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

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]