[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Rules and Regulations]
[Pages 12265-12270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04107]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0196; FRL-10020-45-Region 3]


Air Plan Approval; West Virginia; 1997 8-Hour Ozone National 
Ambient Air Quality Standard Second Maintenance Plan for the West 
Virginia Portion of the Huntington-Ashland, WV-KY Area Comprising 
Cabell and Wayne Counties

AGENCY: Environmental Protection Agency (EPA).

[[Page 12266]]


ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the West Virginia 
Department of Environmental Protection (WVDEP) on behalf of the State 
of West Virginia (WV). This revision pertains to West Virginia's plan 
for maintaining the 1997 8-hour ozone national ambient air quality 
standard (NAAQS) for the West Virginia portion of the Huntington-
Ashland, WV-KY area (Huntington Area), comprising Cabell and Wayne 
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 April 2, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0196. 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. Pag[aacute]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. Pag[aacute]n-Incle can also be reached via electronic mail at 
<a href="/cdn-cgi/l/email-protection#f888999f9996d591969b949dd6939d919499b89d8899d69f978e"><span class="__cf_email__" data-cfemail="b7c7d6d0d6d99aded9d4dbd299dcd2dedbd6f7d2c7d699d0d8c1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 29, 2020 (85 FR 38825), 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 October 16, 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 September 15, 2006 (71 FR 54421, effective October 16, 2006), 
EPA approved a redesignation request (and maintenance plan) from WVDEP 
for the Huntington 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 Huntington 
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.
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    \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).
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    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 the area's design value \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 Huntington Area, comprising Cabell and 
Wayne 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.
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    \3\ See ``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 
PM<INF>10</INF> Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \4\ The 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.
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    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 four sets of relevant comments on the June 29, 2020 
NPRM. Comments 2 and 3 raised concerns about EPA's reliance on the Air 
Quality Modeling Technical Support Document (TSD) and are summarized 
and addressed together under Comment 2. All comments received are in 
the docket for this rulemaking action. A summary of the comments and 
EPA's responses are provided herein.
    Comment 1: The commenter contends that the LMP should not be 
approved because it is not based on the ``the best available science.'' 
The commenter asserts that the second maintenance plan does not provide 
information regarding the prevention and reduction of future impacts of 
``oil and gas development activity,'' and does not take into 
consideration impacts of ``installation of oil and gas pipelines in the 
area.'' Additionally, the commenter asserts that the LMP ``does not 
have adequate funding to cover the costs and does not comply with other 
provisions of state policy that make it impossible for it to meet the 
EPA standards.'' Further, the commenter claims that the second 
maintenance plan failed to consider ``potential emissions from oil and 
gas pipelines'' including ``spills and releases,'' and these emissions 
need to be included and mitigated.
    Response 1: Commenter contends that EPA's proposed approval of West 
Virginia's second maintenance plan is not based on ``the best available 
science,'' but provides no support for its contention. EPA disagrees 
with the commenter that West Virginia's second maintenance plan is not 
based on ``the

[[Page 12267]]

best available science.'' As EPA laid out in the NPRM, EPA has 
interpreted the provision in CAA section 175A that requires states to 
``provide for maintenance'' of the NAAQS to be satisfied when the 
design values are consistently below 85% of the relevant standard, 
which in this case means at or below 0.071 parts per million (ppm). At 
the time of submission, on December 10, 2019, the Huntington Area's 
2016 to 2018 design value was at 0.064 ppm. The 2017 to 2019 period 
design value fell to 0.062 ppm. As EPA noted in the NPRM the area has 
maintained design values below 0.065 ppm since 2014. The commenter did 
not identify what science might provide a better basis for 
demonstrating maintenance with the ozone NAAQS than what West Virginia 
relied upon in the second maintenance plan, or that EPA should consider 
in its evaluation of the plan. The commenter had provided EPA with no 
basis to change its conclusion that the data and analysis of the data 
provided by West Virginia in support of the second maintenance plan 
will result in maintenance of the NAAQS for the remainder of the second 
maintenance period. See, e.g., International Fabricare Institute v. 
E.P.A., 972 F.2d 384, 391 (D.C. Cir. 1992). (The Administrative 
Procedures Act does not require that EPA change its decision based on 
``comments consisting of little more than assertions that in the 
opinions of the commenters the agency got it wrong,'' when submitted 
with no accompanying data.)
    The commenter further asserts that: (1) The plan did not provide 
information about prevention and reduction of future impacts of ``oil 
and gas development activity;'' (2) the plan did not take into 
consideration future installation of oil and gas pipelines in the area; 
and (3) the plan failed to consider ``potential emissions from oil and 
gas pipeline.'' We do not agree with the commenter that a demonstration 
of maintenance under CAA section 175A is required to ``prevent'' 
potential future emissions activities in the area, or to consider 
potential future emissions from sources that do not yet exist. As noted 
above and in the proposal, under the LMP option, states may demonstrate 
that areas will maintain the NAAQS by showing that design values in the 
area in question are stably and significantly below the level of the 
NAAQS. In this case, the Huntington Area's most recent design value \5\ 
is below 0.065 ppm and has been since 2014. The design values for the 
Huntington Area, that includes Cabell County in West Virginia and Boyd 
County in Kentucky (KY), consistently have been below 0.071 ppm since 
2013 through 2019, the last year for which EPA has data.\6\ See Table 1 
of this preamble for the design value data in ppm for both counties. 
Based on these trends, EPA has a high degree of confidence that the 
Area will be able to continue to maintain the NAAQS.
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    \5\ The 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.
    \6\ Design values for 2020 are not expected to be available 
before May 1, 2021. Design values are calculated for the year after 
states, locals and/or tribes certify their data on May 1st of the 
following year. Typically, design values are not finalized and 
posted until July of the following year. Design values are published 
annually by EPA and currently available through calendar year 2019. 
For more information on air quality design values visit: https://www.epa.gov/air-trends/air-quality-design-values.

  Table 1--Reported Design Value Data Between 2006 and 2019 for Cabell
                   County, WV and Boyd County, KY \7\
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                           Design value (ppm)
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                                          Cabell County,   Boyd County,
                  Year                          WV              KY
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2006....................................           0.076           0.076
2007....................................           0.084           0.077
2008....................................           0.080           0.074
2009....................................           0.073           0.070
2010....................................           0.066           0.070
2011....................................           0.067           0.069
2012....................................           0.072           0.072
2013....................................           0.069           0.069
2014....................................           0.065           0.068
2015....................................           0.062           0.066
2016....................................           0.064           0.066
2017....................................           0.064           0.065
2018....................................           0.064           0.064
2019....................................           0.062           0.062
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    Moreover, in addition to demonstrating maintenance via the LMP 
option, West Virginia also pointed to EPA's Air Quality Modeling TSD 
which projects future design values, including the Huntington Area, in 
2023. This modeling takes into consideration all on-the-books control 
measures and any known future planned projects and sources. The Air 
Quality Modeling TSD projects that the average design value for the 
area in 2023 to be 0.058 ppm. This value is so far below the level of 
the 1997 8-hour ozone NAAQS that even if additional oil and gas sources 
were to be sited in the Huntington Area (any of which would be subject 
to applicable CAA controls such as Prevention of Significant 
Deterioration [PSD]), those emissions increases would be unlikely to 
cause the area to violate the 1997 8-hour ozone NAAQS. Any emissions 
increases above the trigger levels specified in the LMP, whatever the 
cause, will result in West Virginia having to implement contingency 
measures as described in the NPRM. Moreover, as stated in the NPRM, if 
there is indeed a violation and the design value exceeds the NAAQS, the 
contingency plan will be ``triggered,'' based on the following 
schedule: (1) Quality assurance procedures must confirm the monitored 
violation within 45 days of occurrence; (2) a draft rule would be 
developed by WVDEP for any regulation chosen; (3) WVDEP will adopt the 
selected control measure(s) as emergency rule(s) which will be 
implemented within six months after adoption and will file the rule(s) 
as legislative rule(s) for permanent authorization by the legislature; 
and (4) for each voluntary measure selected, WVDEP will initiate 
program development with local governments within the area by the start 
of the following ozone season. These measures are part of the CAA 
section 175A requirements for an approvable LMP and West Virginia's 
second maintenance plan meets these requirements.
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    \7\ See ``EPA Air Quality System--Huntington WV Design Value 
Report'' of WVDEP's December 10, 2019 submittal, which includes 
details about the design values from the Huntington Area in WV from 
2006 until 2019. Air quality data is also available at: https://www.epa.gov/outdoor-air-quality-data.
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    The commenter also contends that the LMP does not present 
``adequate funding to cover the costs'' and fails to ``comply with 
other provisions of state policy,'' but provides no further details or 
explanation. Similar to the comment regarding the alleged failure of 
West Virginia to use ``the best available science,'' the commenter has 
made an allegation without providing any support. The commenter 
provides no basis for EPA to be able to evaluate whether or not a 
funding issue exists. With respect to an alleged failure to comply with 
state policy, no specific policies that ``make it impossible for it to 
meet the EPA standards'' are cited by the commenter. Even had the 
commenter cited specific policies, ``[C]omments consisting of little 
more than assertions that in the opinions of the commenters the agency 
got it wrong,'' when submitted with no accompanying data do not provide 
sufficient ground for EPA to change its evaluation of a plan that on 
its face comports with EPA's governing law and with the Agency's 
consistent and long-standing policies for LMPs. See International 
Fabricare at 391. Furthermore, CAA section 175A does

[[Page 12268]]

not require that maintenance plans identify or provide funding for any 
costs associated with implementation of the plan. EPA has set forth in 
the NPRM the criteria relevant to approvability of the LMP. EPA has 
determined that the December 10, 2019 SIP revision includes adequate 
information to support approval of West Virginia's LMP. As set forth in 
the NPRM, EPA has determined that the State provided sufficient 
assurances in the LMP for EPA to approve West Virginia's 1997 8-hour 
ozone second maintenance plan for the Huntington Area. EPA's evaluation 
of the West Virginia's December 10, 2019 SIP revision and the rationale 
for taking rulemaking action on this submission was discussed in detail 
in the NPRM. This comment gives EPA no reason to believe that the 
criteria it applied in the NPRM are either incorrect, incomplete or 
have been misapplied.
    Comment 2: Two commenters assert that the LMP should not be 
approved because of EPA's reliance on the Air Quality Modeling TSD that 
was developed for EPA's regional transport rulemaking.
    One of the commenters alleged that the TSD does not consider newer 
EPA policies (i.e., ``repealing the MATS rule or removing California's 
ability to regulate cars, or even the repeal of the Clean Power Plan 
and replacement with the ACE rule'').
    Both commenters contend 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; and (4) the TSD has been 
``highly contested'' by environmental groups, ``incorrectly uses 
assumptions disputed by multiple non-governmental and governmental 
organizations'' and ``other states contend EPA's modeling as flawed.''
    Further, one commenter contends that the TSD does not address a 
recent court decision that ``threw out'' EPA's modeling ``because it 
modeled to the wrong attainment year. . . .'' Both commenters assert 
that the TSD is not being used for its intended purpose and EPA should 
disapprove the LMP due to EPA's reliance on the TSD in the NPRM.
    Response 2: EPA does not agree with the commenters that approval of 
West Virginia's second maintenance plan is not appropriate. The 
commenters raise concerns about West Virginia and EPA's citation of the 
Air Quality Modeling TSD, but the commenters ignore that EPA's primary 
basis for finding that West Virginia has provided for maintenance of 
the 1997 8-hour ozone NAAQS in the Huntington Area is the State's 
demonstration that the criteria for a LMP has been met. See 85 FR 
38825, 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 Air Quality Modeling TSD referenced by West 
Virginia merely provides additional support for the area's continued 
maintenance of the 1997 8-hour ozone NAAQS.
    EPA disagrees that it must disapprove the LMP because the Air 
Quality Modeling TSD does not consider newer EPA policies like 
``repealing the MATS (Mercury and Air Toxics Standards) rule, or 
California's ability to regulate cars, or even the repeal of the Clean 
Power Plan and replacement with the ACE (Affordable Clean Energy) 
rule.'' First, MATS was not repealed. All emission reductions required 
under MATS remain. See 85 FR 31286, 31312 (May 22, 2020). Second, the 
2023 Air Quality Modeling TSD cited by West Virginia in their second 
maintenance plan submission does not include emission reductions 
associated with the Clean Power Plan.\8\ (EPA's actions with respect to 
regulating automobile emissions in California are not relevant to this 
action).
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    \8\ See Technical Support Document (TSD), Additional Updates to 
Emissions Inventories for the Version 6.3, 2011 Emissions Modeling 
Platform for the Year 2023, available at https://www.epa.gov/sites/production/files/2017-11/documents/2011v6.3_2023en_update_emismod_tsd_oct2017.pdf, at 92 (``The 
projected EGU emissions for 2023el included the Final Mercury and 
Air Toxics (MATS) rule announced on December 21, 2011, the Cross-
State Air Pollution Rule (CSAPR) issued July 6, 2011, the CSAPR 
Update Rule issued October 26, 2016 and the Clean Power Plan (CPP), 
while the 2023en emissions [i.e., the emissions inventory used in 
the updated 2023 modeling] include the other rules but do not 
include the CPP.'')
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    The modeling cited by the commenters 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 
commenters' concerns about relying on that modeling are warranted. The 
commenters contend 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 TSD 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 an 
LMP, 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 commenters' contention that because the 
Air Quality Modeling TSD was performed to analyze the transport of 
pollution across state lines with respect to other ozone NAAQS, it 
cannot be relied upon in this action. We acknowledge that the Air 
Quality Modeling TSD 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 
TSD is fully in keeping with the question of whether the Huntington 
Area is expected to maintain the NAAQS. The Air Quality Modeling TSD 
projected ozone concentrations at every air quality monitor in the 
contiguous United States in 2023 in order to identify which monitors 
might have problems attaining or maintaining the 2008 and 2015 NAAQS 
for ozone in 2023. Because the Air Quality Modeling TSD results simply 
provide projected ozone concentration design values, which are 
expressed as three-year 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 Huntington Area's most recent certified design 
value as part of the proposal (i.e., for the years 2016-2018), the 
area's design value was 0.064 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 TSD. In this case, the interstate transport modeling indicated 
that in 2023, the Huntington Area's design value is projected to be 
0.058

[[Page 12269]]

ppm,\9\ which is again, well below all three standards. The fact that 
the Air Quality Modeling TSD 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).
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    \9\ The June 29, 2020 NPRM for this action recited 0.060 ppm as 
the Projected 2023 design value in Table 2--Huntington Area 8-hour 
Ozone Design Value in Parts Per Million. Through this final action 
we clarify that the correct Projected 2023 design value that was 
included in the State's submission, is 0.058 ppm. The inclusion of 
the slightly higher but incorrect figure in the NPRM is a harmless 
error that does not alter EPA's proposal to approve this LMP.
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    The commenters' assert 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 commenters' also 
allege that EPA should not rely on its modeling because it ``have now 
been outlawed by multiple courts'' and ``fails to stand up to the 
recent court decisions,'' citing the Wisconsin v. EPA D.C. Circuit 
decision.\10\ EPA disagrees that the existence of criticisms of the 
agency's Air Quality Modeling TSD 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 TSD is technically 
flawed. We acknowledge that the source apportionment Air Quality 
Modeling TSD runs cited by the commenters 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 TSD 
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.\11\ 
Contrary to the commenters' suggestion, the D.C. Circuit upheld EPA's 
Air Quality Modeling TSD with respect to the many technical challenges 
raised by petitioners in the Wisconsin case.\12\ We therefore think 
reliance on the interstate transport Air Quality Modeling TSD as 
supplemental support for showing that the Huntington Area will maintain 
the 1997 8-hour ozone NAAQS through the end of its 20th year 
maintenance period is appropriate.
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    \10\ Wisconsin, 938 F.3d 303 (D.C. Cir. 2019).
    \11\ Wisconsin, 938 F.3d at 313.
    \12\ Wisconsin, 938 F.3d at 323-331.
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    Comment 3: 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 CSAP and CSAP Update and CSAP 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 3: 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 Cross-State Air 
Pollution Rule and the CSAPR Update--remains in place and continues to 
ensure emission reductions of nitrogen oxides (NO<INF>X</INF>) and 
sulfur dioxide (SO<INF>2</INF>). 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.

IV. Final Action

    EPA is approving the 1997 8-hour ozone NAAQS limited maintenance 
plan for the Huntington Area, comprising Cabell and Wayne 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:
    <bullet> 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);
    <bullet> 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;
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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

[[Page 12270]]

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 3, 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 Huntington Area, comprising Cabell and Wayne 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 18, 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

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 ``1997 8-Hour Ozone National Ambient Air Quality Standard 
Second Maintenance Plan for the West Virginia Portion of the 
Huntington-Ashland, WV-KY Area Comprising Cabell and Wayne Counties'' 
at the end of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1997 8-Hour Ozone National         Huntington-Ashland       12/10/19  3/3/21, [insert       ....................
 Ambient Air Quality Standard       WV-KY, West                        Federal Register
 Second Maintenance Plan for the    Virginia Area                      citation].
 West Virginia Portion of the       Comprising Cabell
 Huntington-Ashland, WV-KY Area     and Wayne Counties.
 Comprising Cabell and Wayne
 Counties.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2021-04107 Filed 3-2-21; 8:45 am]
BILLING CODE 6560-50-P


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