Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Infrastructure Requirements for the 2015 Ozone Standard

CourtEnvironmental Protection Agency
Citation84 FR 69349
Published date18 December 2019
SectionProposed rules
Record Number2019-27274
Federal Register, Volume 84 Issue 243 (Wednesday, December 18, 2019)
[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
                [Proposed Rules]
                [Pages 69349-69351]
                From the Federal Register Online via the Government Publishing Office []
                [FR Doc No: 2019-27274]
                40 CFR Part 52
                [EPA-R03-OAR-2019-0103; FRL-10003-48-Region 3]
                Approval and Promulgation of Air Quality Implementation Plans;
                West Virginia; Infrastructure Requirements for the 2015 Ozone Standard
                AGENCY: Environmental Protection Agency (EPA).
                ACTION: Proposed rule.
                SUMMARY: The Environmental Protection Agency (EPA) is proposing to
                approve a state implementation plan (SIP) revision submittal from the
                State of West Virginia pursuant to the Clean Air Act (CAA). Whenever
                new or revised national ambient air quality standards (NAAQS or
                standards) are promulgated, the CAA requires states to submit a plan
                for the implementation, maintenance, and enforcement of such NAAQS. The
                plan is required to address basic program elements, including, but not
                limited to, regulatory structure, monitoring, modeling, legal
                [[Page 69350]]
                and adequate resources necessary to assure attainment and maintenance
                of the standards. These elements are referred to as infrastructure
                requirements. West Virginia made a submittal addressing most of the
                infrastructure requirements for the 2015 ozone NAAQS and later
                supplemented the submittals to address the interstate transport
                elements; EPA is not proposing any action on the interstate transport
                elements at this time.
                DATES: Written comments must be received on or before January 17, 2020.
                ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
                OAR-2019-0103 at, or via email to
                [email protected]. For comments submitted at,
                follow the online instructions for submitting comments. Once submitted,
                comments cannot be edited or removed from For either
                manner of submission, 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. 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
                FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, Planning &
                Implementation Branch (3AD30), Air & Radiation Division, U.S.
                Environmental Protection Agency, Region III, 1650 Arch Street,
                Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
                2021. Mr. Schulingkamp can also be reached via electronic mail at
                [email protected].
                SUPPLEMENTARY INFORMATION: On October 26, 2015, EPA revised both the
                primary and secondary NAAQS for ozone based on 8-hour average
                concentrations to 0.070 parts per million (ppm). See 80 FR 65292.
                Pursuant to CAA section 110(a)(1), states are required to submit SIPs
                meeting the applicable requirements of section 110(a)(2) within three
                years after promulgation of a new or revised NAAQS or within such
                shorter period as EPA may prescribe. Section 110(a)(2) requires states
                to address basic SIP elements such as requirements for monitoring,
                basic program requirements and legal authority that are designed to
                assure attainment and maintenance of the NAAQS. Section 110(a) imposes
                the obligation upon states to make a SIP submission to EPA for a new or
                revised NAAQS, but the contents of that submission may vary depending
                upon the facts and circumstances. In particular, the data and
                analytical tools available at the time the state develops and submits
                the SIP for a new or revised NAAQS affects the content of the
                submission. The content of such SIP submissions may also vary depending
                upon what provisions the state's existing SIP already contains.
                 In the case of the 2015 ozone NAAQS, states typically have met the
                basic program elements required in section 110(a)(2) through earlier
                SIP submissions in connection with the 1997 and 2008 ozone NAAQS.
                Section 110(a)(1) of the CAA provides the procedural and timing
                requirements for SIPs, while section 110(a)(2) lists specific elements
                that states must meet for infrastructure SIP requirements related to a
                newly established or revised NAAQS. As mentioned earlier, these
                requirements include basic SIP elements such as requirements for
                monitoring, basic program requirements and legal authority that are
                designed to assure attainment and maintenance of the NAAQS.
                I. Background
                 On September 14, 2018, WVDEP submitted a revision to its SIP to
                satisfy the requirements of CAA section 110(a)(2) for the 2015 ozone
                NAAQS (hereafter the ``2015 Infrastructure SIP''). This submittal
                addressed the following elements of CAA section 110(a)(2): (A), (B),
                (C), (D)(i)(II), (E), (F), (G), (H), (J), (K), (L), and (M). This
                submittal did not address CAA section 110(a)(2)(D)(i)(I) (interstate
                transport), however, the state committed to submitting a supplemental
                SIP revision to fully address this requirement. On February 4, 2019,
                the WVDEP supplemented its 2015 Infrastructure SIP to address the
                interstate transport elements of CAA section 110(a)(2)(D)(i)(I)
                (hereafter the ``2015 Transport SIP''). At this time, EPA is not taking
                action on West Virginia's 2015 Transport SIP and will address that
                submittal in a later separate action.
                II. How EPA Evaluates Infrastructure SIPs
                 Pursuant to CAA section 110(a), states must provide SIP revisions
                addressing relevant infrastructure SIP elements from section
                110(a)(2)(A) through (M) or provide certification that the existing SIP
                contains provisions adequately addressing these elements for the 2015
                ozone NAAQS.
                 EPA reviews each infrastructure SIP submission for compliance with
                the applicable statutory provisions of CAA section 110(a)(2), as
                appropriate. Historically, EPA has elected to use non-binding guidance
                documents to make recommendations for states' development and EPA
                review of infrastructure SIPs, in some cases conveying needed
                interpretations on newly arising issues, and in others conveying
                interpretations that have already been developed and applied to
                individual SIP submissions for particular elements. EPA guidance
                applicable to these infrastructure SIP submissions is embodied in
                several documents.\1\ Unless otherwise noted below, EPA is following
                that existing approach in acting on this submission. In addition, in
                the context of acting on such infrastructure submissions, EPA evaluates
                the submitting state's SIP for facial compliance with statutory and
                regulatory requirements, not for the state's implementation of its
                SIP.\2\ EPA has other authority to address any issues concerning a
                state's implementation of the rules, regulations, consent orders, etc.
                that comprise its SIP.
                 \1\ EPA explains its approach in its September 13, 2013
                Infrastructure SIP Guidance (available at, as well as in numerous agency actions, including EPA's prior
                action on West Virginia's infrastructure SIP to address the 2008
                ozone NAAQS (79 FR 19001 (April 7, 2014)).
                 \2\ See Montana Environ. Info. Center v. EPA, 902 F.3d 971 (9th
                Cir. 2018).
                III. EPA's Analysis
                 West Virginia's 2015 Infrastructure SIP submittal addressed the
                following infrastructure elements, or portions thereof, for the 2015
                ozone NAAQS: CAA section 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E),
                (F), (G), (H), (J), (K), (L), and (M). The 2015 Infrastructure SIP
                submittal did not address element (I) which pertains to the
                nonattainment requirements of part D, title I of the CAA, since this
                element is not required to be submitted by the 3-year submission
                deadline of section 110(a)(1) and will be addressed in a separate
                 EPA has analyzed the 2015 Infrastructure SIP submission and is
                [[Page 69351]]
                proposing to make a determination that the submittal meets the
                requirements of the identified elements. A detailed summary of EPA's
                review and rationale for approving West Virginia's submittal may be
                found in the technical support document (TSD) for this proposed
                rulemaking action which is available online at,
                docket number EPA-R03-OAR-2019-0103.
                IV. Proposed Action
                 EPA is proposing to approve West Virginia's September 14, 2018
                submittal which provides the basic program elements, or portions
                thereof, specified in section 110(a)(2)(A), (B), (C), (D)(i)(II),
                (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) necessary to
                implement, maintain, and enforce the 2015 ozone NAAQS. This proposed
                rulemaking action does not include action on section 110(a)(2)(I) which
                pertains to the nonattainment planning requirements of part D, title I
                of the CAA, because this element is not required to be submitted by the
                3-year submission deadline of section 110(a)(1) of the CAA and will be
                addressed in a separate process. This proposed rulemaking action also
                does not address section 110(a)(2)(D)(i)(I) which pertains to the
                interstate transport of emissions; EPA will propose action on West
                Virginia's 2015 Transport SIP in a later separate action. EPA is
                soliciting public comments on the issues discussed in this document
                which will be considered before taking final rulemaking action.
                V. 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, 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 proposed 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,
                 Is not an Executive Order 13771 (82 FR 9339, February 2,
                2017) regulatory 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 (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 practicable and legally permissible methods, under
                Executive Order 12898 (59 FR 7629, February 16, 1994).
                 In addition, this proposed rule, pertaining to West Virginia's
                section 110(a)(2) infrastructure requirements for the 2015 ozone NAAQS,
                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.
                List of Subjects in 40 CFR Part 52
                 Environmental protection, Air pollution control, Incorporation by
                reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
                Volatile organic compounds.
                 Authority: 42 U.S.C. 7401 et seq.
                 Dated: December 12, 2019.
                Diana Esher,
                Acting Regional Administrator, Region III.
                [FR Doc. 2019-27274 Filed 12-17-19; 8:45 am]
                 BILLING CODE 6560-50-P

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