Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Rules and Regulations 12265 

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); 

• 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 the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practical 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 the 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. The 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 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 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, Ammonia, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

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

Dated: February 23, 2021. 

Deborah Jordan, 

Acting Regional Administrator, Region IX. 

Chapter I, title 40 of the Code of 

Federal Regulations is amended 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 F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(497)(i)(C)(1)(ii), 

(c)(500)(ii)(A)(2), and (c)(553) to read as 

follows: 

§ 52.220 Identification of plan—in part. 

* * * * * 

(c) * * * 

(497) * * * 

(i) * * * 

(C) * * * 

(1) * * * 

(ii) Previously approved on March 5, 

2018 at (c)(497)(i)(C)(1)(i) of this section 

and now deleted with replacement at 

(c)(553)(i)(B)(1)(i), Ordinance No. 344, 

Portola Municipal Code, Chapter 15.10, 

‘‘Wood Stove and Fireplace Ordinance,’’ 

adopted June 22, 2016. 

* * * * * 

(500) * * * 

(ii) * * * 

(A) * * * 

(2) The ‘‘Portola Fine Particulate 

Matter (PM2.5) Attainment Plan,’’ 

adopted January 23, 2017, subchapter 

VI.B (‘‘Contingency Measure’’), as 

supplemented and revised October 26, 

2020. 

* * * * * 

(553) The following additional 

materials were submitted on December 

29, 2020, by the Governor’s designee as 

an attachment to a letter dated 

December 28, 2020. 

(i) Incorporation by reference. (A) 

Northern Sierra Air Quality 

Management District. 

(1) City of Portola. 

(i) Ordinance No. 359, Portola 

Municipal Code, Chapter 15.10, ‘‘Wood 

Stove and Fireplace Ordinance and the 

Prohibition of the Open Burning of Yard 

Waste,’’ adopted September 9, 2020, 

except paragraph 15.10.060 B., section 

15.10.100, and section 15.10.110. 

(ii) [Reserved] 

(B) [Reserved] 

(ii) Additional materials. (A) 

California Air Resources Board. 

(1) Resolution 20–26, ‘‘Proposed 

Portola PM2.5 Plan Contingency Measure 

State Implementation Plan Submittal,’’ 

adopted November 19, 2020. 

(2) [Reserved] 

(B) Northern Sierra Air Quality 

Management District. 

(1) Northern Sierra Air Quality 

Management District Resolution 2020– 

09, adopted October 26, 2020. 

(2) [Reserved] 

[FR Doc. 2021–04351 Filed 3–2–21; 8:45 am] 

BILLING CODE 6560–50–P 

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). 


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12266 Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Rules and Regulations 

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). 

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. 

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) 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 HuntingtonAshland, 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. 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: 

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. 

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. 

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 


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5The 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-designvalues. 

7See ‘‘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-airquality-data. 

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. 

TABLE 1—REPORTED DESIGN VALUE

DATA BETWEEN 2006 AND 2019 

FOR CABELL COUNTY, WV AND

BOYD COUNTY, KY 7

Design value (ppm) 

Year Cabell County, 

WV 

Boyd County, 

KY 

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 

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. 

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 longstanding policies for LMPs. See 

International Fabricare at 391. 

Furthermore, CAA section 175A does 


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8See 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.’’) 

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 nongovernmental 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). 

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 


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Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Rules and Regulations 12269 

9The 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. 

10Wisconsin, 938 F.3d 303 (D.C. Cir. 2019). 

11Wisconsin, 938 F.3d at 313. 

12Wisconsin, 938 F.3d at 323–331. 

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). 

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. 

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 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. 

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: 

• 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 


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12270 Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Rules and Regulations 

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 

■ 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 Huntington-Ashland, WVKY Area Comprising Cabell and Wayne 

Counties’’ at the end of the table to read 

as follows: 

§ 52.2520 Identification of plan. 

* * * * * 

(e) * * * 

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 Huntington-Ashland, WV-KY Area 

Comprising Cabell and Wayne Counties.

Huntington-Ashland WVKY, West Virginia Area 

Comprising Cabell and 

Wayne Counties.

12/10/19 3/3/21, [insert Federal 

Register citation].

[FR Doc. 2021–04107 Filed 3–2–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2020–0388; FRL–10020– 

89–Region 5] 

Air Plan Approval; Ohio; Base Year 

Emission Inventories and Emissions 

Statement Rule Certification for the 

2015 Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving, under the 

Clean Air Act (CAA), a revision to the 

State Implementation Plan (SIP) 

submitted by the Ohio Environmental 

Protection Agency on July 24, 2020. The 

CAA establishes emission inventory 

requirements for all ozone 

nonattainment areas. The revision 

addresses the emission inventory 

requirements for the Cleveland, Ohio 

(OH) ozone nonattainment area and the 

Ohio portion of the Cincinnati, OhioKentucky (Cincinnati) ozone 

nonattainment area, as designated under 

the 2015 ozone National Ambient Air 

Quality Standard (NAAQS or standard). 

EPA is also confirming that Ohio’s 

stationary annual emissions statement 

regulation, which has been previously 

approved by EPA under a prior ozone 

standard, satisfies the CAA emissions 

statement rule requirement for the 

Cleveland and Cincinnati 

nonattainment areas under the 2015 

ozone NAAQS. 

DATES: This final rule is effective on 

April 2, 2021. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2020–0388. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., 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 either through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. We 

recommend that you telephone Charles 

Hatten, Environmental Engineer, at 

(312) 886–6031 before visiting the 

Region 5 office. 


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