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[Federal Register Volume 80, Number 108 (Friday, June 5, 2015)]
[Rules and Regulations]
[Pages 32019-32026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13801]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0423; FRL-9928-78-Region 3]

Approval and Promulgation of Implementation Plans; West Virginia; 
Regional Haze Five-Year Progress Report State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia (West Virginia) through the West Virginia Department of 
Environmental Protection (WVDEP). West Virginia's SIP revision 
addresses requirements of the Clean Air Act (CAA) and EPA's rules that 
require states to submit periodic reports describing progress towards 
reasonable progress goals (RPGs) established for regional haze and a 
determination of the adequacy of the state's existing implementation 
plan addressing regional haze (regional haze SIP). EPA is approving 
West Virginia's SIP revision on the basis that it addresses the 
progress report and adequacy determination requirements for the first 
implementation period for regional haze.

DATES: This final rule is effective on July 6, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0423. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, 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 electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of West 
Virginia's submittal are available at the West Virginia Department of 
Environmental Protection, Division of Air Quality, 601 57th Street SE., 
Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Asrah Khadr, (215) 814-2071, or by 
email at khadr.asrah@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 14, 2014 (79 FR 14460), EPA published a notice of proposed 
rulemaking (NPR) for West Virginia. In the NPR, EPA proposed approval 
of West Virginia's progress report SIP, a report on progress made in 
the first implementation period towards RPGs for Class I areas in and 
outside West Virginia that are affected by emissions from West 
Virginia's sources. This progress report SIP and accompanying cover 
letter also included a determination that West Virginia's existing 
regional haze SIP requires no substantive revision to achieve the 
established regional haze visibility improvement and emissions 
reduction goals for 2018. On March 10, 2015 (80 FR 12607), EPA 
published a supplemental NPR (SNPR) to address the potential effects on 
EPA's proposed approval from the April 29, 2014 decision of the United 
States Supreme Court in EPA v. EME Homer City Generation, L.P., 134 S. 
Ct. 1584 (2014), remanding to the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit) EPA's Cross-State Air 
Pollution Rule (CSAPR) for further proceedings and the D.C. Circuit's 
decision to lift the stay of CSAPR.

[[Page 32020]]

    States are required to submit a progress report in the form of a 
SIP revision every five years that evaluates progress towards the RPGs 
for each mandatory Class I Federal area \1\ within the state and in 
each mandatory Class I Federal area outside the state which may be 
affected by emissions from within the state. See 40 CFR 51.308(g). In 
addition, the provisions under 40 CFR 51.308(h) require states to 
submit, at the same time as the 40 CFR 51.308(g) progress report, a 
determination of the adequacy of the state's existing regional haze 
SIP. The first progress report SIP is due five years after submittal of 
the initial regional haze SIP. On June 18, 2008, WVDEP submitted its 
regional haze SIP in accordance with the requirements of 40 CFR 
51.308.\2\ The progress report SIP revision was submitted by West 
Virginia on April 30, 2013 and EPA finds that it satisfies the 
requirements of 40 CFR 51.308(g) and (h).
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    \1\ Areas designated as mandatory Class I Federal areas consist 
of national parks exceeding 6000 acres, wilderness areas and 
national memorial parks exceeding 5000 acres, and all international 
parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). 
In accordance with section 169A of the CAA, EPA, in consultation 
with the Department of Interior, promulgated a list of 156 areas 
where visibility is identified as an important value. 44 FR 69122 
(November 30, 1979). The extent of a mandatory Class I area includes 
subsequent changes in boundaries, such as park expansions. 42 U.S.C. 
7472(a). Although states and tribes may designate as Class I 
additional areas which they consider to have visibility as an 
important value, the requirements of the visibility program set 
forth in section 169A of the CAA apply only to ``mandatory Class I 
Federal areas.'' Each mandatory Class I Federal area is the 
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i). 
When we use the term ``Class I area'' in this action, we mean a 
``mandatory Class I Federal area.''
    \2\ On March 23, 2012 (77 FR 16937), EPA finalized a limited 
approval and limited disapproval of West Virginia's June 18, 2008 
regional haze SIP to address the first implementation period for 
regional haze. The limited disapproval of this SIP was a result of 
West Virginia's reliance on the Clean Air Interstate Rule (CAIR) to 
meet certain regional haze requirements. EPA addressed the 
deficiency identified in its limited disapproval with a federal 
implementation plan (FIP) in June 2012 that replaced West Virginia's 
reliance upon CAIR for certain regional haze requirements with 
reliance on CSAPR, a rule that EPA had issued in August 2011 to 
replace CAIR. 77 FR 33642 (final action on FIP to address certain 
West Virginia regional haze requirements). See also 76 FR 48208 
(August 8, 2011) (promulgation of CSAPR). The D.C. Circuit initially 
vacated CSAPR in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 
(D.C. Cir. 2012), cert. granted 133 U.S. 2857 (2013); however, the 
United States Supreme Court vacated that decision and remanded CSAPR 
to the D.C. Circuit for further proceedings. EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584 (2014). EPA began implementing 
CSAPR on January 1, 2015 after the D.C. Circuit lifted its stay of 
CSAPR. Order of Dec. 30, 2011, in EME Homer City Generation, L.P. v. 
EPA, D.C. Cir. No. 11-1302. See 79 FR 71663 (December 3, 2014) 
(interim final rulemaking clarifying how EPA will implement CSAPR).
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II. Summary of SIP Revision

    On April 30, 2013, West Virginia submitted a SIP revision to 
describe the progress made towards the RPGs of Class I areas in and 
outside West Virginia that are affected by emissions from West 
Virginia's sources. This progress report SIP also includes a 
determination of the adequacy of West Virginia's existing regional haze 
SIP to achieve these RPGs.
    West Virginia has two Class I areas within its borders: Dolly Sods 
Wilderness Area (Dolly Sods) and Otter Creek Wilderness Area (Otter 
Creek). West Virginia notes in its progress report SIP that West 
Virginia sources were also identified, through an area of influence 
modeling analysis based on back trajectories, as potentially impacting 
nine Class I areas in five neighboring states: Brigantine Wilderness in 
New Jersey; Great Smoky Mountains National Park in North Carolina and 
Tennessee; James River Face Wilderness in Virginia; Linville Gorge 
Wilderness in North Carolina; Monmouth Cave National Park in Kentucky; 
and Shenandoah National Park in Virginia.
    The provisions in 40 CFR 51.308(g) require a progress report SIP to 
address seven elements. EPA finds that West Virginia's progress report 
SIP addressed each element under 40 CFR 51.308(g). The seven elements 
and EPA's conclusion are briefly summarized in this rulemaking action.
    The provisions in 40 CFR 51.308(g) require progress report SIPs to 
include a description of the status of measures in the approved 
regional haze SIP; a summary of emissions reductions achieved; an 
assessment of visibility conditions for each Class I area in the state; 
an analysis of changes in emissions from sources and activities within 
the state; an assessment of any significant changes in anthropogenic 
emissions within or outside the state that have limited or impeded 
progress in Class I areas impacted by the state's sources; an 
assessment of the sufficiency of the approved regional haze SIP; and a 
review of the state's visibility monitoring strategy. As explained in 
detail in the NPR and SNPR, EPA finds that West Virginia's progress 
report SIP addressed each element and has therefore satisfied the 
requirements under 40 CFR 51.308(g).
    In addition, pursuant to 40 CFR 51.308(h), states are required to 
submit, at the same time as the progress report SIP, a determination of 
the adequacy of their existing regional haze SIP and to take one of 
four possible actions based on information in the progress report. One 
possible action is submission of a negative declaration to EPA that no 
further substantive revision to the state's existing regional haze SIP 
is needed. In its progress report SIP, West Virginia submitted a 
negative declaration that it had determined that its existing regional 
haze SIP requires no further substantive revision to achieve the RPGs 
for the Class I areas that are affected by emissions from West 
Virginia's sources. As explained in detail in the NPR and SNPR, EPA 
concludes West Virginia has adequately addressed 40 CFR 51.308(h) 
because the visibility data trends at the Class I areas impacted by 
West Virginia's sources and the emissions trends of the largest 
emitters of visibility-impairing pollutants both indicate that the RPGs 
for 2018 will be met or exceeded. Therefore, EPA concludes West 
Virginia's progress report SIP meets the requirements of 40 CFR 
51.308(h).

III. Summary of Public Comments and EPA Response

    EPA received comments on the proposed rulemaking from the National 
Parks Conservation Association (Commenter). EPA received one additional 
comment on the SNPR from the Utility Air Regulatory Group (SNPR 
Commenter) in support of our proposed approval of West Virginia's 
progress report SIP. A full set of the comments are provided in the 
docket for today's final rulemaking action. A summary of the 
significant comments and the EPA's response is provided in this 
section.
    Comment 1: The Commenter stated that EPA should not approve the 
West Virginia progress report SIP revision because the report does not 
meet the requirements of 40 CFR 51.308(g)(2). The Commenter stated that 
the West Virginia progress report describes emission reductions in West 
Virginia but fails to detail specific reductions achieved through 
implementation of specific measures in the West Virginia regional haze 
SIP. The Commenter claimed that the report neither demonstrates that 
regional haze SIP measures are working nor that emission reductions or 
visibility improvement has resulted from enforceable requirements in 
the regional haze SIP and not from ``outside forces.'' More 
specifically, the Commenter claimed that reductions in sulfur dioxide 
(SO2) emissions from electric generating units (EGUs) from 
shutdowns, fuel switches, addition of controls, shifting to the use of 
cleaner units, and a decrease in demand were reversible if not 
enforceable. The Commenter stated that emission reductions cannot be 
relied upon if not enforceable and requested

[[Page 32021]]

EPA provide the reductions achieved through West Virginia's regional 
haze SIP and revise its assessment of the SIP revision.
    Response 1: EPA disagrees with the Commenter's assertion that West 
Virginia has not adequately addressed 40 CFR 51.308(g)(2) and that EPA 
cannot accordingly approve West Virginia's progress report SIP 
revision. While the regulations at 40 CFR 51.308(g)(2) require a 
summary of the emissions reductions achieved in the State through the 
measures in its regional haze SIP, there is nothing in this provision 
requiring a detailed, causal analysis pinpointing or linking specific 
emission reductions to specific regional haze SIP measures.
    The Commenter's argument that West Virginia must specifically link 
specific measures in the regional haze SIP to changes in emissions 
inventories appears to be based on a misunderstanding of the design of 
the regional haze program and the purpose of the mid-course progress 
reports. The Regional Haze Rule,\3\ which was promulgated not long 
after the 1997 revisions to the ozone and fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS), was 
explicitly designed to facilitate the coordination of emissions 
management strategies for regional haze with those needed to implement 
the NAAQS. See 64 FR 35713, 35719-35720 (July 1, 1999). More generally, 
the Regional Haze Rule requires states to include all air quality 
improvements that will be achieved by other CAA programs and state air 
pollution control requirements when assessing changes in emissions and 
visibility to be expected during the period of their regional haze SIP. 
64 FR at 35733. This is made clear in the haze regulations which 
prohibit states from adopting RPGs that represent less visibility 
improvement than is expected to result from the implementation of other 
CAA requirements during the planning period. 40 CFR 51.308(d)(1)(vi). 
Given this requirement, states included in their regional haze SIPs a 
number of Federal regulations for mobile and stationary sources that 
had or were expected to come into effect after the baseline period and 
that were anticipated to result in reductions of visibility impairing 
pollutants. These regulations included NAAQS implementation measures as 
well as other CAA requirements, such as mobile source rules or Maximum 
Achievable Control Technology (MACT) standards issued under section 112 
of the CAA. As one example, West Virginia included the 2007 Heavy-Duty 
Highway Rule (40 CFR part 86, subpart P) in its regional haze SIP. In 
short, West Virginia, like other states, included in its regional haze 
SIP anticipated reductions in emissions during the baseline period 
arising from a number of Federal CAA measures, as required by the 
Regional Haze Rule.
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    \3\ EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713) known as the Regional Haze Rule. The Regional 
Haze Rule revised the existing visibility regulations to integrate 
into the regulation provisions addressing regional haze impairment 
and established a comprehensive visibility protection program for 
Class I areas. The requirements for regional haze, are included in 
the EPA's visibility protection regulations at 40 CFR 51.300-309.
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    Thus, states took into account the anticipated emission reductions 
from a wide range of measures in setting RPGs. To model the visibility 
conditions in 2018, states used projected emission inventories based on 
the best information before them. Given the significance of emissions 
from EGUs to haze, these projections were based, among other things, on 
expected changes in energy demand affecting capacity utilization of 
power plants. States also sometimes included an emissions buffer to 
account for the possible construction of new power plants or other 
types of facilities. States also took into account, as described above, 
anticipated reductions in emissions resulting from recent Federal rules 
addressing non-visibility-related requirements, as well as consent 
decrees, significant measures adopted by nearby states, and specific 
measures to address the requirements of the visibility program. Thus, 
in forecasting future visibility conditions, states by design took into 
account to the extent possible ``outside forces'' and a host of 
overlapping requirements.
    The type of analysis underlying the RPGs established in regional 
haze SIPs involves a fair degree of uncertainty. Changes in economic 
conditions, fluctuations in the prices of fuels, the remand of a CAA 
requirement by the courts, or the passage of new regulations are some 
of the factors that may occur and can impact emissions inventories and 
monitored visibility conditions. Because each planning period requires 
states to forecast conditions ten or more years into the future, EPA 
required a mid-course evaluation of the regional haze SIP. The purpose 
of this progress report is to ``check in'' with the state to determine 
whether its predictions regarding future visibility remain reasonable. 
The purpose of summarizing the emission reductions throughout the state 
from the measures in the regional haze SIP is to ensure that no 
dramatic or unexpected changes in emissions inventories have rendered 
unreliable the earlier projections of emissions in 2018.
    In West Virginia's progress report SIP, EPA believes that West 
Virginia provided a reasonable summary of the emissions reductions 
achieved through the measures in the regional haze SIP by focusing on 
those sources of pollution in West Virginia with the biggest impact on 
haze. Because SO2 reductions from West Virginia's EGUs are 
the key element of the State's regional haze strategy, West Virginia 
discussed in its progress report SIP the significant SO2 
emission reductions from EGUs since submittal of its regional haze SIP. 
West Virginia also assessed the downward trend in SO2 
emissions and emission rates in comparison to heat input at these units 
and concluded that overall the data was indicative of the fact that the 
reductions were the result of the installation of controls and the use 
of cleaner burning fuels. See West Virginia State Implementation Plan 
Revision: Regional Haze 5-Year Periodic Report (Covering 2008-2013), 
Section 3.1 (April 30, 2013).\4\ Although West Virginia did not link 
the specific reductions in the emission inventory to specific measures 
in the regional haze SIP, the State did provide source-specific 
information on its coal-fired EGUs. For each of these units, the State 
identified the current status of SO2 controls and shutdowns 
as well as the projected controls and shutdowns that were included in 
the regional haze SIP and the estimated and actual SO2 
reductions in 2009. Id. at p. 50-54 (Table 16). Taken together, West 
Virginia's summary of the SO2 emissions reductions is 
sufficient for the State to evaluate whether a mid-course correction in 
its regional haze SIP is needed. As West Virginia's progress report 
shows, emissions from these facilities are far below what was projected 
in its regional haze SIP.
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    \4\ The April 30, 2013 West Virginia State Implementation Plan 
Revision: Regional Haze 5-Year Periodic Report (Covering 2008-2013) 
is available in the docket for this action under Docket ID Number 
EPA-R03-OAR-2013-0423 at www.regulations.gov.
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    In sum, EPA believes West Virginia sufficiently discussed in its 
progress report SIP revision the emission reductions which resulted 
from numerous enforceable requirements found in West Virginia's 
regional haze SIP. West Virginia's progress report discussed numerous 
Federal and state enforceable measures which are responsible for 
emissions reductions in West Virginia and which correlate to improved 
visibility, including the Clean Air Interstate Rule (CAIR), the MACT 
programs, the 2007 Heavy-Duty

[[Page 32022]]

Highway Rule, the Tier 2 Vehicle and Gasoline Sulfur Program, the 
Nonroad Diesel Emissions Program, Federal consent decrees resolving 
enforcement actions against EGUs and non-EGUs, and best available 
retrofit technology (BART) determinations for sources located within 
West Virginia and sources within a 300 kilometer radius of Dolly Sods 
or Otter Creek. West Virginia also discussed measures from other states 
which may have led to improvements in visibility in West Virginia 
including the North Carolina Clean Smokestacks Act, Georgia 
Multipollutant Control for Electric Utility Steam Generating Units, and 
the Maryland Health Air Act. Additionally, in the progress report SIP 
revision, West Virginia compared emissions inventories prior to and 
after the implementation of the West Virginia regional haze SIP, a 
comparison which show substantial reductions of visibility impairing 
pollutants such as SO2. Because West Virginia demonstrated 
that these Federal and state enforceable measures contributed to the 
reduction of visibility impairing pollutants, EPA concluded West 
Virginia adequately addressed 40 CFR 51.308(g)(2) requirements for a 
summary of emission reductions in its progress report. Therefore, EPA 
disagrees with the Commenter that EPA should disapprove the West 
Virginia progress report SIP and disagrees that any further information 
or analysis is required.
    Comment 2: The Commenter claimed that West Virginia's progress 
report SIP revision did not meet the requirements of 40 CFR 
51.308(g)(3) because the visibility data presented by West Virginia 
appeared within a graph and was not quantified in a clear, tabular 
manner. Additionally, the Commenter alleged that West Virginia confused 
the State's meeting the uniform rate of progress for Dolly Sods with 
meeting its RPGs for Dolly Sods.
    Response 2: EPA disagrees with the Commenter that West Virginia's 
progress report is lacking the required visibility monitoring 
information. 40 CFR 51.308(g)(3) only requires the following visibility 
information measured in deciviews for the most impaired and least 
impaired days for each area, with values expressed in terms of five-
year averages of these annual values: (1) Current visibility 
conditions; (2) the difference between current visibility conditions 
and baseline visibility conditions; and (3) the change in visibility 
impairment over the past five years. Nothing in 40 CFR 51.308(g)(3) 
requires the visibility data to be provided in a tabular format versus 
the graphical format used in West Virginia's progress report, even 
though a tabular format may facilitate easier review of the data. As 
stated in our NPR, EPA believes West Virginia provided the required 
information regarding visibility conditions and changes to meet the 
requirements under 40 CFR 51.308(g)(3), specifically providing current 
conditions based on the latest available Interagency Monitoring of 
Protected Visual Environments (IMPROVE) monitoring data, the difference 
between current visibility conditions and baseline visibility 
conditions, and the change in visibility impairment over the most 
recent five-year period for which data were available at the time of 
the progress report SIP development. EPA believes the fact that West 
Virginia presented this required information in graphical versus 
tabular format is irrelevant to our conclusion that West Virginia 
adequately addressed requirements in 40 CFR 51.308(g)(3).
    While EPA agrees with the Commenter that West Virginia did 
inadvertently state in its progress report on one page that it was 
``meeting its RPG'' for Dolly Sods, EPA disagrees with the Commenter 
that this inadvertent misstatement has any relevance to the 
approvability of West Virginia's progress report generally or to EPA's 
conclusion that West Virginia has adequately addressed 40 CFR 
51.308(g)(3) specifically, as discussed above and in the NPR. In 
particular, West Virginia appropriately discussed in its progress 
report on pages 59-60 that an analysis of emission reductions in West 
Virginia indicates the State is ``on track to achieve'' its RPGs in 
2018 at Dolly Sods and that visibility at Dolly Sods had significantly 
improved since 2000. West Virginia's progress report also graphically 
displayed the State's progress towards its RPGs at Dolly Sods for 2018. 
Therefore, EPA views West Virginia's statement on one page that it is 
``meeting its RPG'' as inadvertent as West Virginia otherwise correctly 
indicates in its progress report that the State is making reasonable 
progress towards achieving its RPGs at Dolly Sods by 2018. While EPA 
agrees with the Commenter that further emission reductions are needed 
for West Virginia to meet fully its RPGs in 2018 at Dolly Sods, EPA 
concludes West Virginia has appropriately addressed requirements of 40 
CFR 51.308(g)(3) through its presentation of visibility data. For the 
reasons discussed herein and discussed more fully in our NPR, EPA 
believes West Virginia has demonstrated it is making reasonable 
progress towards its RPGs for 2018 and that its regional haze SIP is 
adequate, requiring no further revisions to the regional haze SIP at 
this time for any additional emission reduction requirements for West 
Virginia to achieve its RPGs in 2018.
    Comment 3: The Commenter alleged that West Virginia's progress 
report SIP revision does not meet the requirements of 40 CFR 
51.308(g)(6). The Commenter stated EPA's proposed approval of the West 
Virginia progress report SIP left unexamined West Virginia's assertion 
it was on track to meet its RPGs in 2018 and did not quantify how West 
Virginia's emission reductions would continue. The Commenter claimed 
projected emission reductions from Federal programs like the Mercury 
Air Toxics Standards (MATS) for EGUs and the 2010 SO2 NAAQS 
are neither quantified nor necessarily enforceable at this time. 
Additionally, the Commenter claimed none of the annual visibility 
values for Dolly Sods have yet achieved the RPGs and therefore more 
emission reductions are necessary. The Commenter stated EPA and West 
Virginia have avoided review of additional controls on non-EGUs. The 
Commenter claimed West Virginia committed in its regional haze SIP to 
review the need for additional controls at non-EGUs in its five-year 
progress report and therefore inappropriately concluded in its progress 
report that additional controls on non-EGUs were not necessary as the 
State was making progress towards its RPGs. The Commenter asserted some 
initial emission reductions in West Virginia resulted from controls, 
fuel switches, and shutdowns and as such are not necessarily 
enforceable. The Commenter claimed these reductions must be maintained 
and additional enforceable reductions from other source categories will 
be needed for West Virginia to meet its RPGs by 2018.
    Response 3: EPA disagrees with the Commenter's allegation that West 
Virginia's progress report SIP revision does not meet the requirements 
of 40 CFR 51.308(g)(6). EPA views this requirement as a qualitative 
assessment, in light of emissions and visibility trends and other 
readily available information, as to whether Class I areas affected by 
emissions from a state are on track to meet their 2018 RPGs. See 
Progress Report General Principles at 16. In the NPR, EPA has described 
in detail how West Virginia's progress report provides such a 
qualitative assessment that Class I areas impacted by emissions from 
sources within West Virginia are on track to achieve their RPGs by 
2018. EPA believes that the enforceable measures taken into 
consideration in West Virginia's

[[Page 32023]]

regional haze SIP have contributed to the significant emissions 
reductions in West Virginia as discussed in the progress report, 
particularly in the visibility impairing pollutant SO2. West 
Virginia's progress report included visibility monitoring data which 
clearly demonstrated visibility improvement in the Class I areas 
impacted by West Virginia sources. Even though the emissions reductions 
are not specifically linked causally to specific measures in the 
State's regional haze SIP, EPA believes the enforceable measures in the 
SIP do and will continue to contribute to reductions in emissions and 
that these measures have led to the visibility improvement indicated by 
monitored data contained in West Virginia's progress report SIP 
revision submittal. While West Virginia in its progress report did 
identify several factors not in the West Virginia regional haze SIP 
such as shutdowns and fuel switches that have reduced emissions from 
sources within the State, West Virginia did not rely on these to 
demonstrate that the implementation plan for the State is sufficient 
for purposes of this review. West Virginia included a discussion of 
these factors in the progress report to make clear that additional 
factors beyond the measures in the SIP and federal implementation plan 
(FIP) have contributed to the large emissions reductions seen 
throughout the state, particularly in SO2 emissions which 
have been identified as the primary contributor to visibility 
impairment in West Virginia and in the Visibility Improvement State and 
Tribal Association of the Southeast (VISTAS) region. West Virginia did 
not account for these factors in its original regional haze SIP as the 
shutdowns and fuel switches occurred after the development of the 
regional haze SIP and in many cases are not enforceable, as noted by 
the commenter. However, for this progress report SIP revision and to 
address requirements in 40 CFR 51.308(g)(1)-(7), including 40 CFR 
51.308(g)(6) specifically, West Virginia only needed to show that it is 
on track to achieve its RPGs in 2018. According to the monitored 
visibility data presented in the State's progress report SIP submittal, 
West Virginia is on the glidepath to meeting its RPGs by 2018, and the 
Class I areas impacted by West Virginia sources are also on track to 
meet their RPGs by 2018. In addition, as discussed in the West Virginia 
progress report SIP submittal, many of the Federal and state measures 
in West Virginia's regional haze SIP are just beginning to be 
implemented and as such further emission reductions, particularly in 
SO2 emissions, can be expected which will enable West 
Virginia to continue to make further progress towards its RPGs for 
2018.\5\ Therefore, EPA disagrees with the commenters' assertion that 
more emissions reduction measures particularly from non-EGUs are needed 
for West Virginia's regional haze SIP for Dolly Sods and Otter Creek 
(or other Class I areas impacted by West Virginia emissions) to meet 
RPGs.
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    \5\ Specifically, EPA notes that additional SO2 
reductions will likely result from full implementation of MATS at 
West Virginia EGUs during this first implementation period, from 
additional implementation and restrictions from full implementation 
of CSAPR which EPA promulgated to replace CAIR and is expected to 
lead to further EGU emission reductions, and from West Virginia's 
implementation of the 2010 SO2 NAAQS. Many coal-fired 
EGUs have also announced plans to deactivate in 2015 including 
several plants in West Virginia, including Albright, Kammer, Kanawha 
River, Phillip Sporn and Rivesville, as well as plants or individual 
units at plants in states neighboring West Virginia including Glen 
Lynn, Walter C. Beckjord, Muskingum River, Elrama, Clinch River, 
Eastlake, Ashtabula, and Big Sandy. Additional SO2 
reductions will likely result from the deactivations of these coal-
fired EGUs. For a listing of EGUs planning to deactivate in the 
states which are part of PJM Interconnection, L.L.C., a regional 
transmission organization which coordinates the movement of 
wholesale electricity within states including West Virginia, see 
http://www.pjm.com/planning/generation-deactivation/gd-summaries.aspx.
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    Comment 4: The Commenter stated that EPA cannot approve West 
Virginia's progress report as it relies on CAIR. The Commenter stated 
CAIR was ``struck down'' by the D.C. Circuit as fundamentally flawed. 
The Commenter also generally challenged the legality of using CAIR to 
meet any regional haze requirements. The Commenter ``reiterated'' its 
prior comments that CAIR is ill-suited to address regional haze and 
that EPA cannot use a ``cap-and-trade'' program with yearly averaging 
to address sources with hourly effects on Class I areas. The Commenter 
stated the lack of source-specific BART is an impediment to the 
implementation of the regional haze program. In addition, the Commenter 
stated that EPA had previously issued a limited disapproval of West 
Virginia's regional haze SIP due to reliance on CAIR. The Commenter 
stated EPA had also previously said in a rulemaking on Florida's 
regional haze SIP that the five year progress report would be the 
appropriate time to address any necessary changes to reasonable 
progress goal demonstrations and long term strategies. The Commenter 
mentioned both West Virginia's regional haze SIP and progress report 
SIP rely heavily on CAIR for modeling assumptions, controls, emission 
estimates, and as an alternative to source-specific BART requirements 
for EGUs. The Commenter mentioned EPA only addressed CAIR in the 
proposed approval of the progress report when discussing the limited 
disapproval of West Virginia's regional haze SIP and stated EPA's 
approval of the West Virginia progress report was inconsistent with 
prior EPA positions, unsupported by the facts and arbitrary and 
capricious as a matter of law.
    Response 4: EPA disagrees with the Commenter that EPA cannot 
approve West Virginia's five year progress report because the progress 
report relies on emission reductions from CAIR or because portions of 
West Virginia's regional haze SIP relied on CAIR.\6\ On March 23, 2012 
(77 FR 16937), EPA finalized a limited approval and limited disapproval 
of West Virginia's June 18, 2008 regional haze SIP to address the first 
implementation period for regional haze.\7\ There was a limited 
disapproval of this SIP because of West Virginia's reliance on CAIR to 
meet certain regional haze requirements.\8\ In our

[[Page 32024]]

SNPR, EPA described the litigation history and status of CAIR in great 
detail, including the fact that CAIR was replaced with CSAPR (76 FR 
48208 (August 8, 2011)) after West Virginia had developed and submitted 
its regional haze SIP. CSAPR requires substantial reductions of 
SO2 and NOX emissions from EGUs in 28 states in 
the Eastern United States that significantly contribute to downwind 
nonattainment of the 1997 PM2.5 and ozone NAAQS and 2006 
PM2.5 NAAQS. On January 1, 2015, EPA sunset CAIR and began 
implementing CSAPR after the D.C. Circuit lifted the stay on CSAPR 
following the Supreme Court's decision upholding CSAPR.
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    \6\ To address interstate transport of air pollution, CAIR 
required certain states like West Virginia to reduce emissions of 
SO2 and nitrogen oxides (NOX) that 
significantly contribute to downwind nonattainment of the 1997 NAAQS 
for PM2.5 and ozone. See 70 FR 25162 (May 12, 2005). CAIR 
relied upon cap-and-trade programs to reduce SO2 and 
NOX emissions and applied to 27 eastern states, including 
West Virginia. EPA approved West Virginia's regulations implementing 
CAIR as part of the Federally enforceable West Virginia SIP on 
August 4, 2009. 74 FR 38536.
    \7\ Although EPA gave limited approval to West Virginia's 
regional haze SIP (77 FR 16932) due to West Virginia's reliance on 
CAIR, a limited approval results in approval of the entire SIP 
submittal, even of those parts that are deficient and prevent EPA 
from granting a full approval pursuant to sections 301(a) and 
110(k)(6) of the CAA and EPA's long-standing guidance. See 
Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (1992 Calcagni Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. Thus, the limited 
approval status of West Virginia's regional haze SIP does not impact 
EPA's approval of this five year progress report SIP in any way.
    \8\ In 2008, the United States Court of Appeals for the District 
of Columbia Circuit initially vacated CAIR, North Carolina v. EPA, 
531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to 
EPA without vacatur to preserve the environmental benefits provided 
by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 
2008). Therefore, EPA disagrees with the Commenter's 
characterization that CAIR was ``struck down'' by the Court as the 
D.C. Circuit has only remanded CAIR to EPA without vacatur. After 
much litigation on CAIR and its replacement CSAPR as discussed in 
our SNPR, EPA sunset CAIR in December 2014 and began implementing 
CSAPR on January 1, 2015. See 79 FR 71663 (December 3, 2014) 
(interim final rulemaking EPA issued an interim final rule to 
clarify how EPA will implement CSAPR consistent with the Order from 
D.C. Circuit order lifting the stay of CSAPR and tolling the rule's 
deadlines).
---------------------------------------------------------------------------

    As explained in detail in the SNPR and here in summary fashion, EPA 
does not believe that the status of CAIR or CSAPR affects the 
approvability of West Virginia's progress report SIP for several 
reasons. First, CAIR was in effect for the period of time addressed by 
West Virginia's progress report (2008-2013). Therefore, West Virginia 
appropriately evaluated and relied on CAIR reductions from EGUs of 
significant emissions of NOX and SO2 to 
demonstrate the State's progress towards meeting its RPGs.\9\ EPA's 
intention in requiring the progress reports pursuant to 40 CFR 
51.308(g) was for the states to demonstrate progress achieved during 
the current implementation period addressed by the regional haze SIP. 
Thus, West Virginia appropriately relied upon CAIR reductions for 
demonstrating progress towards its RPGs from 2008-2013. And as 
explained in the SNPR, given that CAIR was in place until recently, it 
is appropriate to rely on CAIR emission reductions during this period 
for purposes of assessing the adequacy of West Virginia's progress 
report pursuant to 40 CFR 51.308(g) and (h).
---------------------------------------------------------------------------

    \9\ EPA discussed in the NPR the significance of reductions in 
SO2 as West Virginia and VISTAS identified SO2 
as the largest contributor pollutant to visibility impairment in 
West Virginia specifically and in the VISTAS region generally.
---------------------------------------------------------------------------

    Second, the State's regional haze program now includes reliance on 
CSAPR for SO2 and NOX reductions, at least 
throughout the remainder of this first implementation period until 
2018. EPA's June 7, 2012 FIP replaced West Virginia's reliance on CAIR 
with reliance on CSAPR to meet certain regional haze requirements. 
Because the Regional Haze Rule discusses requirements for 
``implementation plans'' which are defined in the visibility program to 
include approved SIPs or FIPs, EPA considered measures in its June 7, 
2012 regional haze FIP as well as in the State's regional haze SIP in 
assessing the State's progress report for 40 CFR 51.308(g) and (h). EPA 
explained in the SNPR that the requirements of the regional haze 
program are fully addressed in West Virginia through its SIP and the 
FIP issued by EPA. As also discussed in the SNPR, EPA expects the 
SO2 and NOX emissions reductions at EGUs in West 
Virginia to continue through the remainder of the first implementation 
period in 2018 due to implementation of CSAPR.
    Finally, the Regional Haze Rule provides for continual evaluation 
and assessment of a state's reasonable progress towards achieving the 
national goal of natural visibility conditions. West Virginia has the 
opportunity to reassess its RPGs and the adequacy of its regional haze 
SIP, including reliance upon CSAPR for emission reductions from EGUs, 
when it prepares and submits its second regional haze SIP to cover the 
implementation period from 2018 through 2028 or when the State prepares 
its next periodic progress report. However, as evaluated for this 
progress report, emissions of SO2 from EGUs are presently 
far below original projections for 2018, visibility data provided by 
West Virginia show the Federal Class I areas impacted by West Virginia 
sources are all on track to achieve their RPGs, and EPA expects 
SO2 emission reductions in West Virginia to continue through 
CSAPR and MATS and through expected EGU deactivations scheduled for 
2015. These continued emission reductions will assist West Virginia in 
making reasonable progress towards natural visibility conditions in 
2064. As further measures will be needed to make continued progress 
towards the national goal, West Virginia has the opportunity to include 
such measures in subsequent SIPs for future implementation periods. See 
Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. 
Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 
57 F.3d 1122, 1123 (D.C. Cir. 1995)) (discussing that states have 
primary responsibility for determining an emission reductions program 
for its areas subject to EPA approval).
    Thus, neither the status of CAIR (which has now sunset) nor CSAPR 
(which is being implemented) impacts our decision to approve West 
Virginia's progress report SIP. This SIP includes an adequate 
discussion of the implementation of regional haze SIP measures--
including CAIR--and of the significant emission reductions achieved.
    In addition, EPA disagrees with Commenter that EPA's approval of 
West Virginia's progress report which relies on CAIR reductions is 
inconsistent with EPA's prior actions. In fact, EPA has approved 
redesignations of areas to attainment of the 1997 PM2.5 
NAAQS in which states relied on CAIR as an ``enforceable measure.'' See 
77 FR 76415 (December 28, 2012); 78 FR 59841 (September 30, 2013); and 
78 FR 56168 (September 12, 2013).
    Because EPA expects SO2 and NOX emissions 
from EGUs to continue through CSAPR and other measures and because 
future West Virginia regional haze SIP submissions due pursuant to 40 
CFR 51.308(f) and (g) will continue to evaluate West Virginia's 
progress towards natural conditions, EPA believes it is appropriate to 
approve fully West Virginia's progress report as meeting requirements 
of 40 CFR 51.308(g)(1)-(7) and (h) at this time. Thus, EPA disagrees 
with the Commenter that EPA's approval of the West Virginia progress 
report is inconsistent with EPA's prior position, unsupported by the 
facts, or arbitrary and capricious as a matter of law.
    Further, EPA disagrees with the Commenter's ``reiterated'' 
statements concerning the validity of using an emissions trading 
program, such as CAIR or CSAPR, to meet regional haze requirements such 
as BART. As EPA's 2012 review of the West Virginia regional haze SIP 
explains, the State relied on CAIR to achieve significant reductions in 
emissions to meet both the BART requirements and to address impacts 
from West Virginia sources in Class I areas. 77 FR 16932. West 
Virginia's reliance upon CAIR as an alternative to source-specific BART 
at the time of the submittal of West Virginia's regional haze SIP in 
2008 to EPA was supported by precedent from the D.C. Circuit as well as 
EPA's regulations at 40 CFR 51.308(e). CAIR was specifically upheld as 
an alternative to BART in accordance with the requirements of section 
169A of the CAA by the D.C. Circuit in Utility Air Regulatory Group v. 
EPA. 471 F.3d 1333 (D.C. Cir. 2006). The D.C. Circuit concluded that 
the EPA's two-pronged test for determining whether an alternative 
program achieves greater reasonable progress was a reasonable one and 
also agreed with EPA that nothing in the CAA required the EPA to 
``impose a separate technology mandate for sources whose emissions 
affect Class I areas, rather than piggy-backing on solutions devised 
under other statutory categories, where such solutions meet the 
statutory requirements.'' Id. at 1340. See also Center for Energy and 
Economic Development v. EPA, 398 F.3d 653, 660 (D.C. Cir. 2005) 
(finding

[[Page 32025]]

reasonable EPA's interpretation of section 169A(b)(2) of the CAA as 
requiring BART only as necessary to make reasonable progress). Thus, 
EPA disagrees with the Commenter that EPA cannot use cap-and-trade 
programs to address effects of sources in Class I areas and disagrees 
that the use of alternatives to source-specific BART is an impediment 
to states achieving reasonable progress as required by section 169A of 
the CAA.
    EPA also notes in general that the comments regarding CAIR as 
adequate for regional haze requirements are beyond the scope of this 
rulemaking action. In this rulemaking action, EPA is finalizing 
approval of West Virginia's progress report SIP and did not propose to 
find that participation in CSAPR or CAIR is an alternative to BART in 
this rulemaking action. Moreover, EPA did not reopen discussions on the 
CAIR or CSAPR provisions as they relate to BART in assessing the 
progress report.\10\
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    \10\ In a separate action, EPA found CSAPR is ``Better than 
BART.'' See 76 FR 82219 (December 30, 2011) (proposal of CSAPR as 
``Better than BART'') and 77 FR 33641 (June 7, 2012) (addressing 
comments concerning CSAPR as a BART alternative in the final 
action). EPA's responses to these comments can be found in Docket ID 
No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.
---------------------------------------------------------------------------

    Finally, EPA also generally disagrees with the Commenter that EPA 
did not discuss CAIR in EPA's NPR. EPA discussed CAIR, as well as 
emission reductions from CAIR, when assessing West Virginia's five year 
progress report as meeting requirements in 40 CFR 51.308(g)(1) and (2). 
CAIR, as an EGU control strategy, was one measure from West Virginia's 
regional haze SIP discussed in EPA's analysis of implementation of SIP 
measures for 40 CFR 51.308(g)(1), and emission reductions of 
SO2 and NOX from EGUs generally resulting from 
implementation of CAIR are discussed in EPA's analysis of West 
Virginia's progress report for 40 CFR 51.308(g)(2). See 79 FR at 11462-
11463. In addition, in EPA's SNPR, EPA discussed the litigation history 
and status of CAIR and CSAPR and the effects of those programs on West 
Virginia's regional haze SIP in detail and provided an opportunity for 
comment on these issues. 80 FR at 12609-12611.
    In summary, EPA does not view West Virginia's reliance through 
December 2014 upon CAIR for BART or for any other part of the regional 
haze SIP as a reason to disapprove the West Virginia progress report.
    Comment 5: The Commenter expressed support for the maintenance of 
the IMPROVE visibility monitoring network. The Commenter stated it 
would like funding to continue for this monitoring network and would 
like EPA to advocate for funding of this network. The Commenter also 
stated its support for continuing funding for VISTAS' work for 
additional ``understanding of source contributions to PM2.5 
mass and visibility impairment or continued operation of VISTAS Web 
site.''
    Response 5: EPA thanks the Commenter for expressing its support for 
the IMPROVE monitoring network and for the work by VISTAS. In its 
progress report SIP, West Virginia summarized the existing visibility 
monitoring network at Dolly Sods and Otter Creek and discussed the 
State's intended continued reliance on the IMPROVE monitoring network 
for its visibility planning. West Virginia concluded that the existing 
network is adequate and that no modifications to visibility monitoring 
strategy were necessary. In EPA's NPR, EPA concluded that West Virginia 
adequately addressed the sufficiency of its monitoring strategy as 
required by 40 CFR 51.308(g)(7), and EPA accordingly proposed approval 
of the West Virginia progress report. Additional funding concerns for 
VISTAS as raised by the Commenter are beyond the scope of this 
rulemaking.
    Comment 6: The SNPR Commenter stated that EPA's reasons to approve 
the progress report are sound and stated it supported approval of the 
progress report SIP. The SNPR Commenter stated that CAIR was in the 
West Virginia SIP and in effect and enforceable throughout the period 
relevant to West Virginia's assessment of progress. The SNPR Commenter 
also agreed with EPA that EPA may consider a FIP as well as a SIP in 
evaluating a regional haze program under 40 CFR 51.308(g)(6) and (h). 
Finally, the SNPR Commenter stated EPA had a sound basis to approve the 
West Virginia progress report SIP based on the status of CAIR and CSAPR 
and stated reliance on CSAPR for further progress toward applicable 
RPGs in West Virginia and other affected states was appropriate as 
CSAPR has taken effect. The SNPR Commenter noted, however, that EPA had 
no valid basis for its limited disapproval of West Virginia's regional 
haze SIP based on West Virginia's reliance upon CAIR as a BART 
alternative.
    Response 6: EPA appreciates the supportive comments from the SNPR 
Commenter and its agreement with EPA's analysis in the NPR and SNPR. 
The SNPR Commenter's statement regarding EPA's prior limited approval 
of West Virginia's regional haze SIP is beyond the scope of this 
rulemaking and therefore no further response is provided.

IV. Final Action

    EPA is approving West Virginia's regional haze five-year progress 
report SIP revision, submitted on April 30, 2013, as meeting the 
applicable regional haze requirements as set forth in 40 CFR 51.308(g) 
and 51.308(h).

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 Order 
12866 (58 FR 51735, October 4, 1993);
     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

[[Page 32026]]

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 August 4, 2015. 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 to approve West Virginia's regional haze five-year 
progress report SIP revision 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, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur dioxide, 
Volatile organic compounds.

    Dated: May 26, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended 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 Regional Haze Five-Year Progress Report at the end of the 
table to read as follows:

Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                                   State
 Name of non-regulatory SIP revision    Applicable geographic    submittal      EPA approval date     Additional
                                                area                date                             explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Five-Year Progress      Statewide...............     4/30/13   6/5/15 [Insert Federal
 Report.                                                                      Register Citation].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-13801 Filed 6-4-15; 8:45 am]
 BILLING CODE 6560-50-P
```