in
the regional haze SIP and the estimated and actual SO2
reductions in 2009. Id. at p. 50-54 (Table 16). Taken together, West
Virginia's summary of the SO2 emissions reductions is
sufficient for the State to evaluate whether a mid-course correction in
its regional haze SIP is needed. As West Virginia's progress report
shows, emissions from these facilities are far below what was projected
in its regional haze SIP.
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\4\ The April 30, 2013 West Virginia State Implementation Plan
Revision: Regional Haze 5-Year Periodic Report (Covering 2008-2013)
is available in the docket for this action under Docket ID Number
EPA-R03-OAR-2013-0423 at www.regulations.gov.
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In sum, EPA believes West Virginia sufficiently discussed in its
progress report SIP revision the emission reductions which resulted
from numerous enforceable requirements found in West Virginia's
regional haze SIP. West Virginia's progress report discussed numerous
Federal and state enforceable measures which are responsible for
emissions reductions in West Virginia and which correlate to improved
visibility, including the Clean Air Interstate Rule (CAIR), the MACT
programs, the 2007 Heavy-Duty
[[Page 32022]]
Highway Rule, the Tier 2 Vehicle and Gasoline Sulfur Program, the
Nonroad Diesel Emissions Program, Federal consent decrees resolving
enforcement actions against EGUs and non-EGUs, and best available
retrofit technology (BART) determinations for sources located within
West Virginia and sources within a 300 kilometer radius of Dolly Sods
or Otter Creek. West Virginia also discussed measures from other states
which may have led to improvements in visibility in West Virginia
including the North Carolina Clean Smokestacks Act, Georgia
Multipollutant Control for Electric Utility Steam Generating Units, and
the Maryland Health Air Act. Additionally, in the progress report SIP
revision, West Virginia compared emissions inventories prior to and
after the implementation of the West Virginia regional haze SIP, a
comparison which show substantial reductions of visibility impairing
pollutants such as SO2. Because West Virginia demonstrated
that these Federal and state enforceable measures contributed to the
reduction of visibility impairing pollutants, EPA concluded West
Virginia adequately addressed 40 CFR 51.308(g)(2) requirements for a
summary of emission reductions in its progress report. Therefore, EPA
disagrees with the Commenter that EPA should disapprove the West
Virginia progress report SIP and disagrees that any further information
or analysis is required.
Comment 2: The Commenter claimed that West Virginia's progress
report SIP revision did not meet the requirements of 40 CFR
51.308(g)(3) because the visibility data presented by West Virginia
appeared within a graph and was not quantified in a clear, tabular
manner. Additionally, the Commenter alleged that West Virginia confused
the State's meeting the uniform rate of progress for Dolly Sods with
meeting its RPGs for Dolly Sods.
Response 2: EPA disagrees with the Commenter that West Virginia's
progress report is lacking the required visibility monitoring
information. 40 CFR 51.308(g)(3) only requires the following visibility
information measured in deciviews for the most impaired and least
impaired days for each area, with values expressed in terms of five-
year averages of these annual values: (1) Current visibility
conditions; (2) the difference between current visibility conditions
and baseline visibility conditions; and (3) the change in visibility
impairment over the past five years. Nothing in 40 CFR 51.308(g)(3)
requires the visibility data to be provided in a tabular format versus
the graphical format used in West Virginia's progress report, even
though a tabular format may facilitate easier review of the data. As
stated in our NPR, EPA believes West Virginia provided the required
information regarding visibility conditions and changes to meet the
requirements under 40 CFR 51.308(g)(3), specifically providing current
conditions based on the latest available Interagency Monitoring of
Protected Visual Environments (IMPROVE) monitoring data, the difference
between current visibility conditions and baseline visibility
conditions, and the change in visibility impairment over the most
recent five-year period for which data were available at the time of
the progress report SIP development. EPA believes the fact that West
Virginia presented this required information in graphical versus
tabular format is irrelevant to our conclusion that West Virginia
adequately addressed requirements in 40 CFR 51.308(g)(3).
While EPA agrees with the Commenter that West Virginia did
inadvertently state in its progress report on one page that it was
``meeting its RPG'' for Dolly Sods, EPA disagrees with the Commenter
that this inadvertent misstatement has any relevance to the
approvability of West Virginia's progress report generally or to EPA's
conclusion that West Virginia has adequately addressed 40 CFR
51.308(g)(3) specifically, as discussed above and in the NPR. In
particular, West Virginia appropriately discussed in its progress
report on pages 59-60 that an analysis of emission reductions in West
Virginia indicates the State is ``on track to achieve'' its RPGs in
2018 at Dolly Sods and that visibility at Dolly Sods had significantly
improved since 2000. West Virginia's progress report also graphically
displayed the State's progress towards its RPGs at Dolly Sods for 2018.
Therefore, EPA views West Virginia's statement on one page that it is
``meeting its RPG'' as inadvertent as West Virginia otherwise correctly
indicates in its progress report that the State is making reasonable
progress towards achieving its RPGs at Dolly Sods by 2018. While EPA
agrees with the Commenter that further emission reductions are needed
for West Virginia to meet fully its RPGs in 2018 at Dolly Sods, EPA
concludes West Virginia has appropriately addressed requirements of 40
CFR 51.308(g)(3) through its presentation of visibility data. For the
reasons discussed herein and discussed more fully in our NPR, EPA
believes West Virginia has demonstrated it is making reasonable
progress towards its RPGs for 2018 and that its regional haze SIP is
adequate, requiring no further revisions to the regional haze SIP at
this time for any additional emission reduction requirements for West
Virginia to achieve its RPGs in 2018.
Comment 3: The Commenter alleged that West Virginia's progress
report SIP revision does not meet the requirements of 40 CFR
51.308(g)(6). The Commenter stated EPA's proposed approval of the West
Virginia progress report SIP left unexamined West Virginia's assertion
it was on track to meet its RPGs in 2018 and did not quantify how West
Virginia's emission reductions would continue. The Commenter claimed
projected emission reductions from Federal programs like the Mercury
Air Toxics Standards (MATS) for EGUs and the 2010 SO2 NAAQS
are neither quantified nor necessarily enforceable at this time.
Additionally, the Commenter claimed none of the annual visibility
values for Dolly Sods have yet achieved the RPGs and therefore more
emission reductions are necessary. The Commenter stated EPA and West
Virginia have avoided review of additional controls on non-EGUs. The
Commenter claimed West Virginia committed in its regional haze SIP to
review the need for additional controls at non-EGUs in its five-year
progress report and therefore inappropriately concluded in its progress
report that additional controls on non-EGUs were not necessary as the
State was making progress towards its RPGs. The Commenter asserted some
initial emission reductions in West Virginia resulted from controls,
fuel switches, and shutdowns and as such are not necessarily
enforceable. The Commenter claimed these reductions must be maintained
and additional enforceable reductions from other source categories will
be needed for West Virginia to meet its RPGs by 2018.
Response 3: EPA disagrees with the Commenter's allegation that West
Virginia's progress report SIP revision does not meet the requirements
of 40 CFR 51.308(g)(6). EPA views this requirement as a qualitative
assessment, in light of emissions and visibility trends and other
readily available information, as to whether Class I areas affected by
emissions from a state are on track to meet their 2018 RPGs. See
Progress Report General Principles at 16. In the NPR, EPA has described
in detail how West Virginia's progress report provides such a
qualitative assessment that Class I areas impacted by emissions from
sources within West Virginia are on track to achieve their RPGs by
2018. EPA believes that the enforceable measures taken into
consideration in West Virginia's
[[Page 32023]]
regional haze SIP have contributed to the significant emissions
reductions in West Virginia as discussed in the progress report,
particularly in the visibility impairing pollutant SO2. West
Virginia's progress report included visibility monitoring data which
clearly demonstrated visibility improvement in the Class I areas
impacted by West Virginia sources. Even though the emissions reductions
are not specifically linked causally to specific measures in the
State's regional haze SIP, EPA believes the enforceable measures in the
SIP do and will continue to contribute to reductions in emissions and
that these measures have led to the visibility improvement indicated by
monitored data contained in West Virginia's progress report SIP
revision submittal. While West Virginia in its progress report did
identify several factors not in the West Virginia regional haze SIP
such as shutdowns and fuel switches that have reduced emissions from
sources within the State, West Virginia did not rely on these to
demonstrate that the implementation plan for the State is sufficient
for purposes of this review. West Virginia included a discussion of
these factors in the progress report to make clear that additional
factors beyond the measures in the SIP and federal implementation plan
(FIP) have contributed to the large emissions reductions seen
throughout the state, particularly in SO2 emissions which
have been identified as the primary contributor to visibility
impairment in West Virginia and in the Visibility Improvement State and
Tribal Association of the Southeast (VISTAS) region. West Virginia did
not account for these factors in its original regional haze SIP as the
shutdowns and fuel switches occurred after the development of the
regional haze SIP and in many cases are not enforceable, as noted by
the commenter. However, for this progress report SIP revision and to
address requirements in 40 CFR 51.308(g)(1)-(7), including 40 CFR
51.308(g)(6) specifically, West Virginia only needed to show that it is
on track to achieve its RPGs in 2018. According to the monitored
visibility data presented in the State's progress report SIP submittal,
West Virginia is on the glidepath to meeting its RPGs by 2018, and the
Class I areas impacted by West Virginia sources are also on track to
meet their RPGs by 2018. In addition, as discussed in the West Virginia
progress report SIP submittal, many of the Federal and state measures
in West Virginia's regional haze SIP are just beginning to be
implemented and as such further emission reductions, particularly in
SO2 emissions, can be expected which will enable West
Virginia to continue to make further progress towards its RPGs for
2018.\5\ Therefore, EPA disagrees with the commenters' assertion that
more emissions reduction measures particularly from non-EGUs are needed
for West Virginia's regional haze SIP for Dolly Sods and Otter Creek
(or other Class I areas impacted by West Virginia emissions) to meet
RPGs.
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\5\ Specifically, EPA notes that additional SO2
reductions will likely result from full implementation of MATS at
West Virginia EGUs during this first implementation period, from
additional implementation and restrictions from full implementation
of CSAPR which EPA promulgated to replace CAIR and is expected to
lead to further EGU emission reductions, and from West Virginia's
implementation of the 2010 SO2 NAAQS. Many coal-fired
EGUs have also announced plans to deactivate in 2015 including
several plants in West Virginia, including Albright, Kammer, Kanawha
River, Phillip Sporn and Rivesville, as well as plants or individual
units at plants in states neighboring West Virginia including Glen
Lynn, Walter C. Beckjord, Muskingum River, Elrama, Clinch River,
Eastlake, Ashtabula, and Big Sandy. Additional SO2
reductions will likely result from the deactivations of these coal-
fired EGUs. For a listing of EGUs planning to deactivate in the
states which are part of PJM Interconnection, L.L.C., a regional
transmission organization which coordinates the movement of
wholesale electricity within states including West Virginia, see
http://www.pjm.com/planning/generation-deactivation/gd-summaries.aspx.
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Comment 4: The Commenter stated that EPA cannot approve West
Virginia's progress report as it relies on CAIR. The Commenter stated
CAIR was ``struck down'' by the D.C. Circuit as fundamentally flawed.
The Commenter also generally challenged the legality of using CAIR to
meet any regional haze requirements. The Commenter ``reiterated'' its
prior comments that CAIR is ill-suited to address regional haze and
that EPA cannot use a ``cap-and-trade'' program with yearly averaging
to address sources with hourly effects on Class I areas. The Commenter
stated the lack of source-specific BART is an impediment to the
implementation of the regional haze program. In addition, the Commenter
stated that EPA had previously issued a limited disapproval of West
Virginia's regional haze SIP due to reliance on CAIR. The Commenter
stated EPA had also previously said in a rulemaking on Florida's
regional haze SIP that the five year progress report would be the
appropriate time to address any necessary changes to reasonable
progress goal demonstrations and long term strategies. The Commenter
mentioned both West Virginia's regional haze SIP and progress report
SIP rely heavily on CAIR for modeling assumptions, controls, emission
estimates, and as an alternative to source-specific BART requirements
for EGUs. The Commenter mentioned EPA only addressed CAIR in the
proposed approval of the progress report when discussing the limited
disapproval of West Virginia's regional haze SIP and stated EPA's
approval of the West Virginia progress report was inconsistent with
prior EPA positions, unsupported by the facts and arbitrary and
capricious as a matter of law.
Response 4: EPA disagrees with the Commenter that EPA cannot
approve West Virginia's five year progress report because the progress
report relies on emission reductions from CAIR or because portions of
West Virginia's regional haze SIP relied on CAIR.\6\ On March 23, 2012
(77 FR 16937), EPA finalized a limited approval and limited disapproval
of West Virginia's June 18, 2008 regional haze SIP to address the first
implementation period for regional haze.\7\ There was a limited
disapproval of this SIP because of West Virginia's reliance on CAIR to
meet certain regional haze requirements.\8\ In our
[[Page 32024]]
SNPR, EPA described the litigation history and status of CAIR in great
detail, including the fact that CAIR was replaced with CSAPR (76 FR
48208 (August 8, 2011)) after West Virginia had developed and submitted
its regional haze SIP. CSAPR requires substantial reductions of
SO2 and NOX emissions from EGUs in 28 states in
the Eastern United States that significantly contribute to downwind
nonattainment of the 1997 PM2.5 and ozone NAAQS and 2006
PM2.5 NAAQS. On January 1, 2015, EPA sunset CAIR and began
implementing CSAPR after the D.C. Circuit lifted the stay on CSAPR
following the Supreme Court's decision upholding CSAPR.
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\6\ To address interstate transport of air pollution, CAIR
required certain states like West Virginia to reduce emissions of
SO2 and nitrogen oxides (NOX) that
significantly contribute to downwind nonattainment of the 1997 NAAQS
for PM2.5 and ozone. See 70 FR 25162 (May 12, 2005). CAIR
relied upon cap-and-trade programs to reduce SO2 and
NOX emissions and applied to 27 eastern states, including
West Virginia. EPA approved West Virginia's regulations implementing
CAIR as part of the Federally enforceable West Virginia SIP on
August 4, 2009. 74 FR 38536.
\7\ Although EPA gave limited approval to West Virginia's
regional haze SIP (77 FR 16932) due to West Virginia's reliance on
CAIR, a limited approval results in approval of the entire SIP
submittal, even of those parts that are deficient and prevent EPA
from granting a full approval pursuant to sections 301(a) and
110(k)(6) of the CAA and EPA's long-standing guidance. See
Processing of State Implementation Plan (SIP) Revisions, EPA
Memorandum from John Calcagni, Director, Air Quality Management
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (1992 Calcagni Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. Thus, the limited
approval status of West Virginia's regional haze SIP does not impact
EPA's approval of this five year progress report SIP in any way.
\8\ In 2008, the United States Court of Appeals for the District
of Columbia Circuit initially vacated CAIR, North Carolina v. EPA,
531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to
EPA without vacatur to preserve the environmental benefits provided
by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008). Therefore, EPA disagrees with the Commenter's
characterization that CAIR was ``struck down'' by the Court as the
D.C. Circuit has only remanded CAIR to EPA without vacatur. After
much litigation on CAIR and its replacement CSAPR as discussed in
our SNPR, EPA sunset CAIR in December 2014 and began implementing
CSAPR on January 1, 2015. See 79 FR 71663 (December 3, 2014)
(interim final rulemaking EPA issued an interim final rule to
clarify how EPA will implement CSAPR consistent with the Order from
D.C. Circuit order lifting the stay of CSAPR and tolling the rule's
deadlines).
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As explained in detail in the SNPR and here in summary fashion, EPA
does not believe that the status of CAIR or CSAPR affects the
approvability of West Virginia's progress report SIP for several
reasons. First, CAIR was in effect for the period of time addressed by
West Virginia's progress report (2008-2013). Therefore, West Virginia
appropriately evaluated and relied on CAIR reductions from EGUs of
significant emissions of NOX and SO2 to
demonstrate the State's progress towards meeting its RPGs.\9\ EPA's
intention in requiring the progress reports pursuant to 40 CFR
51.308(g) was for the states to demonstrate progress achieved during
the current implementation period addressed by the regional haze SIP.
Thus, West Virginia appropriately relied upon CAIR reductions for
demonstrating progress towards its RPGs from 2008-2013. And as
explained in the SNPR, given that CAIR was in place until recently, it
is appropriate to rely on CAIR emission reductions during this period
for purposes of assessing the adequacy of West Virginia's progress
report pursuant to 40 CFR 51.308(g) and (h).
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\9\ EPA discussed in the NPR the significance of reductions in
SO2 as West Virginia and VISTAS identified SO2
as the largest contributor pollutant to visibility impairment in
West Virginia specifically and in the VISTAS region generally.
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Second, the State's regional haze program now includes reliance on
CSAPR for SO2 and NOX reductions, at least
throughout the remainder of this first implementation period until
2018. EPA's June 7, 2012 FIP replaced West Virginia's reliance on CAIR
with reliance on CSAPR to meet certain regional haze requirements.
Because the Regional Haze Rule discusses requirements for
``implementation plans'' which are defined in the visibility program to
include approved SIPs or FIPs, EPA considered measures in its June 7,
2012 regional haze FIP as well as in the State's regional haze SIP in
assessing the State's progress report for 40 CFR 51.308(g) and (h). EPA
explained in the SNPR that the requirements of the regional haze
program are fully addressed in West Virginia through its SIP and the
FIP issued by EPA. As also discussed in the SNPR, EPA expects the
SO2 and NOX emissions reductions at EGUs in West
Virginia to continue through the remainder of the first implementation
period in 2018 due to implementation of CSAPR.
Finally, the Regional Haze Rule provides for continual evaluation
and assessment of a state's reasonable progress towards achieving the
national goal of natural visibility conditions. West Virginia has the
opportunity to reassess its RPGs and the adequacy of its regional haze
SIP, including reliance upon CSAPR for emission reductions from EGUs,
when it prepares and submits its second regional haze SIP to cover the
implementation period from 2018 through 2028 or when the State prepares
its next periodic progress report. However, as evaluated for this
progress report, emissions of SO2 from EGUs are presently
far below original projections for 2018, visibility data provided by
West Virginia show the Federal Class I areas impacted by West Virginia
sources are all on track to achieve their RPGs, and EPA expects
SO2 emission reductions in West Virginia to continue through
CSAPR and MATS and through expected EGU deactivations scheduled for
2015. These continued emission reductions will assist West Virginia in
making reasonable progress towards natural visibility conditions in
2064. As further measures will be needed to make continued progress
towards the national goal, West Virginia has the opportunity to include
such measures in subsequent SIPs for future implementation periods. See
Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C.
Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner,
57 F.3d 1122, 1123 (D.C. Cir. 1995)) (discussing that states have
primary responsibility for determining an emission reductions program
for its areas subject to EPA approval).
Thus, neither the status of CAIR (which has now sunset) nor CSAPR
(which is being implemented) impacts our decision to approve West
Virginia's progress report SIP. This SIP includes an adequate
discussion of the implementation of regional haze SIP measures--
including CAIR--and of the significant emission reductions achieved.
In addition, EPA disagrees with Commenter that EPA's approval of
West Virginia's progress report which relies on CAIR reductions is
inconsistent with EPA's prior actions. In fact, EPA has approved
redesignations of areas to attainment of the 1997 PM2.5
NAAQS in which states relied on CAIR as an ``enforceable measure.'' See
77 FR 76415 (December 28, 2012); 78 FR 59841 (September 30, 2013); and
78 FR 56168 (September 12, 2013).
Because EPA expects SO2 and NOX emissions
from EGUs to continue through CSAPR and other measures and because
future West Virginia regional haze SIP submissions due pursuant to 40
CFR 51.308(f) and (g) will continue to evaluate West Virginia's
progress towards natural conditions, EPA believes it is appropriate to
approve fully West Virginia's progress report as meeting requirements
of 40 CFR 51.308(g)(1)-(7) and (h) at this time. Thus, EPA disagrees
with the Commenter that EPA's approval of the West Virginia progress
report is inconsistent with EPA's prior position, unsupported by the
facts, or arbitrary and capricious as a matter of law.
Further, EPA disagrees with the Commenter's ``reiterated''
statements concerning the validity of using an emissions trading
program, such as CAIR or CSAPR, to meet regional haze requirements such
as BART. As EPA's 2012 review of the West Virginia regional haze SIP
explains, the State relied on CAIR to achieve significant reductions in
emissions to meet both the BART requirements and to address impacts
from West Virginia sources in Class I areas. 77 FR 16932. West
Virginia's reliance upon CAIR as an alternative to source-specific BART
at the time of the submittal of West Virginia's regional haze SIP in
2008 to EPA was supported by precedent from the D.C. Circuit as well as
EPA's regulations at 40 CFR 51.308(e). CAIR was specifically upheld as
an alternative to BART in accordance with the requirements of section
169A of the CAA by the D.C. Circuit in Utility Air Regulatory Group v.
EPA. 471 F.3d 1333 (D.C. Cir. 2006). The D.C. Circuit concluded that
the EPA's two-pronged test for determining whether an alternative
program achieves greater reasonable progress was a reasonable one and
also agreed with EPA that nothing in the CAA required the EPA to
``impose a separate technology mandate for sources whose emissions
affect Class I areas, rather than piggy-backing on solutions devised
under other statutory categories, where such solutions meet the
statutory requirements.'' Id. at 1340. See also Center for Energy and
Economic Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005)
(finding
[[Page 32025]]
reasonable EPA's interpretation of section 169A(b)(2) of the CAA as
requiring BART only as necessary to make reasonable progress). Thus,
EPA disagrees with the Commenter that EPA cannot use cap-and-trade
programs to address effects of sources in Class I areas and disagrees
that the use of alternatives to source-specific BART is an impediment
to states achieving reasonable progress as required by section 169A of
the CAA.
EPA also notes in general that the comments regarding CAIR as
adequate for regional haze requirements are beyond the scope of this
rulemaking action. In this rulemaking action, EPA is finalizing
approval of West Virginia's progress report SIP and did not propose to
find that participation in CSAPR or CAIR is an alternative to BART in
this rulemaking action. Moreover, EPA did not reopen discussions on the
CAIR or CSAPR provisions as they relate to BART in assessing the
progress report.\10\
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\10\ In a separate action, EPA found CSAPR is ``Better than
BART.'' See 76 FR 82219 (December 30, 2011) (proposal of CSAPR as
``Better than BART'') and 77 FR 33641 (June 7, 2012) (addressing
comments concerning CSAPR as a BART alternative in the final
action). EPA's responses to these comments can be found in Docket ID
No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.
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Finally, EPA also generally disagrees with the Commenter that EPA
did not discuss CAIR in EPA's NPR. EPA discussed CAIR, as well as
emission reductions from CAIR, when assessing West Virginia's five year
progress report as meeting requirements in 40 CFR 51.308(g)(1) and (2).
CAIR, as an EGU control strategy, was one measure from West Virginia's
regional haze SIP discussed in EPA's analysis of implementation of SIP
measures for 40 CFR 51.308(g)(1), and emission reductions of
SO2 and NOX from EGUs generally resulting from
implementation of CAIR are discussed in EPA's analysis of West
Virginia's progress report for 40 CFR 51.308(g)(2). See 79 FR at 11462-
11463. In addition, in EPA's SNPR, EPA discussed the litigation history
and status of CAIR and CSAPR and the effects of those programs on West
Virginia's regional haze SIP in detail and provided an opportunity for
comment on these issues. 80 FR at 12609-12611.
In summary, EPA does not view West Virginia's reliance through
December 2014 upon CAIR for BART or for any other part of the regional
haze SIP as a reason to disapprove the West Virginia progress report.
Comment 5: The Commenter expressed support for the maintenance of
the IMPROVE visibility monitoring network. The Commenter stated it
would like funding to continue for this monitoring network and would
like EPA to advocate for funding of this network. The Commenter also
stated its support for continuing funding for VISTAS' work for
additional ``understanding of source contributions to PM2.5
mass and visibility impairment or continued operation of VISTAS Web
site.''
Response 5: EPA thanks the Commenter for expressing its support for
the IMPROVE monitoring network and for the work by VISTAS. In its
progress report SIP, West Virginia summarized the existing visibility
monitoring network at Dolly Sods and Otter Creek and discussed the
State's intended continued reliance on the IMPROVE monitoring network
for its visibility planning. West Virginia concluded that the existing
network is adequate and that no modifications to visibility monitoring
strategy were necessary. In EPA's NPR, EPA concluded that West Virginia
adequately addressed the sufficiency of its monitoring strategy as
required by 40 CFR 51.308(g)(7), and EPA accordingly proposed approval
of the West Virginia progress report. Additional funding concerns for
VISTAS as raised by the Commenter are beyond the scope of this
rulemaking.
Comment 6: The SNPR Commenter stated that EPA's reasons to approve
the progress report are sound and stated it supported approval of the
progress report SIP. The SNPR Commenter stated that CAIR was in the
West Virginia SIP and in effect and enforceable throughout the period
relevant to West Virginia's assessment of progress. The SNPR Commenter
also agreed with EPA that EPA may consider a FIP as well as a SIP in
evaluating a regional haze program under 40 CFR 51.308(g)(6) and (h).
Finally, the SNPR Commenter stated EPA had a sound basis to approve the
West Virginia progress report SIP based on the status of CAIR and CSAPR
and stated reliance on CSAPR for further progress toward applicable
RPGs in West Virginia and other affected states was appropriate as
CSAPR has taken effect. The SNPR Commenter noted, however, that EPA had
no valid basis for its limited disapproval of West Virginia's regional
haze SIP based on West Virginia's reliance upon CAIR as a BART
alternative.
Response 6: EPA appreciates the supportive comments from the SNPR
Commenter and its agreement with EPA's analysis in the NPR and SNPR.
The SNPR Commenter's statement regarding EPA's prior limited approval
of West Virginia's regional haze SIP is beyond the scope of this
rulemaking and therefore no further response is provided.
IV. Final Action
EPA is approving West Virginia's regional haze five-year progress
report SIP revision, submitted on April 30, 2013, as meeting the
applicable regional haze requirements as set forth in 40 CFR 51.308(g)
and 51.308(h).
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using
[[Page 32026]]
practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 4, 2015. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action.
This action to approve West Virginia's regional haze five-year
progress report SIP revision may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.
Dated: May 26, 2015.
William C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart XX--West Virginia
0
2. In Sec. 52.2520, the table in paragraph (e) is amended by adding an
entry for Regional Haze Five-Year Progress Report at the end of the
table to read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(e) * * *
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State
Name of non-regulatory SIP revision Applicable geographic submittal EPA approval date Additional
area date explanation
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* * * * * * *
Regional Haze Five-Year Progress Statewide............... 4/30/13 6/5/15 [Insert Federal
Report. Register Citation].
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[FR Doc. 2015-13801 Filed 6-4-15; 8:45 am]
BILLING CODE 6560-50-P