[Federal Register Volume 83, Number 57 (Friday, March 23, 2018)]
[Rules and Regulations]
[Pages 12677-12680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05877]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0413; FRL-9975-88--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; 2015 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to the State of West Virginia state implementation plan
(SIP). The revisions update the effective date by which the West
Virginia regulations incorporate by reference the national ambient air
quality standards (NAAQS), additional monitoring methods, and
additional equivalent monitoring methods. This update will effectively
add the following to the West Virginia SIP: The 2015 ozone NAAQS,
monitoring reference and equivalent methods pertaining to fine
particulate matter (PM2.5), Carbon Monoxide (CO), and course
particulate matter (PM10), and it will revise the ozone
monitoring season, the Federal Reference Method (FRM), the Federal
Equivalent Method (FEM), and the Photochemical Assessment Monitoring
Stations (PAMS) network. The SIP revision will also change a reference
from the ``West Virginia Department of Environmental Protection,'' to
the ``Division of Air Quality.'' EPA is approving these revisions in
accordance with the requirements of the Clean Air Act (CAA).
DATES: This final rule is effective on April 23, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2017-0413. All documents in the docket are listed on
the http://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
http://www.regulations.gov, or please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, (215) 814-2021,
or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On June 13, 2017, the State of West Virginia through the West
Virginia Department of Environmental Protection (WVDEP) submitted a
formal revision to West Virginia's SIP pertaining to amendments of
Legislative Rule, 45 CSR 8--Ambient Air Quality Standards. The SIP
revision consists of revising the effective date of the incorporation
by reference of 40 CFR parts 50 and 53.
II. Summary of SIP Revision and EPA Analysis
West Virginia has submitted this SIP revision to update the State's
incorporation by reference of 40 CFR part 50, which contains the
Federal NAAQS, and 40 CFR part 53, which contains the ambient air
monitoring reference methods and equivalent reference methods.
Currently, the version of 45 CSR 8 in the West Virginia SIP
incorporates by reference 40 CFR parts 50 and 53 as effective on June
1, 2013; this SIP revision will update the effective date to June 1,
2016.
In the June 13, 2017 SIP submittal, WVDEP submitted amendments to
the legislative rule which include the following changes: To section
45-8-1 (General), the filing and effective dates are changed to reflect
the update of the legislative rule; to section 45-8-3 (Adoption of
Standards), the effective dates for the incorporation by reference of
40 CFR part 50 and part 53 are changed; to section 45-8-4
(Inconsistency Between Rules), the reference to the ``West Virginia
Department of Environmental Protection,'' is changed to the ``Division
of Air Quality.'' West Virginia has amended 45 CSR 8 to revise the
filing
[[Page 12678]]
and effective dates of the rule to May 15, 2017 and June 1, 2017
respectively. The effective date of the incorporation by reference of
40 CFR parts 50 and 53 changed from June 1, 2013 to June 1, 2017. EPA
finds the revised version of 45 CSR 8 with new effective dates
incorporating by reference 40 CFR part 50 and part 53, as well as the
changes to the reference of the state air agency, are in accordance
with requirements in section 110 of the CAA.\1\
---------------------------------------------------------------------------
\1\ This action, which approves West Virginia's rules
incorporating by reference the NAAQS as of a certain date, is not
affected by the recent decision in South Coast Air Quality Mgmt.
Dist. v. EPA, No. 15-1115 (D.C. Cir. Feb. 16, 2018).
---------------------------------------------------------------------------
This update will effectively add the following to the West Virginia
SIP: The 2015 ozone NAAQS, monitoring reference and equivalent methods
pertaining to PM2.5, CO, and PM10, and it will
revise the ozone monitoring season to March 1st through October 31st,
the FRM, the FEM, and the PAMS network.
On October 16, 2017 (82 FR 47981 and 82 FR48033), EPA
simultaneously published a notice of proposed rulemaking (NPR) and a
direct final rule (DFR) for the State of West Virginia approving the
SIP revision. EPA received five comments on the rulemaking and withdrew
the DFR prior to the effective date of December 15, 2017.
III. Response to Comments
During the comment period, EPA received several anonymous comments
on EPA's rulemaking. EPA is responding to comments submitted on the
proposed revision to the West Virginia SIP specific to this action. All
other comments received were either supportive of or not specific to
this action and thus are not addressed here.
Comment #1: The commenter expressed a desire for EPA to,
``[s]uspend or rescind the [past] admin rule.'' The commenter then
continued with statements not specific to this action by copying
sections from EPA's ``Policy Assessment for the Review of the Primary
National Ambient Air Quality Standard for Sulfur Oxides, External
Review Draft'' (August 2017, EPA-452/P-17-003) (Draft PA) without
providing any specific argument.
Response #1: The comment lacks any specifics regarding what action
EPA should take regarding our proposal to incorporate by reference for
the West Virginia SIP 45 CSR 8 which incorporates all NAAQS. Based on
the context of the comment, it appears the comment is requesting that
EPA suspend or rescind the 2010 Sulfur Dioxide (SO2) NAAQS
due to a lack of available information.
EPA is not in this action revising any SO2 NAAQS nor any
NAAQS and as such the references to the Draft PA are irrelevant. In
this action, EPA is approving, in accordance with CAA section 110, West
Virginia's request to incorporate by reference NAAQS EPA has previously
promulgated in separate unrelated rulemakings. As the comment regarding
suspending or rescinding prior ``admin'' rules such as the NAAQS is not
germane to this rulemaking, EPA provides no further response.
Comment #2: A second comment stated that EPA should not add the
2015 ozone standard to any state's SIP as the Administrator has
publicly stated the he intends to repeal the ozone standard. The
commenter believes that his announcement can be interpreted as a
promulgation by the Agency, and EPA should not act until the review is
completed. The commenter also stated that EPA must hold off on any
ozone action until a court review is completed.
Response #2: EPA disagrees with the commenter's assertion that the
Agency has promulgated a repeal of the 2015 ozone NAAQS through public
announcement. Until the Agency, through public notice and rulemaking,
revises any NAAQS, including the 2015 ozone NAAQS, the NAAQS remain in
place and states may seek to incorporate such NAAQS into their SIPs
under CAA section 110. In 45 CSR 8, West Virginia updated the effective
date of its incorporation by reference of the most recent version of
the Code of Federal Regulations (CFR) so that West Virginia could
incorporate by reference in its SIP all updated EPA NAAQS. While
judicial action is pending relating to implementation of the 2015 ozone
NAAQS, nothing prohibits a state like West Virginia from incorporating
by reference the 2015 ozone NAAQS into its SIP.
Comment #3: The final comment expressed a desire for EPA to allow
the state to incorporate the Federal standards (i.e., NAAQS) on an
ongoing basis so that the State does not have to expend taxpayer
dollars and resources each time EPA updates 40 CFR parts 50 and 53 with
new or revised NAAQS. The commenter also expressed a desire for EPA to,
``slow down the regulatory changes and allow states to meet the current
standards before imposing new burdens on the states.''
Response #3: Nothing in the CAA requires states to incorporate the
Federal standards each time EPA updates a NAAQS in 40 CFR parts 50 and
53. West Virginia has decided to incorporate the NAAQS in 45 CSR 8 that
are effective as of a certain date. West Virginia's action is
responsive to state concerns and limitations and is consistent with the
CAA, thus this SIP submittal can be approved in this final action.
IV. Final Action
EPA is approving the amendments to Legislative Rule, 45 CSR 8--
Ambient Air Quality Standards, into the West Virginia SIP pursuant to
section 110 of the CAA.
V. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the update to West Virginia's Legislative Rule,
45 CSR 8, as effective on June 1, 2017. EPA has made, and will continue
to make, these materials generally available through
www.regulations.gov and at the EPA Region III Office (please contact
the person identified in the For Further Information Contact section of
this preamble for more information). Therefore, these materials have
been approved by EPA for inclusion in the SIP, have been incorporated
by reference by EPA into that plan, are fully federally enforceable
under sections 110 and 113 of the CAA as of the effective date of the
final rulemaking of EPA's approval, and will be incorporated by
reference by the Director of the Federal Register in the next update of
the SIP compilation.\2\
---------------------------------------------------------------------------
\2\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VI. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory
[[Page 12679]]
action because SIP approvals are exempted under Executive Order 12866.
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 (Public Law 104-4);
does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 22, 2018. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action, to approve West Virginia's SIP revisions to update
of the effective date by which the State regulations incorporate by
reference the Federal NAAQS, additional monitoring methods, and
additional equivalent monitoring methods, which effectively adds the
2015 ozone NAAQS and ambient air monitoring reference and equivalent
methods pertaining to PM2.5, PM10, and CO, and
changing the reference to the state air agency, 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, Carbon monoxide,
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: March 13, 2018.
Cecil Rodrigues,
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 entitled ``EPA-Approved Regulations in
the West Virginia SIP'' in paragraph (c) is amended by revising the
entries for sections 45-8-1 through 45-8-4 to read as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the West Virginia SIP
----------------------------------------------------------------------------------------------------------------
Additional
State citation [chapter 16-20 or State explanation/
45 CSR] Title/subject effective EPA approval date citation at 40 CFR
date 52.2565
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[45 CSR] Series 8 Ambient Air Quality Standards
----------------------------------------------------------------------------------------------------------------
Section 45-8-1................... General............. 6/1/17 3/23/18, [Insert Filing and effective
Federal Register dates are revised.
Citation].
Section 45-8-2................... Definitions......... 6/1/17 3/23/18, [Insert Previous Approval 9/
Federal Register 22/2014.
Citation].
Section 45-8-3................... Adoption of 6/1/17 3/23/18, [Insert Effective date is
Standards. Federal Register revised.
Citation].
Section 45-8-4................... Inconsistency 6/1/17 3/23/18, [Insert Replaced ``West
Between Rules. Federal Register Virginia Department
Citation]. of Environmental
Protection'' with
``Division of Air
Quality.''
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 12680]]
* * * * *
[FR Doc. 2018-05877 Filed 3-22-18; 8:45 am]
BILLING CODE 6560-50-P