Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations 10827 

addresses that we checked after 

receiving the electronically submitted 

comment. Because the commenter 

anonymously submitted the 

electronically submitted comment, 

contacting the commenter to inquire 

about location of the comment 

submitted by mail was not possible. 

II. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, the EPA’s role is to 

approve state choices, provided that 

they meet the criteria of the Clean Air 

Act. 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 

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, 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, the SIP is not approved to 

apply on any Indian reservation land or 

in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

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). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by April 26, 2021. 

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 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, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: February 11, 2021. 

Debra Thomas, 

Acting Regional Administrator, Region 8. 

[FR Doc. 2021–03252 Filed 2–22–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2020–0194; FRL–10017– 

11–Region 3] 

Air Plan Approval; West Virginia; 1997 

8-Hour Ozone National Ambient Air 

Quality Standard Second Maintenance 

Plan for the West Virginia Portion for 

the Charleston, West Virginia Area 

Comprising Kanawha and Putnam 

Counties 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a state 

implementation plan (SIP) revision 

submitted by the West Virginia 

Department of Environmental Protection 

(WVDEP) of the State of West Virginia. 

This revision pertains to West Virginia’s 

plan for maintaining the 1997 8-hour 

ozone national ambient air quality 

standard (NAAQS) for the Charleston 

Area (comprising Kanawha and Putnam 

Counties). The EPA is approving these 

revisions to the West Virginia SIP in 

accordance with the requirements of the 

Clean Air Act (CAA). 

DATES: This final rule is effective on 

March 25, 2021. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2020–0194. All 

documents in the docket are listed on 

the https://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 https://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Keila M. Paga ́n-Incle, 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) 

814–2926. Ms. Paga ́n-Incle can also be 

reached via electronic mail at paganincle.keila@epa.gov. 

SUPPLEMENTARY INFORMATION: 

10828 Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations 

1 882 F.3d 1138 (DC Cir. 2018). 

2 ‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air Quality 

Management Division, September 4, 1992 (Calcagni 

Memo). 

3See ‘‘Limited Maintenance Plan Option for 

Nonclassifiable Ozone Nonattainment Areas’’ from 

Sally L. Shaver, Office of Air Quality Planning and 

Standards (OAQPS), dated November 16, 1994; 

‘‘Limited Maintenance Plan Option for 

Nonclassifiable CO Nonattainment Areas’’ from 

Joseph Paisie, OAQPS, dated October 6, 1995; and 

‘‘Limited Maintenance Plan Option for Moderate 

PM10 Nonattainment Areas’’ from Lydia Wegman, 

OAQPS, dated August 9, 2001. 

4The ozone design value for a monitoring site is 

the 3-year average of the annual fourth-highest daily 

maximum 8-hour average ozone concentrations. 

The design value for an ozone nonattainment area 

is the highest design value of any monitoring site 

in the area. 

I. Background 

On June 29, 2020 (85 FR 38816), EPA 

published a notice of proposed 

rulemaking (NPRM) for the State of 

West Virginia. In the NPRM, EPA 

proposed approval of West Virginia’s 

plan for maintaining the 1997 8-hour 

ozone NAAQS through August 10, 2026, 

in accordance with CAA section 175A. 

The formal SIP revision was submitted 

by WVDEP on December 10, 2019. 

II. Summary of SIP Revision and EPA 

Analysis 

On July 11, 2006 (71 FR 39001, 

effective August 10, 2006), EPA 

approved a redesignation request (and 

maintenance plan) from WVDEP for the 

Charleston Area. Per CAA section 

175A(b), at the end of the eighth year 

after the effective date of the 

redesignation, the state must also 

submit a second maintenance plan to 

ensure ongoing maintenance of the 

standard for an additional 10 years, and 

in South Coast Air Quality Management 

District v. EPA,1 the D.C. Circuit held 

that this requirement cannot be waived 

for areas, like the Charleston Area, that 

had been redesignated to attainment for 

the 1997 8-hour ozone NAAQS prior to 

revocation and that were designated 

attainment for the 2008 ozone NAAQS. 

CAA section 175A sets forth the criteria 

for adequate maintenance plans. In 

addition, EPA has published 

longstanding guidance that provides 

further insight on the content of an 

approvable maintenance plan, 

explaining that a maintenance plan 

should address five elements: (1) An 

attainment emissions inventory; (2) a 

maintenance demonstration; (3) a 

commitment for continued air quality 

monitoring; (4) a process for verification 

of continued attainment; and (5) a 

contingency plan.2 WVDEP’s December 

10, 2019 SIP submittal fulfills West 

Virginia’s obligation to submit a second 

maintenance plan and addresses each of 

the five necessary elements. 

As discussed in the June 29, 2020, 

NPRM, consistent with longstanding 

EPA’s guidance,3 areas that meet certain 

criteria may be eligible to submit a 

limited maintenance plan (LMP) to 

satisfy one of the requirements of CAA 

section 175A. Specifically, states may 

meet CAA section 175A’s requirements 

to ‘‘provide for maintenance’’ by 

demonstrating that an area’s design 

values 4 are well below the NAAQS and 

that it has had historical stability 

attaining the NAAQS. EPA evaluated 

WVDEP’s December 10, 2019 submittal 

for consistency with all applicable EPA 

guidance and CAA requirements. EPA 

found that the submittal met CAA 

Section 175A and all CAA 

requirements, and proposed approval of 

the LMP for the Charleston Area 

(comprising Kanawha and Putnam 

Counties) as a revision to the West 

Virginia SIP. The effect of this action 

makes certain commitments related to 

the maintenance of the 1997 8-hour 

ozone NAAQS federally enforceable as 

part of the West Virginia SIP. 

Other specific requirements of 

WVDEP’s December 10, 2019 submittal 

and the rationale for EPA’s proposed 

action are explained in the NPRM and 

will not be restated here. 

III. EPA’s Response to Comments 

Received 

EPA received three comments on the 

June 29, 2020 NPRM. All comments 

received are in the docket for this 

rulemaking action. A summary of the 

comments and EPA’s responses is 

provided herein. 

Comment 1: The commenter asserts 

that the LMP should not be approved 

because of EPA’s reliance on the Air 

Quality Modeling Technical Support 

Document (TSD) that was developed for 

EPA’s regional transport rulemaking. 

The commenter contends that: (1) The 

TSD shows maintenance of the area for 

three years and not 10 years; (2) the 

modeling was performed for transport 

purposes across state lines and not to 

show maintenance of the NAAQS; (3) 

the modeling was performed for the 

2008 and 2015 ozone NAAQS and not 

the 1997 ozone NAAQS; (4) the TSD has 

been ‘‘highly contested’’ by 

environmental groups and that ‘‘other 

states contend EPA’s modeling as 

flawed;’’ and (5) the TSD does not 

address a recent court decision that 

threw out EPA’s modeling ‘‘because it 

modeled to the wrong attainment 

year. . . .’’ The commenter asserts that 

the four specific issues it raises with 

respect to the modeling means that the 

TSD is ‘‘flawed, illegal, [and] is being 

used improperly for the wrong 

purpose. . . .’’ The commenter states 

that ‘‘EPA must retract its reliance on 

the modeling for the purposes of this 

maintenance plan and must find some 

other way of showing continued 

maintenance of the 1997 ozone 

NAAQS.’’ 

Response 1: EPA does not agree with 

the commenter that the approval of 

West Virginia’s second maintenance 

plan is not appropriate. The commenter 

raises concerns about West Virginia and 

EPA’s citation of air quality modeling, 

but the commenter ignores that EPA’s 

primary basis for finding that West 

Virginia has provided for maintenance 

of the 1997 8-hour ozone NAAQS in the 

Charleston Area is the State’s 

demonstration that the criteria for a 

limited maintenance plan has been met. 

See 85 FR 38816, June 29, 2020. 

Specifically, as stated in the NPRM, for 

decades EPA has interpreted the 

provision in CAA section 175A that 

requires states to ‘‘provide for 

maintenance’’ of the NAAQS to be 

satisfied where areas demonstrate that 

design values are and have been stable 

and well below the NAAQS—e.g., at 

85% of the standard, or in this case at 

or below 0.071 ppm. EPA calls such 

demonstration a ‘‘limited maintenance 

plan.’’ 

The modeling cited by the commenter 

was referenced in West Virginia’s 

submission and as part of EPA’s 

proposed approval as supplementary 

supporting information, and we do not 

agree that the commenter’s concerns 

about relying on that modeling are 

warranted. The commenter contends 

that the modeling only goes out three 

years (to 2023) and it needs to go out to 

10 years, and therefore may not be 

relied upon. However, the air quality 

modeling was only relied upon by EPA 

to provide additional support to 

indicate that the area is expected to 

continue to attain the NAAQS during 

the relevant period. As noted above, 

West Virginia primarily met the 

requirement to demonstrate 

maintenance of the NAAQS by showing 

that they met the criteria for a limited 

maintenance plan, rather than by 

modeling or projecting emissions 

inventories out to a future year. We also 

do not agree that the State is required 

to demonstrate maintenance for 10 

years; CAA section 175A requires the 

State to demonstrate maintenance 

through the 20th year after the area is 

redesignated, which in this case is 2026. 

We also disagree with the 

commenter’s contention that because 

the air quality modeling was performed 

to analyze the transport of pollution 

Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations 10829 

5Wisconsin, 938 F.3d 303 (D.C. Cir. 2019). 

6Wisconsin, 938 F.3d at 313. 

7Wisconsin, 938 F.3d at 323–331. 

across state lines with respect to other 

ozone NAAQS, it cannot be relied upon 

in this action. We acknowledge that the 

air quality modeling at issue was 

performed as part of EPA’s efforts to 

address interstate transport pollution 

under CAA section 110(a)(2)(D)(i)(I). 

However, the purpose of the air quality 

modeling is fully in keeping with the 

question of whether West Virginia is 

expected to maintain the NAAQS. The 

air quality modeling identifies which air 

quality monitors in the United States are 

projected to have problems attaining or 

maintaining the 2008 and 2015 NAAQS 

for ozone in 2023. Because the air 

quality modeling results simply provide 

projected ozone concentration design 

values, which are expressed as threeyear averages of the annual fourth high 

8-hour daily maximum ozone 

concentrations, the modeling results are 

useful for analyzing attainment and 

maintenance of any of the ozone 

NAAQS that are measured using this 

averaging time; in this case, the 1997, 

2008 and 2015 ozone NAAQS. The only 

difference between the three standards 

is stringency. Taking the Charleston 

Area’s most recent certified design value 

as of the proposal (i.e., for the years 

2016–2018), the area’s design value was 

0.067 parts per million (ppm). What we 

can discern from this is that the area is 

meeting the 1997 ozone NAAQS of 

0.080 ppm, the 2008 ozone NAAQS of 

0.075 ppm, and the 2015 ozone NAAQS 

of 0.070 ppm. The same principle 

applies to projected design values from 

the air quality modeling. In this case, 

the interstate transport modeling 

indicated that in 2023, the Charleston 

Area’s design value is projected to be 

0.060 ppm, which is again, well below 

all three standards. The fact that the air 

quality modeling was performed to 

indicate whether the area will have 

problems attaining or maintaining the 

2015 ozone NAAQS (i.e., 0.070 ppm) 

does not make the modeling less useful 

for determining whether the area will 

also meet the less stringent revoked 

1997 standard (i.e., 0.080 ppm). 

The commenter asserts that many 

groups have criticized EPA’s transport 

modeling, alleging that the agency used 

improper emissions inventories, 

incorrect contribution thresholds, wrong 

modeling years, or that EPA has not 

accounted for local situations or 

reductions that occurred after the 

inventories were established. The 

commenter also alleges that EPA should 

not rely on its modeling because it ‘‘fails 

to stand up to the recent court 

decisions,’’ citing the Wisconsin v. EPA 

D.C. Circuit decision.5 EPA disagrees 

that the existence of criticisms of the 

agency’s air quality modeling render it 

unreliable, and we also do not agree that 

anything in recent court decisions, 

including Wisconsin v. EPA, suggests 

that EPA’s air quality modeling is 

technically flawed. We acknowledge 

that the source apportionment air 

quality modeling runs cited by the 

commenter have been at issue in various 

legal challenges to EPA actions, 

including the Wisconsin v. EPA case. 

However, in that case, the only flaw in 

EPA’s air quality modeling identified by 

the D.C. Circuit was the fact that its 

analytic year did not align with the 

attainment date found in CAA section 

181.6 Contrary to the commenter’s 

suggestion, the D.C. Circuit upheld 

EPA’s air quality modeling with respect 

to the many technical challenges raised 

by petitioners in the Wisconsin case.7

We therefore think reliance on the 

interstate transport air quality modeling 

as supplemental support for showing 

that the Charleston Area will maintain 

the 1997 8-hour ozone NAAQS through 

the end of its 20th-year maintenance 

period is appropriate. 

Comment 2: The commenter asserts 

that EPA should disapprove this 

maintenance plan because EPA should 

not allow states to rely on emission 

programs such as the Cross-State Air 

Pollution rule (CSAPR) to demonstrate 

maintenance for the 1997 ozone 

NAAQS. The commenter alleges that 

‘‘the CSAPR and CSAPR Update and 

CSAPR Close-out rules were vacated 

entirely’’ by multiple courts and ‘‘are 

now illegal programs providing no 

legally enforceable emission reductions 

to any states formerly covered by the 

rules.’’ The commenter also asserts that 

nothing restricts ‘‘big coal and gas 

power plants from emitting way beyond 

there (sic) restricted amounts.’’ The 

commenter does allow that ‘‘If EPA can 

show that continued maintenance 

without these rules is possible for the 

next 10 years then that would be OK but 

as the plan stands it relies on these 

reductions and must be disapproved.’’ 

Response 2: The commenter has 

misapprehended the factual 

circumstances regarding these interstate 

transport rules. Every rule cited by the 

commenter that achieves emission 

reductions from electric generating units 

(EGUs or power plants)—i.e., the CrossState Air Pollution Rule and the CSAPR 

Update—remains in place and 

continues to ensure emission reductions 

of nitrogen oxides (NOX) and sulfur 

dioxide (SO2). CSAPR began 

implementation in 2015 (after it was 

largely upheld by the Supreme Court) 

and the CSAPR Update began 

implementation in 2017. The latter rule 

was remanded to EPA to address the 

analytic year issues discussed in the 

prior comment and response, but the 

rule remains fully in effect. The 

commenter is correct that the D.C. 

Circuit vacated the CSAPR close-out, 

but we note that that rule was only a 

determination that no further emission 

reductions were required to address 

interstate transport obligations for the 

2008 ozone NAAQS; the rule did not 

itself establish any emission reductions. 

We therefore disagree that the legal 

status of these rules presents any 

obstacle to EPA’s approval of West 

Virginia’s submission. 

Comment 3: EPA also received a third 

comment, which included some 

contradictory statements, and much of 

which is beyond the scope of this 

action. However, we summarize a few 

germane points raised by the commenter 

and respond to them herein. The 

commenter states that EPA must 

disapprove the maintenance plan for the 

Charleston Area because ‘‘this plan does 

not adequately limit or prevent the 

harmful effects of ozone formation.’’ 

The commenter also suggests that 

approving the maintenance plan would 

allow for more ozone pollution. The 

commenter raises concerns about the 

scope of EPA’s authority, alleging that 

EPA’s authority is not unlimited, that 

EPA must take into account health 

effects from harmful ozone, and that 

EPA is perhaps not using an ‘‘acceptable 

methodology’’ or the ‘‘best available 

science.’’ 

Response 3: The NAAQS are 

standards required by the CAA to be 

established by EPA. The CAA identifies 

two types of NAAQS, primary and 

secondary. Primary NAAQS are air 

quality standards that ‘‘based on such 

criteria and allowing an adequate 

margin of safety, are requisite to protect 

the public health,’’ and secondary 

NAAQS specify a level of air quality 

that ‘‘is requisite to protect the public 

welfare from any known or anticipated 

adverse effects associated with the 

presence of such air pollutant in the 

ambient air.’’ CAA 109(b)(1) and (2). In 

lay terms, primary NAAQS ‘‘provide 

public health protection, including 

protecting the health of ‘sensitive’ 

populations such as asthmatics, 

children, and the elderly,’’ and 

secondary NAAQS ‘‘provide public 

welfare protection, including protection 

against decreased visibility and damage 

to animals, crops, vegetation, and 

10830 Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations 

8https://www.epa.gov/criteria-air-pollutants/ 

naaqs-table. 

9The Primary ozone NAAQS has been revised 

twice since 1997, most recently on October 26, 

2015. 80 FR 65292. 

buildings.’’ 8 As stated in the NPRM, on 

July 18, 1997 (62 FR 38856), EPA 

revised both the primary and secondary 

NAAQS for ozone to set the acceptable 

level of ozone in the ambient air at 0.08 

ppm, averaged over an 8-hour period. 

EPA set the primary 8-hour ozone 

NAAQS based on scientific evidence 

demonstrating that ozone causes 

adverse health effects at lower 

concentrations and over longer periods 

of time than was understood when the 

pre-existing 1-hour ozone NAAQS was 

set. Thus, the primary 1997 8-hour 

ozone NAAQS sets a threshold that at 

the time, EPA believed to be protective 

of public health allowing for an 

adequate margin of safety.9 The 

Charleston Area is meeting every ozone 

NAAQS, and EPA’s approval of West 

Virginia’s plan to continue to maintain 

the 1997 8-hour ozone NAAQS (as it has 

since it was redesignated to attainment 

in 2006) is based on EPA’s judgment 

that the emission limitations in West 

Virginia’s SIP and other federally 

enforceable measures have been 

effective at ensuring that the Charleston 

Area will continue to attain the NAAQS. 

EPA does not agree that it has exceeded 

its statutory authority. We also believe 

that we articulated our methodology for 

evaluating West Virginia’s submission 

in the proposal, and that we have 

followed that methodology here in the 

final action. 

IV. Final Action 

EPA is approving the 1997 8-hour 

ozone NAAQS limited maintenance 

plan for the Charleston Area 

(comprising Kanawha and Putnam 

Counties) as a revision to the West 

Virginia SIP. 

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 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 

action because it is not a significant 

regulatory action 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 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 April 26, 2021. 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 

pertaining to West Virginia’s limited 

maintenance plan for the Charleston 

Area (comprising Kanawha and Putnam 

Counties) 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, Nitrogen dioxide, Ozone, 

Volatile organic compounds. 

Dated: February 3, 2021. 

Diana Esher, 

Acting Regional Administrator, Region III. 

For the reasons stated in the 

preamble, the EPA amends 40 CFR part 

52 as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart XX—West Virginia 

■ 2. In § 52.2520, the table in paragraph 

(e) is amended by adding an entry for 

‘‘1997 8-Hour Ozone National Ambient 

Air Quality Standard Second 

Maintenance Plan for the West Virginia 

Portion of the Charleston, West Virginia 

Area Comprising Kanawha and Putnam 

Counties’’ at the end of the table to read 

as follows: 

§ 52.2520 Identification of plan. 

* * * * * 

(e) * * * 

Federal Register / Vol. 86, No. 34 / Tuesday, February 23, 2021 / Rules and Regulations 10831 

1 882 F.3d 1138 (D.C. Cir. 2018). 

2 ‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air Quality 

Management Division, September 4, 1992 (Calcagni 

Memo). 

3The ozone design value for a monitoring site is 

the 3-year average of the annual fourth-highest daily 

maximum 8-hour average ozone concentrations. 

The design value for an ozone nonattainment area 

is the highest design value of any monitoring site 

in the area. 

Name of non-regulatory SIP revision Applicable 

geographic area 

State 

submittal 

date 

EPA approval 

date 

Additional 

explanation 

*******

1997 8-Hour Ozone National Ambient Air Quality Standard Second Maintenance Plan for the West Virginia Portion of the Charleston, West Virginia 

Area Comprising Kanawha and Putnam Counties.

Charleston, West Virginia Area Comprising Kanawha and Putnam 

Counties.

12/10/2019 2/23/2021, [insert 

Federal Register citation].

[FR Doc. 2021–02623 Filed 2–22–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2020–0316; FRL–10018– 

14–Region 3] 

Air Plan Approval; Pennsylvania; 1997 

8-Hour Ozone National Ambient Air 

Quality Standards Second 

Maintenance Plan for the ScrantonWilkes-Barre Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a state 

implementation plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania. This revision pertains to 

the Commonwealth’s plan, submitted by 

the Pennsylvania Department of 

Environmental Protection (PADEP), for 

maintaining the 1997 8-hour ozone 

national ambient air quality standard 

(NAAQS) (referred to as the ‘‘1997 

ozone NAAQS’’) in the ScrantonWilkes-Barre, Pennsylvania area 

(Scranton-Wilkes-Barre Area). This 

action is being taken under the Clean 

Air Act (CAA). 

DATES: This final rule is effective on 

March 25, 2021. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2020–0316. All 

documents in the docket are listed on 

the https://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 https://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Maria A. Pino, 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) 

814–2181. Ms. Pino can also be reached 

via electronic mail at pino.maria@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On September 3, 2020 (85 FR 54961), 

EPA published a notice of proposed 

rulemaking (NPRM) for the 

Commonwealth of Pennsylvania. In the 

NPRM, EPA proposed approval of 

Pennsylvania’s plan for maintaining the 

1997 ozone NAAQS in the ScrantonWilkes-Barre Area through December 

19, 2027, in accordance with CAA 

section 175A. The formal SIP revision 

was submitted by PADEP on March 10, 

2020. 

II. Summary of SIP Revision and EPA 

Analysis 

On November 19, 2007 (72 FR 64948, 

effective December 19, 2007), EPA 

approved a redesignation request (and 

maintenance plan) from PADEP for the 

Scranton-Wilkes-Barre Area. In 

accordance with section 175A(b), at the 

end of the eighth year after the effective 

date of the redesignation, the state must 

also submit a second maintenance plan 

to ensure ongoing maintenance of the 

standard for an additional 10 years, and 

in South Coast Air Quality Management 

District v. EPA,1 the D.C. Circuit held 

that this requirement cannot be waived 

for areas, like the Scranton-Wilkes-Barre 

Area, that had been redesignated to 

attainment for the 1997 8-hour ozone 

NAAQS prior to revocation and that 

were designated attainment for the 2008 

ozone NAAQS. CAA section 175A sets 

forth the criteria for adequate 

maintenance plans. In addition, EPA 

has published longstanding guidance 

that provides further insight on the 

content of an approvable maintenance 

plan, explaining that a maintenance 

plan should address five elements: (1) 

An attainment emissions inventory; (2) 

a maintenance demonstration; (3) a 

commitment for continued air quality 

monitoring; (4) a process for verification 

of continued attainment; and (5) a 

contingency plan.2 PADEP’s March 10, 

2020 submittal fulfills Pennsylvania’s 

obligation to submit a second 

maintenance plan and addresses each of 

the five necessary elements. 

As discussed in the September 3, 

2020 NPRM, EPA allows the submittal 

of a less rigorous, limited maintenance 

plan (LMP) to meet the CAA section 

175A requirements by demonstrating 

that the area’s design value 3 is well 

below the NAAQS and that the 

historical stability of the area’s air 

quality levels shows that the area is 

unlikely to violate the NAAQS in the 

future. EPA evaluated PADEP’s March 

10, 2020 submittal for consistency with 

all applicable EPA guidance and CAA 

requirements. EPA found that the 

submittal met CAA section 175A and all 

CAA requirements, and proposed 

approval of the LMP for the ScrantonWilkes-Barre Area as a revision to the 

Pennsylvania SIP. The effect of this 

action makes certain commitments 

related to the maintenance of the 1997 

ozone NAAQS Federally enforceable as 

part of the Pennsylvania SIP. 

Other specific requirements of 

PADEP’s March 10, 2020 submittal and 

the rationale for EPA’s proposed action 

are explained in the NPRM and will not 

be restated here. 

III. EPA’s Response to Comments 

Received 

EPA received one comment in 

support of its proposed approval of 

PADEP’s March 10, 2020 submittal. EPA 

received no adverse comments on the 

September 3, 2020 NPRM. Therefore, no 

response to comments is required. 

IV. Final Action 

EPA is approving PADEP’s second 

maintenance plan for the ScrantonVerDate Sep<11>2014 21:28 Feb 22, 2021 Jkt 253001 PO 00000 Frm 00129 Fmt 4700 Sfmt 4700 E:\FR\FM\23FER1.SGM 23FER1