`[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Proposed Rules]
[Pages 6932-6954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01101]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2024-0625; FRL-10253-01-R3]


Air Plan Disapproval; West Virginia; Regional Haze State 
Implementation Plan for the Second Implementation Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove a revision to West Virginia's State Implementation Plan 
(SIP) submitted by the West Virginia Department of Environmental 
Protection (WV DEP) on August 12, 2022. The SIP was submitted to 
satisfy applicable requirements under the Clean Air Act (CAA) and EPA's 
Regional Haze Rule (RHR) for the program's second planning period. If 
finalized, disapproval does not start a mandatory sanctions clock. The 
EPA is taking this action pursuant to sections 110 and 169A of the 
Clean Air Act.

DATES: Written comments must be received on or before February 20, 
2025.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2024-0625 at www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. For either manner of submission, the EPA may publish 
any comment received to its public docket. Do not submit electronically 
any information you consider to be confidential business information 
(CBI) or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Adam Yarina, U.S. Environmental 
Protection Agency, Region 3, 1600 John F. Kennedy Boulevard, 
Philadelphia, Pennsylvania 19103-2852, at (215) 814-2108, or by email 
at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to the EPA.

I. What action is the EPA proposing?

    The EPA is proposing to disapprove West Virginia's Regional Haze 
plan for the second planning period. As required by sections 169A and 
169B of the CAA, the Federal RHR at 40 CFR 51.308 calls for State and 
Federal agencies to work together to improve visibility in 156 national 
parks and wilderness areas. The rule requires the States, in 
coordination with the EPA, the U.S. National Parks Service (NPS), U.S. 
Fish and Wildlife Service (FWS), the U.S. Forest Service (USFS), and 
other interested parties, to develop and implement air quality 
protection plans to reduce the pollution that causes visibility 
impairment in mandatory Class I Federal areas. Visibility impairing 
pollutants include fine and coarse particulate matter (PM) (e.g., 
sulfates, nitrates, organic carbon, elemental carbon, and soil dust) 
and their precursors (e.g., sulfur dioxide (SO2), oxides of 
nitrogen (NOX), and, in some cases, volatile organic 
compounds (VOC) and ammonia (NH3)). As discussed in further 
detail below, the EPA is proposing to find that West Virginia has 
submitted a Regional Haze plan that does not meet the statutory and 
regulatory Regional Haze requirements for the second planning period. 
The State's 2022 submission can be found in the docket for this action.

II. Background and Requirements for Regional Haze Plans

A. Regional Haze Background

    In the 1977 CAA Amendments, Congress created a program for 
protecting visibility in the nation's mandatory Class I Federal areas, 
which include certain national parks and wilderness areas.\1\ CAA 
section 169A. The CAA establishes as a national goal the ``prevention 
of any future, and the remedying of any existing, impairment of 
visibility in mandatory class I Federal

[[Page 6933]]

areas which impairment results from manmade air pollution.'' CAA 
section 169A(a)(1). The CAA further directs the EPA to promulgate 
regulations to assure reasonable progress toward meeting this national 
goal. CAA section 169A(a)(4). On December 2, 1980, the EPA promulgated 
regulations to address visibility impairment in mandatory Class I 
Federal Areas (hereinafter referred to as ``Class I Areas'') that is 
``reasonably attributable'' to a single source or small group of 
sources. (45 FR 80084, December 2, 1980). These regulations, codified 
at 40 CFR 51.300 through 51.307, represented the first phase of the 
EPA's efforts to address visibility impairment. In 1990, Congress added 
section 169B to the CAA to further address visibility impairment, 
specifically, impairment from Regional Haze. CAA 169B. The EPA 
promulgated the RHR, codified at 40 CFR 51.308,\2\ on July 1, 1999. (64 
FR 35714, July 1, 1999). These Regional Haze regulations are a central 
component of the EPA's comprehensive visibility protection program for 
Class I Areas.
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    \1\ Areas statutorily designated as mandatory Class I Federal 
Areas consist of national parks exceeding 6,000 acres, wilderness 
areas and national memorial parks exceeding 5,000 acres, and all 
international parks that were in existence on August 7, 1977. CAA 
162(a). There are 156 mandatory Class I Areas. The list of areas to 
which the requirements of the visibility protection program apply is 
in 40 CFR part 81, subpart D.
    \2\ In addition to the generally applicable Regional Haze 
provisions at 40 CFR 51.308, the EPA also promulgated regulations 
specific to addressing Regional Haze visibility impairment in Class 
I Areas on the Colorado Plateau at 40 CFR 51.309. The latter 
regulations are applicable only for specific jurisdictions' Regional 
Haze plans submitted no later than December 17, 2007, and thus are 
not relevant here.
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    Regional Haze is visibility impairment that is produced by a 
multitude of anthropogenic sources and activities which are located 
across a broad geographic area and that emit pollutants that impair 
visibility. Visibility impairing pollutants include fine and coarse PM 
(e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil 
dust) and their precursors (e.g., SO2, NOX, and, 
in some cases, VOC and NH3). Fine particle precursors react 
in the atmosphere to form fine PM (PM2.5), which impairs 
visibility by scattering and absorbing light. Visibility impairment 
reduces the perception of clarity and color, as well as visible 
distance.\3\
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    \3\ There are several ways to measure the amount of visibility 
impairment, i.e., haze. One such measurement is the deciview, which 
is the principal metric used by the RHR. Under many circumstances, a 
change in one deciview will be perceived by the human eye to be the 
same on both clear and hazy days. The deciview is unitless. It is 
proportional to the logarithm of the atmospheric extinction of 
light, which is the perceived dimming of light due to its being 
scattered and absorbed as it passes through the atmosphere. 
Atmospheric light extinction (bext.) is a metric used for expressing 
visibility and is measured in inverse megameters (Mm-1). The EPA's 
Guidance on Regional Haze State Implementation Plans for the Second 
Implementation Period (``2019 Guidance'') offers the flexibility for 
the use of light extinction in certain cases. Light extinction can 
be simpler to use in calculations than deciviews, since it is not a 
logarithmic function. See, e.g., 2019 Guidance at 16, 19, 
www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period,The EPA Office of Air Quality 
Planning and Standards, Research Triangle Park (August 20, 2019). 
The formula for the deciview is 10 ln (bext.)/10 Mm-1). 40 CFR 
51.301.
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    To address Regional Haze visibility impairment, the 1999 RHR 
established an iterative planning process that requires both States in 
which Class I Areas are located and States ``the emissions from which 
may reasonably be anticipated to cause or contribute to any impairment 
of visibility'' in a Class I Area to periodically submit SIP revisions 
to address such impairment. CAA section 169A(b)(2); \4\ see also 40 CFR 
51.308(b), (f) (establishing submission dates for iterative Regional 
Haze SIP revisions); (64 FR 35768, July 1, 1999). Under the CAA, each 
SIP submission must contain ``a long-term (ten to fifteen years) 
strategy for making reasonable progress toward meeting the national 
goal,'' CAA section 169A(b)(2)(B); the initial round of SIP submissions 
also had to address the statutory requirement that certain older, 
larger sources of visibility impairing pollutants install and operate 
the best available retrofit technology (BART). CAA section 
169A(b)(2)(A); 40 CFR 51.308(d), (e). States' first Regional Haze SIPs 
were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP 
submissions containing an updated long-term strategy (LTS) originally 
due July 31, 2018, and every ten years thereafter. (64 FR 35768, July 
1, 1999). The EPA established in the 1999 RHR that all States either 
have Class I Areas within their borders or ``contain sources whose 
emissions are reasonably anticipated to contribute to Regional Haze in 
a Class I Area''; therefore, all States must submit Regional Haze 
SIPs.\5\ Id. at 35721.
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    \4\ The RHR expresses the statutory requirement for states to 
submit plans addressing out-of-state Class I Areas by providing that 
states must address visibility impairment ``in each mandatory Class 
I Federal Area located outside the State that may be affected by 
emissions from within the State.'' 40 CFR 51.308(d), (f).
    \5\ In addition to each of the fifty states, the EPA also 
concluded that the Virgin Islands and District of Columbia must also 
submit Regional Haze SIPs because they either contain a Class I Area 
or contain sources whose emissions are reasonably anticipated to 
contribute Regional Haze in a Class I Area. See 40 CFR 51.300(b), 
(d)(3).
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    Much of the focus in the first implementation period of the 
Regional Haze program, which ran from 2007 through 2018, was on 
satisfying States' BART obligations. First implementation period SIPs 
were additionally required to contain a long-term strategy for making 
reasonable progress toward the national visibility goal, of which BART 
is one component. The core required elements for the first 
implementation period SIPs (other than BART) are laid out in 40 CFR 
51.308(d). Those provisions required that States containing Class I 
Areas establish reasonable progress goals (RPGs) that are measured in 
deciviews and reflect the anticipated visibility conditions at the end 
of the implementation period including from implementation of States' 
long-term strategy. The first planning period RPGs were required to 
provide for an improvement in visibility for the most impaired days 
over the period of the implementation plan and ensure no degradation in 
visibility for the least impaired days over the same period. In 
establishing the RPGs for any Class I Area in a State, the State was 
required to consider four statutory factors: the costs of compliance, 
the time necessary for compliance, the energy and non-air quality 
environmental impacts of compliance, and the remaining useful life of 
any potentially affected sources. CAA section 169A(g)(1); 40 CFR 
51.308(d)(1).
    States were also required to calculate baseline (using the five-
year period of 2000-2004) and natural visibility conditions (i.e., 
visibility conditions without anthropogenic visibility impairment) for 
each Class I Area, and to calculate the linear rate of progress needed 
to attain natural visibility conditions, assuming a starting point of 
baseline visibility conditions in 2004 and ending with natural 
conditions in 2064. This linear interpolation is known as the uniform 
rate of progress (URP) and is used as a tracking metric to help States 
assess the amount of progress they are making towards the national 
visibility goal over time in each Class I Area.\6\ 40 CFR 
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States' 
long-term strategy must include the ``enforceable emissions 
limitations, compliance, schedules, and other

[[Page 6934]]

measures as necessary to achieve the reasonable progress goals.'' 40 
CFR 51.308(d)(3). In establishing their long-term strategy, States are 
required to consult with other States that also contribute to 
visibility impairment in a given Class I Area and include all measures 
necessary to obtain their shares of the emission reductions needed to 
meet the RPGs. 40 CFR 51.308(d)(3)(i) and (ii). Section 51.308(d) also 
contains seven additional factors States must consider in formulating 
their long-term strategy, 40 CFR 51.308(d)(3)(v), as well as provisions 
governing monitoring and other implementation plan requirements. 40 CFR 
51.308(d)(4). Finally, the 1999 RHR required States to submit periodic 
progress reports--SIP revisions due every five years that contain 
information on States' implementation of their Regional Haze plans and 
an assessment of whether anything additional is needed to make 
reasonable progress, see 40 CFR 51.308(g), (h)--and to consult with the 
Federal Land Manager(s) \7\ (FLMs) responsible for each Class I Area 
according to the requirements in CAA section 169A(d) and 40 CFR 
51.308(i).
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    \6\ The EPA established the URP framework in the 1999 RHR to 
provide ``an equitable analytical approach'' to assessing the rate 
of visibility improvement at Class I Areas across the country. The 
start point for the URP analysis is 2004 and the endpoint was 
calculated based on the amount of visibility improvement that was 
anticipated to result from implementation of existing CAA programs 
over the period from the mid-1990s to approximately 2005. Assuming 
this rate of progress would continue into the future, the EPA 
determined that natural visibility conditions would be reached in 60 
years, or 2064 (60 years from the baseline starting point of 2004). 
However, the EPA did not establish 2064 as the year by which the 
national goal must be reached. 64 FR 35731-32, July 1, 1999. That 
is, the URP and the 2064 date are not enforceable targets, but 
rather are tools that ``allow for analytical comparisons between the 
rate of progress that would be achieved by the state's chosen set of 
control measures and the URP.'' (82 FR 3078, 3084, January 10, 
2017).
    \7\ The EPA's regulations define ``Federal Land Manager'' as 
``the Secretary of the department with authority over the Federal 
Class I Area (or the Secretary's designee) or, with respect to 
Roosevelt-Campobello International Park, the Chairman of the 
Roosevelt-Campobello International Park Commission.'' 40 CFR 51.301.
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    On January 10, 2017, the EPA promulgated revisions to the RHR, (82 
FR 3078, January 10, 2017), that apply for the second and subsequent 
implementation periods. The 2017 rulemaking made several changes to the 
requirements for Regional Haze SIPs to clarify States' obligations and 
streamline certain Regional Haze requirements. The revisions to the 
Regional Haze program for the second and subsequent implementation 
periods focused on the requirement that States' SIPs contain long-term 
strategies for making reasonable progress towards the national 
visibility goal. The reasonable progress requirements as revised in the 
2017 rulemaking (referred to here as the 2017 RHR Revisions) are 
codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR 
Revisions adjusted the deadline for States to submit their second 
implementation period SIPs from July 31, 2018, to July 31, 2021, 
clarified the order of analysis and the relationship between RPGs and 
the long-term strategy, and focused on making visibility improvements 
on the days with the most anthropogenic visibility impairment, as 
opposed to the days with the most visibility impairment overall. The 
EPA also revised requirements of the visibility protection program 
related to periodic progress reports and FLM consultation. The specific 
requirements applicable to second implementation period Regional Haze 
SIP submissions are addressed in detail below.
    The EPA provided guidance to the States for their second 
implementation period SIP submissions in the preamble to the 2017 RHR 
Revisions as well as in subsequent, stand-alone guidance documents. In 
August 2019, the EPA issued ``Guidance on Regional Haze State 
Implementation Plans for the Second Implementation Period'' (``2019 
Guidance'').\8\ On July 8, 2021, the EPA issued a memorandum containing 
``Clarifications Regarding Regional Haze State Implementation Plans for 
the Second Implementation Period'' (``2021 Clarifications Memo'').\9\ 
Additionally, the EPA further clarified the recommended procedures for 
processing ambient visibility data and optionally adjusting the URP to 
account for international anthropogenic and prescribed fire impacts in 
two technical guidance documents: the December 2018 ``Technical 
Guidance on Tracking Visibility Progress for the Second Implementation 
Period of the Regional Haze Program'' (``2018 Visibility Tracking 
Guidance''),\10\ and the June 2020 ``Recommendation for the Use of 
Patched and Substituted Data and Clarification of Data Completeness for 
Tracking Visibility Progress for the Second Implementation Period of 
the Regional Haze Program'' and associated Technical Addendum (``2020 
Data Completeness Memo'').\11\
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    \8\ Guidance on Regional Haze State Implementation Plans for the 
Second Implementation Period, https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period, EPA Office of Air Quality Planning and 
Standards, Research Triangle Park (August 20, 2019).
    \9\ Clarifications Regarding Regional Haze State Implementation 
Plans for the Second Implementation Period, https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf, EPA Office of Air Quality Planning and Standards, 
Research Triangle Park (July 8, 2021).
    \10\ Technical Guidance on Tracking Visibility Progress for the 
Second Implementation Period of the Regional Haze Program. https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional, EPA Office of Air 
Quality Planning and Standards, Research Triangle Park. (December 
20, 2018).
    \11\ Recommendation for the Use of Patched and Substituted Data 
and Clarification of Data Completeness for Tracking Visibility 
Progress for the Second Implementation Period of the Regional Haze 
Program, www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program. EPA Office of Air 
Quality Planning and Standards, Research Triangle Park (June 3, 
2020).
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    As previously explained in the 2021 Clarifications Memo, the EPA 
intends the second implementation period of the Regional Haze program 
to secure meaningful reductions in visibility impairing pollutants that 
build on the significant progress States have achieved to date. The 
Agency also recognizes that analyses regarding reasonable progress are 
state-specific and that, based on States' and sources' individual 
circumstances, what constitutes reasonable reductions in visibility 
impairing pollutants will vary from state-to-state. While there exist 
many opportunities for States to leverage both ongoing and upcoming 
emission reductions under other CAA programs, the Agency expects States 
to undertake rigorous reasonable progress analyses that identify 
further opportunities to advance the national visibility goal 
consistent with the statutory and regulatory requirements. See 
generally 2021 Clarifications Memo. This is consistent with Congress's 
determination that a visibility protection program is needed in 
addition to the CAA's national ambient air quality standards (NAAQS) 
and prevention of significant deterioration (PSD) programs, as further 
emission reductions may be necessary to adequately protect visibility 
in Class I Areas throughout the country.\12\
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    \12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how 
to best remedy the growing visibility problem in these areas of 
great scenic importance, the committee realizes that as a matter of 
equity, the national ambient air quality standards cannot be revised 
to adequately protect visibility in all areas of the country.''), 
(``the mandatory Class I increments of [the PSD program] do not 
adequately protect visibility in Class I Areas'').
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B. Roles of Agencies in Addressing Regional Haze

    Because the air pollutants and pollution affecting visibility in 
Class I Areas can be transported over long distances, successful 
implementation of the Regional Haze program requires long-term, 
regional coordination among multiple jurisdictions and agencies that 
have responsibility for Class I Areas and the emissions that impact 
visibility in those Areas. In order to address Regional Haze, States 
need to develop strategies in coordination with one another, 
considering the effect of emissions from one jurisdiction on the air 
quality in another. Five regional planning organizations (RPOs),\13\ 
which include representation from State and

[[Page 6935]]

tribal governments, the EPA, and FLMs, were developed in the lead-up to 
the first implementation period to address Regional Haze. RPOs evaluate 
technical information to better understand how emissions from State and 
tribal land impact Class I Areas across the country, pursue the 
development of regional strategies to reduce emissions of PM and other 
pollutants leading to Regional Haze, and help States meet the 
consultation requirements of the RHR.
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    \13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this 
document, the terms RPO and MJO are synonymous.
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    The Visibility Improvement State and Tribal Association of the 
Southeast (VISTAS), one of the five RPOs described above, is a 
collaborative effort of State governments, tribal governments, and 
various Federal agencies established to initiate and coordinate 
activities associated with the management of regional haze, visibility, 
and other air quality issues in the Southeastern region of the United 
States. Member States and tribes include Alabama, Florida, Georgia, 
Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, 
Virginia, and West Virginia, the Eastern Band of Cherokee Indians, and 
Knox County, Tennessee (representing the 17 Southeastern local air 
agencies). The Federal partner members of VISTAS are the EPA, NPS, FWS, 
and USFS.

III. Requirements for Regional Haze Plans for the Second Implementation 
Period

    Under the CAA and THE EPA's regulations, all 50 States, the 
District of Columbia, and the U.S. Virgin Islands are required to 
submit regional haze SIPs satisfying the applicable requirements for 
the second implementation period of the regional haze program by July 
31, 2021. Each State's SIP must contain a long-term strategy for making 
reasonable progress toward meeting the national goal of remedying any 
existing and preventing any future anthropogenic visibility impairment 
in Class I areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays 
out the process by which States determine what constitutes their long-
term strategy, with the order of the requirements in 40 CFR 
51.308(f)(1) through (3) generally mirroring the order of the steps in 
the reasonable progress analysis \14\ and 40 CFR 51.308(f)(4) through 
(6) containing additional, related requirements. Broadly speaking, a 
State first must identify the Class I areas within the State and 
determine the Class I areas outside the State in which visibility may 
be affected by emissions from the State. These are the Class I areas 
that must be addressed in the State's long-term strategy. See 40 CFR 
51.308(f) and (f)(2). For each Class I area within its borders, a State 
must then calculate the baseline, current, and natural visibility 
conditions for that area, as well as the visibility improvement made to 
date and the URP. See 40 CFR 51.308(f)(1). Each State having a Class I 
area and/or emissions that may affect visibility in a Class I area must 
then develop a long-term strategy that includes the enforceable 
emission limitations, compliance schedules, and other measures that are 
necessary to make reasonable progress in such areas. A reasonable 
progress determination is based on applying the four factors in CAA 
section 169A(g)(1) to sources of visibility-impairing pollutants that 
the State has selected to assess for controls for the second 
implementation period. Additionally, as further explained below, the 
RHR at 40 CFR 51.3108(f)(2)(iv) separately provides five ``additional 
factors'' \15\ that States must consider in developing their long-term 
strategy. See 40 CFR 51.308(f)(2). A State evaluates potential emission 
reduction measures for those selected sources and determines which are 
necessary to make reasonable progress. Those measures are then 
incorporated into the State's long-term strategy. After a State has 
developed its long-term strategy, it then establishes RPGs for each 
Class I area within its borders by modeling the visibility impacts of 
all reasonable progress controls at the end of the second 
implementation period, i.e., in 2028, as well as the impacts of other 
requirements of the CAA. The RPGs include reasonable progress controls 
not only for sources in the State in which the Class I area is located, 
but also for sources in other States that contribute to visibility 
impairment in that area. The RPGs are then compared to the baseline 
visibility conditions and the URP to ensure that progress is being made 
towards the statutory goal of preventing any future and remedying any 
existing anthropogenic visibility impairment in Class I areas. 40 CFR 
51.308(f)(2) and (3).
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    \14\ EPA explained in the 2017 RHR Revisions that we were 
adopting new regulatory language in 40 CFR 51.308(f) that, unlike 
the structure in 51.308(d), ``tracked the actual planning 
sequence.'' (82 FR 3091, January 10, 2017).
    \15\ The five ``additional factors'' for consideration in 
section 51.308(f)(2)(iv) are distinct from the four factors listed 
in CAA section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states 
must consider and apply to sources in determining reasonable 
progress.
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    In addition to satisfying the requirements at 40 CFR 51.308(f) 
related to reasonable progress, the regional haze SIP submissions 
revisions due by July 31, 2021, for the second implementation period 
must address the requirements in 40 CFR 51.308(g)(1) through (5) 
pertaining to periodic reports describing progress towards the RPGs, 40 
CFR 51.308(f)(5), as well as requirements for FLM consultation that 
apply to all visibility protection SIPs and SIP revisions. 40 CFR 
51.308(i).
    A State must submit its regional haze SIP and subsequent SIP 
revisions to the EPA according to the requirements applicable to all 
SIP revisions under the CAA and the EPA's regulations. See CAA 
169(b)(2); CAA 110(a). Upon EPA approval, a SIP is enforceable by the 
Agency and the public under the CAA. If the EPA finds that a State 
fails to make a required SIP revision, or if the EPA finds that a 
State's SIP is incomplete or disapproves the SIP, the Agency must 
promulgate a Federal implementation plan (FIP) that satisfies the 
applicable requirements. CAA 110(c)(1).

A. Identification of Class I Areas

    The first step in developing a regional haze SIP is for a State to 
determine which Class I areas, in addition to those within its borders, 
``may be affected'' by emissions from within the State. In the 1999 
RHR, the EPA determined that all States contribute to visibility 
impairment in at least one Class I area, 64 FR 35720-22, July 1, 1999, 
and explained that the statute and regulations lay out an ``extremely 
low triggering threshold'' for determining ``whether States should be 
required to engage in air quality planning and analysis as a 
prerequisite to determining the need for control of emissions from 
sources within their State.'' Id. at 35721.
    A State must determine which Class I areas must be addressed by its 
SIP by evaluating the total emissions of visibility impairing 
pollutants from all sources within the State. While the RHR does not 
require this evaluation to be conducted in any particular manner, the 
EPA's 2019 Guidance provides recommendations for how such an assessment 
might be accomplished, including by, where appropriate, using the 
determinations previously made for the first implementation period. 
2019 Guidance at 8-9. In addition, the determination of which Class I 
areas may be affected by a State's emissions is subject to the 
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical 
basis, including modeling, monitoring, cost, engineering, and emissions 
information, on which the State is relying to determine the emission 
reduction measures that are necessary to make reasonable progress in 
each mandatory Class I Federal area it affects.''

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B. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress

    As part of assessing whether a SIP submission for the second 
implementation period is providing for reasonable progress towards the 
national visibility goal, the RHR contains requirements in 40 CFR 
51.308(f)(1) related to tracking visibility improvement over time. The 
requirements of this section apply only to States having Class I areas 
within their borders; the required calculations must be made for each 
such Class I area. The EPA's 2018 Visibility Tracking Guidance \16\ 
provides recommendations to assist States in satisfying their 
obligations under 40 CFR 51.308(f)(1); specifically, in developing 
information on baseline, current, and natural visibility conditions, 
and in making optional adjustments to the URP to account for the 
impacts of international anthropogenic emissions and prescribed fires. 
See 82 FR 3078 at 3103-05, January 10, 2017.
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    \16\ The 2018 Visibility Tracking Guidance references and relies 
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking 
Progress Under the Regional Haze Rule,'' which can be found at 
www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf.
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    The RHR requires tracking of visibility conditions on two sets of 
days: the clearest and the most impaired days. Visibility conditions 
for both sets of days are expressed as the average deciview index for 
the relevant five-year period (the period representing baseline or 
current visibility conditions). The RHR provides that the relevant sets 
of days for visibility tracking purposes are the 20% clearest (the 20% 
of monitored days in a calendar year with the lowest values of the 
deciview index) and 20% most impaired days (the 20% of monitored days 
in a calendar year with the highest amounts of anthropogenic visibility 
impairment).\17\ 40 CFR 51.301. A State must calculate visibility 
conditions for both the 20% clearest and 20% most impaired days for the 
baseline period of 2000-2004 and the most recent five-year period for 
which visibility monitoring data are available (representing current 
visibility conditions). 40 CFR 51.308(f)(1)(i) and (iii). States must 
also calculate natural visibility conditions for the clearest and most 
impaired days,\18\ by estimating the conditions that would exist on 
those two sets of days absent anthropogenic visibility impairment. 40 
CFR 51.308(f)(1)(ii). Using all these data, States must then calculate, 
for each Class I area, the amount of progress made since the baseline 
period (2000-2004) and how much improvement is left to achieve in order 
to reach natural visibility conditions.
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    \17\ This document also refers to the 20% clearest and 20% most 
anthropogenically impaired days as the ``clearest'' and ``most 
impaired'' or ``most anthropogenically impaired'' days, 
respectively.
    \18\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error 
related to the requirement for calculating two sets of natural 
conditions values. The rule says ``most impaired days or the 
clearest days'' where it should say ``most impaired days and 
clearest days.'' This is an error that was intended to be corrected 
in the 2017 RHR Revisions but did not get corrected in the final 
rule language. This is supported by the preamble text at 82 FR 3098, 
January 10, 2017: ``In the final version of 40 CFR 51.308(f)(1)(ii), 
an occurrence of ``or'' has been corrected to ``and'' to indicate 
that natural visibility conditions for both the most impaired days 
and the clearest days must be based on available monitoring 
information.''
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    Using the data for the set of most impaired days only, States must 
plot a line between visibility conditions in the baseline period and 
natural visibility conditions for each Class I area to determine the 
URP--the amount of visibility improvement, measured in deciviews, that 
would need to be achieved during each implementation period in order to 
achieve natural visibility conditions by the end of 2064. The URP is 
used in later steps of the reasonable progress analysis for 
informational purposes and to provide a non-enforceable benchmark 
against which to assess a Class I area's rate of visibility 
improvement.\19\ Additionally, in the 2017 RHR Revisions, the EPA 
provided States the option of proposing to adjust the endpoint of the 
URP to account for impacts of anthropogenic sources outside the United 
States and/or impacts of certain types of wildland prescribed fires. 
These adjustments, which must be approved by the EPA, are intended to 
avoid any perception that States should compensate for impacts from 
international anthropogenic sources and to give States the flexibility 
to determine that limiting the use of wildland-prescribed fire is not 
necessary for reasonable progress. 82 FR 3078 at 3107 footnote 116, 
January 10, 2017.
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    \19\ Being on or below the URP is not a ``safe harbor''; i.e., 
achieving the URP does not mean that a Class I area is making 
``reasonable progress'' and does not relieve a state from using the 
four statutory factors to determine what level of control is needed 
to achieve such progress. See, e.g., 82 FR 3078 at 3093, January 10, 
2017.
---------------------------------------------------------------------------

    The EPA's 2018 Visibility Tracking Guidance can be used to help 
satisfy the 40 CFR 51.308(f)(1) requirements, including in developing 
information on baseline, current, and natural visibility conditions, 
and in making optional adjustments to the URP. In addition, the 2020 
Data Completeness Memo provides recommendations on the data 
completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides 
updated natural conditions estimates for each Class I area.

C. Long-Term Strategy for Regional Haze

    The core component of a regional haze SIP submission is a long-term 
strategy that addresses regional haze in each Class I area within a 
State's borders and each Class I area that may be affected by emissions 
from the State. The long-term strategy ``must include the enforceable 
emissions limitations, compliance schedules, and other measures that 
are necessary to make reasonable progress, as determined pursuant to 
(f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). The amount of progress 
that is ``reasonable progress'' is based on applying the four statutory 
factors in CAA section 169A(g)(1) in an evaluation of potential control 
options for sources of visibility impairing pollutants, which is 
referred to as a ``four-factor'' analysis. The outcome of that analysis 
is the emission reduction measures that a particular source or group of 
sources needs to implement in order to make reasonable progress towards 
the national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission 
reduction measures that are necessary to make reasonable progress may 
be either new, additional control measures for a source, or they may be 
the existing emission reduction measures that a source is already 
implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-
10. Such measures must be represented by ``enforceable emissions 
limitations, compliance schedules, and other measures'' (i.e., any 
additional compliance tools) in a State's long-term strategy in its 
SIP. 40 CFR 51.308(f)(2).
    Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the 
sources to be evaluated for emission reduction measures; to this end, 
the RHR requires States to consider ``major and minor stationary 
sources or groups of sources, mobile sources, and area sources'' of 
visibility impairing pollutants for potential four-factor control 
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is 
which visibility impairing pollutants will be analyzed. As the EPA 
previously explained, consistent with the first implementation period, 
the EPA generally expects that each State will analyze at least 
SO2 and NOX in selecting sources and determining 
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at 
4. A State that chooses not to consider at least these two pollutants 
should demonstrate why such

[[Page 6937]]

consideration would be unreasonable. 2021 Clarifications Memo at 4.
    While States have the option to analyze all sources, the 2019 
Guidance explains that ``an analysis of control measures is not 
required for every source in each implementation period,'' and that 
``[s]electing a set of sources for analysis of control measures in each 
implementation period is . . . consistent with the Regional Haze Rule, 
which sets up an iterative planning process and anticipates that a 
State may not need to analyze control measures for all its sources in a 
given SIP revision.'' 2019 Guidance at 9. However, given that source 
selection is the basis of all subsequent control determinations, a 
reasonable source selection process ``should be designed and conducted 
to ensure that source selection results in a set of pollutants and 
sources the evaluation of which has the potential to meaningfully 
reduce their contributions to visibility impairment.'' 2021 
Clarifications Memo at 3.
    The EPA explained in the 2021 Clarifications Memo that each State 
has an obligation to submit a long-term strategy that addresses the 
regional haze visibility impairment that results from emissions from 
within that State. Thus, source selection should focus on the in-state 
contribution to visibility impairment and be designed to capture a 
meaningful portion of the State's total contribution to visibility 
impairment in Class I areas. A State should not decline to select its 
largest in-state sources on the basis that there are even larger out-
of-state contributors. 2021 Clarifications Memo at 4.\20\
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    \20\ Similarly, in responding to comments on the 2017 RHR 
Revisions EPA explained that ``[a] state should not fail to address 
its many relatively low-impact sources merely because it only has 
such sources and another state has even more low-impact sources and/
or some high impact sources.'' Responses to Comments on Protection 
of Visibility: Amendments to Requirements for State Plans; Proposed 
Rule (81 FR 26942, May 4, 2016) at 87-88.
---------------------------------------------------------------------------

    Thus, while States have discretion to choose any source selection 
methodology that is reasonable, whatever choices they make should be 
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that 
a State's SIP submission include ``a description of the criteria it 
used to determine which sources or groups of sources it evaluated.'' 
The technical basis for source selection, which may include methods for 
quantifying potential visibility impacts such as emissions divided by 
distance metrics, trajectory analyses, residence time analyses, and/or 
photochemical modeling, must also be appropriately documented, as 
required by 40 CFR 51.308 (f)(2)(iii).
    Once a State has selected the set of sources, the next step is to 
determine the emissions reduction measures for those sources that are 
necessary to make reasonable progress for the second implementation 
period.\21\ This is accomplished by considering the four factors--``the 
costs of compliance, the time necessary for compliance, and the energy 
and non-air quality environmental impacts of compliance, and the 
remaining useful life of any existing source subject to such 
requirements.'' CAA 169A(g)(1). The EPA has explained that the four-
factor analysis is an assessment of potential emission reduction 
measures (i.e., control options) for sources; ``use of the terms 
`compliance' and `subject to such requirements' in section 169A(g)(1) 
strongly indicates that Congress intended the relevant determination to 
be the requirements with which sources would have to comply in order to 
satisfy the CAA's reasonable progress mandate.'' 82 FR 3078 at 3091, 
January 10, 2017. Thus, for each source it has selected for four-factor 
analysis,\22\ a State must consider a ``meaningful set'' of technically 
feasible control options for reducing emissions of visibility impairing 
pollutants. Id. at 3088. The 2019 Guidance provides that ``[a] state 
must reasonably pick and justify the measures that it will consider, 
recognizing that there is no statutory or regulatory requirement to 
consider all technically feasible measures or any particular measures. 
A range of technically feasible measures available to reduce emissions 
would be one way to justify a reasonable set.'' 2019 Guidance at 29.
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    \21\ The CAA provides that, ``[i]n determining reasonable 
progress there shall be taken into consideration'' the four 
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source 
categories, a state may also consider additional emission reduction 
measures for inclusion in its long-term strategy, e.g., from other 
newly adopted, on-the-books, or on-the-way rules and measures for 
sources not selected for four-factor analysis for the second 
planning period.
    \22\ ``Each source'' or ``particular source'' is used here as 
shorthand. While a source-specific analysis is one way of applying 
the four factors, neither the statute nor the RHR requires states to 
evaluate individual sources. Rather, states have ``the flexibility 
to conduct four-factor analyses for specific sources, groups of 
sources or even entire source categories, depending on state policy 
preferences and the specific circumstances of each state.'' 82 FR 
3078 at 3088, January 10, 2017. However, not all approaches to 
grouping sources for four-factor analysis are necessarily 
reasonable; the reasonableness of grouping sources in any particular 
instance will depend on the circumstances and the manner in which 
grouping is conducted. If it is feasible to establish and enforce 
different requirements for sources or subgroups of sources, and if 
relevant factors can be quantified for those sources or subgroups, 
then states should make a separate reasonable progress determination 
for each source or subgroup. 2021 Clarifications Memo at 7-8.
---------------------------------------------------------------------------

    The EPA's 2021 Clarifications Memo provides further guidance on 
what constitutes a reasonable set of control options for consideration: 
``A reasonable four-factor analysis will consider the full range of 
potentially reasonable options for reducing emissions.'' 2021 
Clarifications Memo at 7. In addition to add-on controls and other 
retrofits (i.e., new emission reduction measures for sources), The EPA 
explained that States should generally analyze efficiency improvements 
for sources' existing measures as control options in their four-factor 
analyses, as in many cases such improvements are reasonable given that 
they typically involve only additional operation and maintenance costs. 
Additionally, the 2021 Clarifications Memo provides that States that 
have assumed a higher emission rate than a source has achieved or could 
potentially achieve using its existing measures should also consider 
lower emission rates as potential control options. That is, a State 
should consider a source's recent actual and projected emission rates 
to determine if it could reasonably attain lower emission rates with 
its existing measures. If so, the State should analyze the lower 
emission rate as a control option for reducing emissions. 2021 
Clarifications Memo at 7. The EPA's recommendations to analyze 
potential efficiency improvements and achievable lower emission rates 
apply to both sources that have been selected for four-factor analysis 
and those that have forgone a four-factor analysis on the basis of 
existing ``effective controls.'' See 2021 Clarifications Memo at 5, 10.
    After identifying a reasonable set of potential control options for 
the sources it has selected, a State then collects information on the 
four factors with regard to each option identified. The EPA has also 
explained that, in addition to the four statutory factors, States have 
flexibility under the CAA and RHR to reasonably consider visibility 
benefits as an additional factor alongside the four statutory 
factors.\23\ The 2019 Guidance provides recommendations for the types 
of information that can be used to characterize the four factors (with 
or without visibility), as well as ways in which States might 
reasonably consider and balance that information to determine which of 
the potential control options is necessary to make reasonable

[[Page 6938]]

progress. See 2019 Guidance at 30-36. The 2021 Clarifications Memo 
contains further guidance on how States can reasonably consider modeled 
visibility impacts or benefits in the context of a four-factor 
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, the 
EPA explained that while visibility can reasonably be used when 
comparing and choosing between multiple reasonable control options, it 
should not be used to summarily reject controls that are reasonable 
given the four statutory factors. 2021 Clarifications Memo at 13. 
Ultimately, while States have discretion to reasonably weigh the 
factors and to determine what level of control is needed, 40 CFR 
51.308(f)(2)(i) provides that a State ``must include in its 
implementation plan a description of . . . how the four factors were 
taken into consideration in selecting the measure for inclusion in its 
long-term strategy.''
---------------------------------------------------------------------------

    \23\ See, e.g., Responses to Comments on Protection of 
Visibility: Amendments to Requirements for State Plans; Proposed 
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531, 
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
---------------------------------------------------------------------------

    As explained previously, 40 CFR 51.308(f)(2)(i) requires States to 
determine the emission reduction measures for sources that are 
necessary to make reasonable progress by considering the four factors. 
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make 
reasonable progress towards the national visibility goal must be 
included in a State's long-term strategy and in its SIP.\24\ If the 
outcome of a four-factor analysis is a new, additional emission 
reduction measure for a source, that new measure is necessary to make 
reasonable progress towards remedying existing anthropogenic visibility 
impairment and must be included in the SIP. If the outcome of a four-
factor analysis is that no new measures are reasonable for a source, 
continued implementation of the source's existing measures is generally 
necessary to prevent future emission increases and thus to make 
reasonable progress towards the second part of the national visibility 
goal: preventing future anthropogenic visibility impairment. See CAA 
169A(a)(1). That is, when the result of a four-factor analysis is that 
no new measures are necessary to make reasonable progress, the source's 
existing measures are generally necessary to make reasonable progress 
and must be included in the SIP. However, there may be circumstances in 
which a State can demonstrate that a source's existing measures are not 
necessary to make reasonable progress. Specifically, if a State can 
demonstrate that a source will continue to implement its existing 
measures and will not increase its emission rate, it may not be 
necessary to have those measures in the long-term strategy in order to 
prevent future emission increases and future visibility impairment. The 
EPA's 2021 Clarifications Memo provides further explanation and 
guidance on how States may demonstrate that a source's existing 
measures are not necessary to make reasonable progress. See 2021 
Clarifications Memo at 8-10. If the State can make such a 
demonstration, it need not include a source's existing measures in the 
long-term strategy or its SIP.
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    \24\ States may choose to, but are not required to, include 
measures in their long-term strategies beyond just the emission 
reduction measures that are necessary for reasonable progress. See 
2021 Clarifications Memo at 16. For example, states with smoke 
management programs may choose to submit their smoke management 
plans to EPA for inclusion in their SIPs but are not required to do 
so. See, e.g., 82 FR 3078 at 3108-09, January 10, 2017 (requirement 
to consider smoke management practices and smoke management programs 
under 40 CFR 51.308(f)(2)(iv) does not require states to adopt such 
practices or programs into their SIPs, although they may elect to do 
so).
---------------------------------------------------------------------------

    As with source selection, the characterization of information on 
each of the factors is also subject to the documentation requirement in 
40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including 
source selection, information gathering, characterization of the four 
statutory factors (and potentially visibility), balancing of the four 
factors, and selection of the emission reduction measures that 
represent reasonable progress, is a technically complex exercise, but 
also a flexible one that provides States with bounded discretion to 
design and implement approaches appropriate to their circumstances. 
Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important 
function in requiring a State to document the technical basis for its 
decision making so that the public and the EPA can comprehend and 
evaluate the information and analysis the State relied upon to 
determine what emission reduction measures must be in place to make 
reasonable progress. The technical documentation must include the 
modeling, monitoring, cost, engineering, and emissions information on 
which the State relied to determine the measures necessary to make 
reasonable progress. This documentation requirement can be met through 
the provision of and reliance on technical analyses developed through a 
regional planning process, so long as that process and its output has 
been approved by all State participants. In addition to the explicit 
regulatory requirement to document the technical basis of their 
reasonable progress determinations, States are also subject to the 
general principle that those determinations must be reasonably moored 
to the statute.\25\ That is, a State's decisions about the emission 
reduction measures that are necessary to make reasonable progress must 
be consistent with the statutory goal of remedying existing and 
preventing future visibility impairment.
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    \25\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531 
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir. 
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013); 
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf. 
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d 
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 
461, 485, 490 (2004).
---------------------------------------------------------------------------

    The four statutory factors (and potentially visibility) are used to 
determine what emission reduction measures for selected sources must be 
included in a State's long-term strategy for making reasonable 
progress. Additionally, the RHR at 40 CFR 51.308(f)(2)(iv) separately 
provides five ``additional factors'' \26\ that States must consider in 
developing their long-term strategies: (1) emission reductions due to 
ongoing air pollution control programs, including measures to address 
reasonably attributable visibility impairment; (2) measures to reduce 
the impacts of construction activities; (3) source retirement and 
replacement schedules; (4) basic smoke management practices for 
prescribed fire used for agricultural and wildland vegetation 
management purposes and smoke management programs; and (5) the 
anticipated net effect on visibility due to projected changes in point, 
area, and mobile source emissions over the period addressed by the 
long-term strategy. The 2019 Guidance provides that a State may satisfy 
this requirement by considering these additional factors in the process 
of selecting sources for four-factor analysis, when performing that 
analysis, or both, and that not every one of the additional factors 
needs to be considered at the same stage of the process. See 2019 
Guidance at 21. The EPA provided further guidance on the five 
additional factors in the 2021 Clarifications Memo, explaining that a 
State should generally not reject cost-effective and otherwise 
reasonable controls merely because there have been emission reductions 
since the first planning period owing to other ongoing air pollution 
control programs or merely because visibility is otherwise projected to 
improve at Class I areas. Additionally, States generally should not 
rely on these additional factors to

[[Page 6939]]

summarily assert that the State has already made sufficient progress 
and, therefore, no sources need to be selected or no new controls are 
needed regardless of the outcome of four-factor analyses. 2021 
Clarifications Memo at 13.
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    \26\ The five ``additional factors'' for consideration in 
section 51.308(f)(2)(iv) are distinct from the four factors listed 
in CAA section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states 
must consider and apply to sources in determining reasonable 
progress.
---------------------------------------------------------------------------

    Because the air pollution that causes regional haze crosses State 
boundaries, 40 CFR 51.308(f)(2)(ii) requires a State to consult with 
other States that also have emissions that are reasonably anticipated 
to contribute to visibility impairment in a given Class I area. 
Consultation allows for each State that impacts visibility in an area 
to share whatever technical information, analyses, and control 
determinations may be necessary to develop coordinated emission 
management strategies. This coordination may be managed through inter- 
and intra-RPO consultation and the development of regional emissions 
strategies; additional consultations between States outside of RPO 
processes may also occur. If a State, pursuant to consultation, agrees 
that certain measures (e.g., a certain emission limitation) are 
necessary to make reasonable progress at a Class I area, it must 
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A). 
Additionally, the RHR requires that States that contribute to 
visibility impairment at the same Class I area consider the emission 
reduction measures the other contributing States have identified as 
being necessary to make reasonable progress for their own sources. 40 
CFR 51.308(f)(2)(ii)(B). If a State has been asked to consider or adopt 
certain emission reduction measures, but ultimately determines those 
measures are not necessary to make reasonable progress, that State must 
document in its SIP the actions taken to resolve the disagreement. 40 
CFR 51.308(f)(2)(ii)(C). The EPA will consider the technical 
information and explanations presented by the submitting State and the 
State with which it disagrees when considering whether to approve the 
State's SIP. See id.; 2019 Guidance at 53. Under all circumstances, a 
State must document in its SIP submission all substantive consultations 
with other contributing States. 40 CFR 51.308(f)(2)(ii)(C).

D. Reasonable Progress Goals

    Reasonable progress goals ``measure the progress that is projected 
to be achieved by the control measures States have determined are 
necessary to make reasonable progress based on a four-factor 
analysis.'' 82 FR 3078 at 3091, January 10, 2017. Their primary purpose 
is to assist the public and the EPA in assessing the reasonableness of 
States' long-term strategies for making reasonable progress towards the 
national visibility goal. See 40 CFR 51.308(f)(3)(iii) and (iv). States 
in which Class I areas are located must establish two RPGs, both in 
deciviews--one representing visibility conditions on the clearest days 
and one representing visibility on the most anthropogenically impaired 
days--for each area within their borders. 40 CFR 51.308(f)(3)(i). The 
two RPGs are intended to reflect the projected impacts, on the two sets 
of days, of the emission reduction measures the State with the Class I 
area, as well as all other contributing States, have included in their 
long-term strategies for the second implementation period.\27\ The RPGs 
also account for the projected impacts of implementing other CAA 
requirements, including non-SIP based requirements. Because RPGs are 
the modeled result of the measures in States' long-term strategies (as 
well as other measures required under the CAA), they cannot be 
determined before States have conducted their four-factor analyses and 
determined the control measures that are necessary to make reasonable 
progress. See 2021 Clarifications Memo at 6.
---------------------------------------------------------------------------

    \27\ RPGs are intended to reflect the projected impacts of the 
measures all contributing states include in their long-term 
strategies. However, due to the timing of analyses and of control 
determinations by other states, other on-going emissions changes, a 
particular state's RPGs may not reflect all control measures and 
emissions reductions that are expected to occur by the end of the 
implementation period. The 2019 Guidance provides recommendations 
for addressing the timing of RPG calculations when states are 
developing their long-term strategies on disparate schedules, as 
well as for adjusting RPGs using a post-modeling approach. 2019 
Guidance at 47-48.
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    For the second implementation period, the RPGs are set for 2028. 
Reasonable progress goals are not enforceable targets, 40 CFR 
51.308(f)(3)(iii); rather, they ``provide a way for the States to check 
the projected outcome of the [long-term strategy] against the goals for 
visibility improvement.'' 2019 Guidance at 46. While States are not 
legally obligated to achieve the visibility conditions described in 
their RPGs, 40 CFR 51.308(f)(3)(i) requires that ``[t]he long-term 
strategy and the reasonable progress goals must provide for an 
improvement in visibility for the most impaired days since the baseline 
period and ensure no degradation in visibility for the clearest days 
since the baseline period.'' Thus, States are required to have emission 
reduction measures in their long-term strategies that are projected to 
achieve visibility conditions on the most impaired days that are better 
than the baseline period and shows no degradation on the clearest days 
compared to the clearest days from the baseline period. The baseline 
period for the purpose of this comparison is the baseline visibility 
condition--the annual average visibility condition for the period 2000-
2004. See 40 CFR 51.308(f)(1)(i), 82 FR 3078 at 3097-98, January 10, 
2017.
    So that RPGs may also serve as a metric for assessing the amount of 
progress a State is making towards the national visibility goal, the 
RHR requires States with Class I areas to compare the 2028 RPG for the 
most impaired days to the corresponding point on the URP line 
(representing visibility conditions in 2028 if visibility were to 
improve at a linear rate from conditions in the baseline period of 
2000-2004 to natural visibility conditions in 2064). If the most 
impaired days RPG in 2028 is above the URP (i.e., if visibility 
conditions are improving more slowly than the rate described by the 
URP), each State that contributes to visibility impairment in the Class 
I area must demonstrate, based on the four-factor analysis required 
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction 
measures would be reasonable to include in its long-term strategy. 40 
CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires 
that each State contributing to visibility impairment in a Class I area 
that is projected to improve more slowly than the URP provide ``a 
robust demonstration, including documenting the criteria used to 
determine which sources or groups [of] sources were evaluated and how 
the four factors required by paragraph (f)(2)(i) were taken into 
consideration in selecting the measures for inclusion in its long-term 
strategy.'' The 2019 Guidance provides suggestions about how such a 
``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
    The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also 
explain that projecting an RPG that is on or below the URP based on 
only on-the-books and/or on-the-way control measures (i.e., control 
measures already required or anticipated before the four-factor 
analysis is conducted) is not a ``safe harbor'' from the CAA's and 
RHR's requirement that all States must conduct a four-factor analysis 
to determine what emission reduction measures constitute reasonable 
progress. The URP is a planning metric used to gauge the amount of 
progress made thus far and the amount left before reaching natural 
visibility conditions. However, the URP is not based on consideration 
of the four statutory factors and therefore cannot

[[Page 6940]]

answer the question of whether the amount of progress being made in any 
particular implementation period is ``reasonable progress.'' See 82 FR 
3078 at 3093, 3099-3100, January 10, 2017; 2019 Guidance at 22; 2021 
Clarifications Memo at 15-16.

E. Monitoring Strategy and Other State Implementation Plan Requirements

    Section 51.308(f)(6) requires States to have certain strategies and 
elements in place for assessing and reporting on visibility. Individual 
requirements under this section apply either to States with Class I 
areas within their borders, States with no Class I areas but that are 
reasonably anticipated to cause or contribute to visibility impairment 
in any Class I area, or both. A State with Class I areas within its 
borders must submit with its SIP revision a monitoring strategy for 
measuring, characterizing, and reporting regional haze visibility 
impairment that is representative of all Class I areas within the 
State. SIP revisions for such States must also provide for the 
establishment of any additional monitoring sites or equipment needed to 
assess visibility conditions in Class I areas, as well as reporting of 
all visibility monitoring data to the EPA at least annually. Compliance 
with the monitoring strategy requirement may be met through a State's 
participation in the Interagency Monitoring of Protected Visual 
Environments (IMPROVE) monitoring network, which is used to measure 
visibility impairment caused by air pollution at the 156 Class I areas 
covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i) and 
(iv). The IMPROVE monitoring data is used to determine the 20% most 
anthropogenically impaired and 20% clearest sets of days every year at 
each Class I area and tracks visibility impairment over time.
    All States' SIPs must provide for procedures by which monitoring 
data and other information are used to determine the contribution of 
emissions from within the State to regional haze visibility impairment 
in affected Class I areas. 40 CFR 51.308(f)(6)(ii) and (iii). Section 
51.308(f)(6)(v) further requires that all States' SIPs provide for a 
statewide inventory of emissions of pollutants that are reasonably 
anticipated to cause or contribute to visibility impairment in any 
Class I area; the inventory must include emissions for the most recent 
year for which data are available and estimates of future projected 
emissions. States must also include commitments to update their 
inventories periodically. The inventories themselves do not need to be 
included as elements in the SIP and are not subject to EPA review as 
part of the Agency's evaluation of a SIP revision.\28\ All States' SIPs 
must also provide for any other elements, including reporting, 
recordkeeping, and other measures, that are necessary for States to 
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019 
Guidance, a State may note in its regional haze SIP that its compliance 
with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51, subpart 
A satisfies the requirement to provide for an emissions inventory for 
the most recent year for which data are available. To satisfy the 
requirement to provide estimates of future projected emissions, a State 
may explain in its SIP how projected emissions were developed for use 
in establishing RPGs for its own and nearby Class I areas.\29\
---------------------------------------------------------------------------

    \28\ See ``Step 8: Additional requirements for regional haze 
SIPs'' in 2019 Regional Haze Guidance at 55.
    \29\ Id.
---------------------------------------------------------------------------

    Separate from the requirements related to monitoring for regional 
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a 
requirement at 40 CFR 51.308(f)(4) related to any additional monitoring 
that may be needed to address visibility impairment in Class I areas 
from a single source or a small group of sources. This is called 
``reasonably attributable visibility impairment.'' \30\ Under this 
provision, if the EPA or the FLM of an affected Class I area has 
advised a State that additional monitoring is needed to assess 
reasonably attributable visibility impairment, the State must include 
in its SIP revision for the second implementation period an appropriate 
strategy for evaluating such impairment.
---------------------------------------------------------------------------

    \30\ EPA's visibility protection regulations define ``reasonably 
attributable visibility impairment'' as ``visibility impairment that 
is caused by the emission of air pollutants from one, or a small 
number of sources.'' 40 CFR 51.301.
---------------------------------------------------------------------------

F. Requirements for Periodic Reports Describing Progress Towards the 
Reasonable Progress Goals

    Section 51.308(f)(5) requires a State's regional haze SIP revision 
to address the requirements of 40 CFR 51.308(g)(1) through (5) so that 
the plan revision due in 2021 will serve also as a progress report 
addressing the period since submission of the progress report for the 
first implementation period. The regional haze progress report 
requirement is designed to inform the public and the EPA about a 
State's implementation of its existing long-term strategy and whether 
such implementation is in fact resulting in the expected visibility 
improvement. See 81 FR 26942, 26950 (May 4, 2016), (82 FR 3078 at 3119, 
January 10, 2017). To this end, every State's SIP revision for the 
second implementation period is required to describe the status of 
implementation of all measures included in the State's long-term 
strategy, including BART and reasonable progress emission reduction 
measures from the first implementation period, and the resulting 
emissions reductions. 40 CFR 51.308(g)(1) and (2).
    A core component of the progress report requirements is an 
assessment of changes in visibility conditions on the clearest and most 
impaired days. For second implementation period progress reports, 40 
CFR 51.308(g)(3) requires States with Class I areas within their 
borders to first determine current visibility conditions for each area 
on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i)(B), and 
then to calculate the difference between those current conditions and 
baseline (2000-2004) visibility conditions in order to assess progress 
made to date. See 40 CFR 51.308(g)(3)(ii)(B). States must also assess 
the changes in visibility impairment for the most impaired and clearest 
days since they submitted their first implementation period progress 
reports. See 40 CFR 51.308(g)(3)(iii)(B) and (f)(5). Since different 
States submitted their first implementation period progress reports at 
different times, the starting point for this assessment will vary state 
by state.
    Similarly, States must provide analyses tracking the change in 
emissions of pollutants contributing to visibility impairment from all 
sources and activities within the State over the period since they 
submitted their first implementation period progress reports. See 40 
CFR 51.308(f)(5) and (g)(4). Changes in emissions should be identified 
by the type of source or activity. Section 51.308(g)(5) also addresses 
changes in emissions since the period addressed by the previous 
progress report and requires States' SIP revisions to include an 
assessment of any significant changes in anthropogenic emissions within 
or outside the State. This assessment must include an explanation of 
whether these changes in emissions were anticipated and whether they 
have limited or impeded progress in reducing emissions and improving 
visibility relative to what the State projected based on its long-term 
strategy for the first implementation period.

G. Requirements for State and Federal Land Manager Coordination

    Clean Air Act section 169A(d) requires that before a State holds a

[[Page 6941]]

public hearing on a proposed regional haze SIP revision, it must 
consult with the appropriate FLM or FLMs; pursuant to that 
consultation, the State must include a summary of the FLMs' conclusions 
and recommendations in the notice to the public. Consistent with this 
statutory requirement, the RHR also requires that States ``provide the 
[FLM] with an opportunity for consultation, in person and at a point 
early enough in the State's policy analyses of its long-term strategy 
emission reduction obligation so that information and recommendations 
provided by the [FLM] can meaningfully inform the State's decisions on 
the long-term strategy.'' 40 CFR 51.308(i)(2). Consultation that occurs 
120 days prior to any public hearing or public comment opportunity will 
be deemed ``early enough,'' but the RHR provides that in any event the 
opportunity for consultation must be provided at least 60 days before a 
public hearing or comment opportunity. This consultation must include 
the opportunity for the FLMs to discuss their assessment of visibility 
impairment in any Class I area and their recommendations on the 
development and implementation of strategies to address such 
impairment. 40 CFR 51.308(i)(2). In order for the EPA to evaluate 
whether FLM consultation meeting the requirements of the RHR has 
occurred, the SIP submission should include documentation of the timing 
and content of such consultation. The SIP revision submitted to the EPA 
must also describe how the State addressed any comments provided by the 
FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide 
procedures for continuing consultation between the State and FLMs 
regarding the State's visibility protection program, including 
development and review of SIP revisions, five-year progress reports, 
and the implementation of other programs having the potential to 
contribute to impairment of visibility in Class I areas. 40 CFR 
51.308(i)(4).

IV. EPA's Evaluation of West Virginia's Regional Haze Submission for 
the Second Implementation Period

A. Background on West Virginia's First Implementation Period SIP 
Submission

    West Virginia submitted its Regional Haze SIP for the first 
implementation period to the EPA on June 18, 2008. The EPA issued a 
limited approval and limited disapproval of West Virginia's first 
implementation period Regional Haze SIP submission on March 23, 2012 
(77 FR 16937) because, while West Virginia's SIP revision, as a whole, 
strengthened the West Virginia SIP, deficiencies in the State's June 
2008 regional haze SIP submittal arising from the remand by the U.S. 
Court of Appeals for the District of Columbia (D.C. Circuit) to the EPA 
of the Clean Air Interstate Rule (CAIR) necessitated a limited 
disapproval of these aspects of the State's SIP submittal. The EPA 
subsequently converted this limited approval/limited disapproval of 
West Virginia's regional haze SIP to a full approval on September 24, 
2018, (83 FR 48249) after West Virginia submitted a revision to its 
Regional Haze SIP to change its reliance from CAIR to the Cross-State 
Air Pollution Rule (CSAPR) for the purpose of meeting BART for regional 
haze and addressing reasonable progress requirements. The requirements 
for Regional Haze SIPs for the first implementation period are 
contained in 40 CFR 51.308(d) and (e). Pursuant to 40 CFR 51.308(g), 
West Virginia was also responsible for submitting a five-year progress 
report as a SIP revision for the first implementation period, which it 
did on April 30, 2013. The EPA approved the progress report into West 
Virginia's SIP on June 5, 2015 (80 FR 32019).

B. West Virginia's Second Implementation Period SIP Submission and the 
EPA's Evaluation

    In accordance with CAA sections 169A and the RHR at 40 CFR 
51.308(f), (g), and (i), on August 12, 2022, WV DEP submitted a 
revision to West Virginia's SIP to address its Regional Haze 
obligations for the second implementation period, which runs through 
2028. West Virginia made its 2022 Regional Haze SIP submission 
available for public comment on November 5, 2021. West Virginia 
received and responded to public comments and included both the 
comments and responses to those comments in its submission.
    The following sections describe West Virginia's SIP submission. 
This document also contains the EPA's evaluation of West Virginia's 
submission against the applicable requirements of the CAA and RHR for 
the second implementation period of the Regional Haze program.

C. Identification of Class I Areas

    Section 169A(b)(2) of the CAA requires each State in which any 
Class I Area is located or ``the emissions from which may reasonably be 
anticipated to cause or contribute to any impairment of visibility'' in 
a Class I Area to have a plan for making reasonable progress toward the 
national visibility goal. The RHR implements this statutory requirement 
at 40 CFR 51.308(f), which provides that each State's plan ``must 
address Regional Haze in each mandatory Class I Federal Area located 
within the State and in each mandatory Class I Federal Area located 
outside the State that may be affected by emissions from within the 
State,'' and (f)(2), which requires each State's plan to include a 
long-term strategy that addresses Regional Haze in such Class I Areas.
    The EPA explained in the 1999 RHR preamble that the CAA section 
169A(b)(2) requirement that States submit SIPs to address visibility 
impairment establishes ``an `extremely low triggering threshold' in 
determining which States should submit SIPs for regional haze.'' 64 FR 
35721, July 1, 1999. In concluding that each of the contiguous 48 
States and the District of Columbia meet this threshold,\31\ the EPA 
relied on ``a large body of evidence demonstrat[ing] that long-range 
transport of fine PM contributes to regional haze,'' id., including 
modeling studies that ``preliminarily demonstrated that each State not 
having a Class I Area had emissions contributing to impairment in at 
least one downwind Class I Area.'' Id. at 35722. In addition to the 
technical evidence supporting a conclusion that each State contributes 
to existing visibility impairment, the EPA also explained that the 
second half of the national visibility goal--preventing future 
visibility impairment--requires having a framework in place to address 
future growth in visibility-impairing emissions and makes it 
inappropriate to ``establish criteria for excluding States or 
geographic areas from consideration as potential contributors to 
regional haze visibility impairment.'' Id. at 35721. Thus, the EPA 
concluded that the agency's ``statutory authority and the scientific 
evidence are sufficient to require all States to develop regional haze 
SIPs to ensure the prevention of any future impairment of visibility, 
and to conduct further analyses to determine whether additional control 
measures are needed to ensure reasonable progress in remedying existing 
impairment in downwind Class I Areas.'' Id. at 35722. The EPA's 2017 
revisions to the RHR did not disturb this conclusion. See 82 FR 3094.
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    \31\ The EPA determined that ``there is more than sufficient 
evidence to support our conclusion that emissions from each of the 
48 contiguous states and the District of Columba may reasonably be 
anticipated to cause or contribute to visibility impairment in a 
Class I Area.'' 64 FR 35721, July 1, 1999 . Hawaii, Alaska, and the 
U.S. Virgin Islands must also submit Regional Haze SIPs because they 
contain Class I Areas.
---------------------------------------------------------------------------

    To address 40 CFR 51.308(f), WV DEP identified Class I areas within 
West

[[Page 6942]]

Virginia and out-of-state Class I areas downwind of West Virginia that 
were affected by West Virginia statewide emissions of visibility 
impairing pollutants. West Virginia has two mandatory Class I areas 
within its borders: Dolly Sods Wilderness Area (Dolly Sods) and Otter 
Creek Wilderness Area (Otter Creek). Out-of-state Class I Areas 
affected by West Virginia included Acadia National Park (Maine), James 
River Face Wilderness Area (Virginia), Lye Brook Wilderness Area 
(Vermont), Moosehorn Wilderness Area (Maine), Roosevelt Campobello 
International Park (Maine/New Brunswick), Shenandoah National Park 
(Virginia), and Swanquarter Wilderness Area (North Carolina).
    West Virginia, like other VISTAS States, implemented a two-step 
process to select sources contributing to visibility impairment in 
Class I areas within and outside the State. West Virginia presented the 
results of Particulate Matter Source Apportionment Technology (PSAT) 
\32\ modeling that VISTAS conducted to estimate the projected impact of 
statewide SO2 and NOX emissions across all 
emissions sectors in 2028 on total light extinction for the 20 percent 
most impaired days in all Class I areas in the VISTAS modeling 
domain.\33\ PSAT results were used to calculate the percent 
contribution of each tagged facility to the total sulfate and nitrate 
point source (EGU + non-EGU) contribution at each Class I area; more 
details of the PSAT analysis can be found in Appendix E-7b of WV DEP's 
SIP submittal. West Virginia also relied on facility-level 
SO2 and NOX Area of Influence (AOI) analyses \34\ 
for each Class I area to assess relative visibility impacts from each 
facility.\35\
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    \32\ PSAT is Particulate Matter Source Apportionment Technology, 
which is an option in the photochemical visibility impact modeling 
performed by VISTAS that is a methodology to track the fate of both 
primary and secondary PM. PSAT allows emissions to be tracked 
(``tagged'') for individual facilities as well as various 
combinations of sectors and geographic areas (e.g., by state). The 
PSAT results provide the modeled contribution of each of the tagged 
sources or groups of sources to the total visibility impacts.
    \33\ West Virginia did not include primary PM (directly emitted) 
data in this analysis because the PSAT analyses performed by VISTAS 
tagged statewide emissions of SO2 and NOX and 
did not tag primary total PM emissions in the analysis after 
concluding that emissions of the PM precursors SO2 and 
NOX, particularly from point sources, are projected to 
have the largest impact on visibility impairment in 2028 and that 
SO2 and NOX are the most significant 
visibility impairing pollutants from controllable anthropogenic 
sources.
    \34\ States often use an AOI analysis to help identify the areas 
and sources most likely contributing to poor visibility in Class I 
areas. The AOI analysis involves running a backward trajectory model 
to determine the origin of the air parcels affecting visibility, 
which is then combined with emissions data to determine the sources 
or source sectors most likely contributing to pollutant emissions. 
For more information on AOI analyses, see Appendix D of WV DEP's 
Regional Haze SIP Submittal for the 2nd Planning Period.
    \35\ See Section 7.5, ``Area of Influence Analyses for West 
Virginia Class I Areas'' of WV DEP's Regional Haze SIP Submittal for 
the 2nd Planning Period.
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    WV DEP concluded that sources and emissions within the State 
contribute to visibility impairment at seven out-of-state Class I Areas 
and took part in the emission control strategy consultation process as 
a member of VISTAS. WV DEP also included analyses of visibility 
impairing pollutant emissions and visibility impacts from other RPOs 
and States, and their impact on Class I Areas within VISTAS.\36\ From 
these analyses, WV DEP concluded that ``sulfate will generally be a 
much larger contributor to visibility impairment in 2028 at VISTAS 
mandatory Federal Class I areas than nitrates'' and, that ``emissions 
from other planning organizations . . . generally have higher 
contributions to 2028 visibility impairment at mandatory Federal Class 
I areas in VISTAS than the emissions from the home State.'' \37\ As 
stated previously, the threshold for visibility impact on Class I Areas 
is low. Therefore, a supposedly small visibility impact on any of the 
Class I Areas identified by WV DEP as being impacted by its emissions 
is sufficient to trigger the regional haze requirements to evaluate 
sources for control measures considering the four factors.
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    \36\ See Section 7.2.3, ``Projected VISTAS 2028 Emissions 
Inventory'', Section 7.2.5, ``2028 Visibility Projection Results'', 
and Section 7.4, ``Relative Contributions to Visibility Impairment: 
Pollutants, Source Categories, and Geographic Areas'' of WV DEP's 
Regional Haze SIP Submittal for the 2nd Planning Period.
    \37\ See Section 7.4, ``Relative Contributions to Visibility 
Impairment: Pollutants, Source Categories, and Geographic Areas'' of 
WV DEP's Regional Haze SIP Submittal for the 2nd Planning Period.
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D. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress

    Section 51.308(f)(1) requires states to determine the following for 
``each mandatory Class I Federal Area located within the State'': 
baseline visibility conditions for the most impaired and clearest days, 
natural visibility conditions for the most impaired and clearest days, 
progress to date for the most impaired and clearest days, the 
differences between current visibility conditions and natural 
visibility conditions, and the URP. This section also provides the 
option for States to propose adjustments to the URP line for a Class I 
Area to account for visibility impacts from anthropogenic sources 
outside the United States and/or the impacts from wildland prescribed 
fires that were conducted for certain, specified objectives. 40 CFR 
51.308(f)(1)(vi)(B). WV DEP included this information in sections 2, 3, 
and 7 of its Regional Haze SIP submittal for the second planning 
period.
    In its submittal, WV DEP determines and presents the baseline, 
natural, and current visibility conditions as well as the differences 
between these for the 20 percent most anthropogenically impaired days 
and the 20 percent clearest days for the State's two Class I Areas, as 
required by the RHR. Specifically, WV DEP included the baseline 
visibility conditions (2000-2004) in table 2-3, current visibility 
conditions (2014-2018) in table 2-5, and natural visibility conditions 
in table 2-2 for the 20 percent clearest and 20 percent most impaired 
days in each VISTAS Class I area in deciviews, including those in West 
Virginia. WV DEP also included the actual progress made in deciviews 
toward natural visibility conditions to date since the baseline period 
(current minus baseline), and the additional progress needed to reach 
natural visibility conditions from current conditions (natural minus 
current) in table 2-6 (for the 20 percent most impaired days) and table 
2-7 (for the 20 percent clearest days) for VISTAS Class I areas, 
including those in West Virginia.
    Additionally, Figure 3-1 of WV DEP's submittal provides the URP 
glide path for the 20 percent most impaired days for Dolly Sods. The 
URP shown in Figure 3-1 for Dolly Sods is considered representative of 
Otter Creek.\38\ The URPs were developed by the State using EPA 
guidance \39\ and used data collected from the IMPROVE monitoring 
sites.
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    \38\ Otter Creek has no IMPROVE monitor. Visibility at Otter 
Creek is assumed to be the same as the nearest Class I area monitor 
located at Dolly Sods.
    \39\ www.epa.gov/sites/default/files/2018-12/documents/technical_guidance_tracking_visibility_progress.pdf and https://www.epa.gov/sites/default/files/2020-06/documents/memo_data_for_regional_haze_technical_addendum.pdf.
---------------------------------------------------------------------------

    However, as set forth later in this NPRM, because the EPA is 
proposing to disapprove West Virginia's Regional Haze plan for the 
second planning period due to deficiencies in the overall submittal, 
the EPA takes no position on whether the analysis described in section 
D meets the requirements of the Clean Air Act.

[[Page 6943]]

E. Long-Term Strategy for Regional Haze

    Each State having a Class I Area within its borders or emissions 
that may affect visibility in a Class I Area must develop a long-term 
strategy for making reasonable progress towards the national visibility 
goal. CAA section 169A(b)(2)(B). As explained in the Background section 
of this document, reasonable progress is achieved when all States 
contributing to visibility impairment in a Class I Area are 
implementing the measures determined--through application of the four 
statutory factors to sources of visibility impairing pollutants--to be 
necessary to make reasonable progress. 40 CFR 51.308(f)(2)(i). Each 
State's long-term strategy must include the enforceable emission 
limitations, compliance schedules, and other measures that are 
necessary to make reasonable progress. 40 CFR 51.308(f)(2). All new 
(i.e., additional) measures that are the outcome of four-factor 
analyses are necessary to make reasonable progress and must be in the 
long-term strategy. If the outcome of a four-factor analysis and other 
measures necessary to make reasonable progress is that no new measures 
are reasonable for a source, that source's existing measures are 
necessary to make reasonable progress, unless the State can demonstrate 
that the source will continue to implement those measures and will not 
increase its emission rate. Existing measures that are necessary to 
make reasonable progress must also be in the long-term strategy. In 
developing its long-term strategy, a State must also consider the five 
additional factors in 40 CFR 51.308(f)(2)(iv). As part of its 
reasonable progress determinations, the State must describe the 
criteria used to determine which sources or group of sources were 
evaluated (i.e., subjected to four-factor analysis) for the second 
implementation period and how the four factors were taken into 
consideration in selecting the emission reduction measures for 
inclusion in the long-term strategy. 40 CFR 51.308(f)(2)(iii).
1. Source Selection
    To determine the necessary emission reductions measures, a State 
must first select the sources to evaluate. As stated in the Background 
section of this document, source selection should focus on the in-state 
contribution to visibility impairment and be designed to capture a 
meaningful portion of the State's total contribution to visibility 
impairment in Class I areas. WV DEP included information on the 
emissions impacts from numerous sources within the State on various 
Class I Areas. Section 7.6.1, Table 7-17 of the WV DEP submittal lists 
the facilities selected for PSAT tagging in Virginia and West Virginia 
based on an AOI visibility contribution of 0.2% or more which include 
thirteen facilities located in West Virginia.\40\ West Virginia then 
decided not to select eight of those facilities for analysis of 
reasonable progress measures or controls.\41\ The State considered a 
percent contribution of greater than or equal to 1.00% (individual 
facility contribution divided by the total sulfate and nitrate 
contributions from EGU + non-EGU point sources) to determine whether to 
select a facility for a reasonable progress analysis. West Virginia 
excluded seven of the eight unselected facilities in part based on a 
PSAT modeling result of <1.00% as well as various factors through a 
qualitative weight-of-the evidence approach.\42\ The remaining of the 
unselected facilities, Grant Town Plant,\43\ had a PSAT modeling result 
of >=1.00% which WV DEP claimed could be scaled down to <1.00% 
contribution to Dolly Sods based on recent emissions data.\44\ WV DEP 
also included discussion as to why no reasonable progress analysis is 
warranted for Mountaineer Plant, a ninth facility that was not tagged 
for PSAT modeling.\45\
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    \40\ Allegheny Energy Supply Co, LLC--Harrison; American 
Bituminous Power--Grant Town Plant; Appalachian Power Company--John 
E. Amos Plant; Dominion Resources, Inc.--Mount Storm Power Station; 
Equitrans--Copley Run CS 70; Files Creek; Glady; Kingsford 
Manufacturing Company; Longview Power; Mitchell Plant; Monongahela 
Power Co.--Fort Martin Power; Monongahela Power Co.--Pleasants Power 
Station; Morgantown Energy Associates.
    \41\ See section 7.6.4, ``Selection of Sources for Reasonable 
Progress Evaluation'' of WV DEP's Regional Haze SIP submittal for 
the 2nd Planning Period (``section 7.6.4'' or ``section 7.6.4 of the 
SIP submittal'').
    \42\ Id.
    \43\ West Virginia refers to this facility as ``Grant Town 
Plant'' as well as ``Grant Town Power Plant'' in the SIP submittal.
    \44\ Id. at 182 of 257.
    \45\ Id. at 187 of 257. West Virginia's SIP submittal provided 
scant explanation for Mountaineer's inclusion in this group of 
facilities. West Virginia might have included Mountaineer because 
the EPA's January 5, 2022 comments submitted during the public 
comment period asked for ``further explanation of why the 4th 
largest SO2 source in the state was not selected for a 4-
factor analysis . . . .'' Appendix H-4 ``West Virginia Department of 
Environmental Protection Division of Air Quality Responses to EPA 
Region 3 Comments on the West Virginia Draft Regional Haze State 
Implementation Plan August 2022,'' section. 6.e.
---------------------------------------------------------------------------

    After excluding eight of the thirteen facilities selected for PSAT 
tagging--along with Mountaineer Plant, which had not been selected for 
PSAT--West Virginia then selected the remaining five facilities: 
Harrison Power Station; Fort Martin Power Station; Pleasants Power 
Station; Mitchell Plant; and the John E. Amos Plant, to perform a four-
factor analysis.\46\ WV DEP also included in its reasonable progress 
discussion at section 7.8 of the SIP submittal a sixth facility--Grant 
Town Plant--which was initially included among the eight facilities for 
which WV DEP explained that no reasonable progress analysis was 
warranted.\47\ Although the State then selected Grant Town Plant for a 
reasonable progress evaluation, it did not contact the facility to 
request such analysis giving as the reason, ``the facility is already 
subject to a federally enforceable Title V permit (R30-04900026-2020) 
that limits SO2 emissions to less than the quantity 
projected to exceed the 1.00% visibility threshold of the VISTAS PSAT 
modeling.'' \48\ Below in this document, when discussing reasonable 
progress and the facilities included in section 7.8 of the SIP 
submittal, the EPA refers to the group selected for reasonable progress 
analysis as ``five facilities plus Grant Town Plant'' or ``six 
facilities'' for ease of reference, even though it is somewhat unclear 
whether WV DEP's discussion of Grant Town Plant in section 7.8 of the 
SIP submittal is meant to be a reasonable progress analysis.\49\
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    \46\ See section 7.8, ``Reasonable Progress for Individual 
Sources to be Included in the Long-Term Strategy'', of WV DEP's 
Regional Haze SIP submittal for the 2nd Planning Period (``section 
7.8'' or ``section 7.8 of the SIP submittal'').
    \47\ Id. and section 7.6.4 of the SIP submittal.
    \48\ Section 7.8 of the SIP submittal at 197 of 257.
    \49\ West Virginia does not clearly explain why it included 
Grant Town Plant in the section 7.8 reasonable progress discussion 
after it already claimed that Grant Town Plant should be excluded 
from four-factor analysis and reasonable progress analysis in the 
section 7.6.4 source selection discussion whittling down the larger 
group of thirteen facilities tagged for PSAT modeling.
---------------------------------------------------------------------------

    Section 7.6.2, Table 7-19 of the SIP submittal contains PSAT 
results for the Dolly Sods Area, which includes fifteen facilities 
where sulfate contributions are >=1.00% and addresses nearly 36.5% of 
the entire sulfate plus nitrate point source visibility impact in 2028; 
six of these fifteen facilities are located in West Virginia.\50\ Table 
7-20 contains PSAT results for the Otter Creek Wilderness Area, which 
includes fourteen facilities where sulfate contributions are >=1.00% 
and addresses more than 34.7% of the entire sulfate plus nitrate point 
source visibility impact in 2028; five of these fourteen

[[Page 6944]]

facilities are located in West Virginia.\51\ The West Virginia 
facilities listed in tables 7-19 and 7-20 are the same as the five 
facilities plus Grant Town Plant in section 7.8 of the SIP submittal.
---------------------------------------------------------------------------

    \50\ Allegheny Energy Supply Co, LLC--Harrison; Monongahela 
Power Co--Pleasants Power Station; Kentucky Power Company--Mitchell 
Plant; Appalachian Power Company--John E. Amos Plant; Monongahela 
Power Co--Fort Martin Power; and American Bituminous Power--Grant 
Town Plant.
    \51\ Allegheny Energy Supply Co, LLC--Harrison; Monongahela 
Power Co--Pleasants Power Station; Kentucky Power Company--Mitchell 
Plant; Appalachian Power Company--John E. Amos Plant; and 
Monongahela Power Co--Fort Martin Power.
---------------------------------------------------------------------------

    Tables 7-21 through 7-27 contain the PSAT results for the five West 
Virginia facilities \52\ that WV DEP selected for evaluation of 
emissions control measures based on sulfate contributions of >=1.00% to 
the following out-of-state Class I Areas: Acadia National Park (Maine), 
James River Face Wilderness Area (Virginia), Lye Brook Wilderness Area 
(Vermont), Moosehorn Wilderness Area (Maine), Roosevelt Campobello 
International Park (Maine/New Brunswick), Shenandoah National Park 
(Virginia), and Swanquarter Wilderness Area (North Carolina), 
respectively.
---------------------------------------------------------------------------

    \52\ Allegheny Energy Supply Co, LLC--Harrison; Monongahela 
Power Co--Pleasants Power Station; Kentucky Power Company--Mitchell 
Plant; Appalachian Power Company--John E. Amos Plant; and 
Monongahela Power Co--Fort Martin Power.
---------------------------------------------------------------------------

    Further, WV DEP States that (1) the Allegheny Energy Supply Co 
LLC--Harrison facility \53\ affects eight Class I areas; (2) 
Monongahela Power Co.--Pleasants Power Station impacts six Class I 
areas; (3) Mitchell Plant impacts four Class I areas; (4) Monongahela 
Power Co.--Fort Martin Power impacts three Class I areas; (5) 
Appalachian Power Company--John E. Amos Plant impacts three Class I 
areas; and (6) American Bituminous Power--Grant Town Plant impacts one 
Class I area. The full list of tagged facilities and their 
contributions to each Class I area can be found in Appendix E-7b of the 
SIP submittal. Thus, WV DEP ultimately identifies six West Virginia 
facilities as contributing to visibility impairment in at least one 
Class I Area, and five of these facilities as contributing to 
visibility impairment in multiple Class I Areas.54 55
---------------------------------------------------------------------------

    \53\ WV DEP sometimes refers to this facility as Monongahela 
Power Company--Harrison Power Station, with a Facility ID of 54033-
6271711. This is the same Facility ID used for Allegheny Energy 
Supply Co LLC--Harrison.
    \54\ See Section 7.6.2, ``PSAT Contributions at West Virginia 
Class I Areas'' and Section 7.6.3, ``AoI versus PSAT Contributions'' 
of WV DEP's Regional Haze SIP submittal for the 2nd Planning Period.
    \55\ In its submittal, and as described in IV.E.2. of this 
document, West Virginia eventually ruled out additional and existing 
emission reduction measures as being necessary for reasonable 
progress for five of these sources, without conducting a full 
analysis of the four statutory factors of CAA 169A(g)(1) and 40 CFR 
51.308(f)(2). However, for the sixth facility, Pleasants Power, 
which conducted a documented four-factor analysis, West Virginia did 
not reasonably justify its reliance on the four factors to rule out 
additional and existing emissions reductions measures that could be 
necessary for reasonable progress. See sections 7.6.4 and 7.8 of the 
SIP submittal.
---------------------------------------------------------------------------

    While the RHR does not explicitly list factors that a State must or 
may not consider when selecting the sources for which it will determine 
what control measures are necessary to make reasonable progress, a 
State opting to select a set of its sources to analyze must reasonably 
choose factors and apply them in a reasonable way given the statutory 
requirement to make reasonable progress towards natural visibility.\56\ 
The 2019 Guidance provides examples of criteria a State may consider to 
select sources for analysis of emission control measures \57\ none of 
which align with the types of information that West Virginia provided 
as justification. Given that WV DEP already performed quantitative PSAT 
and AOI modeling for these sources, confirming their contribution to 
visibility impairment at multiple in-state and out-of-state Class I 
areas, it is not clear based on the record presented why it is 
appropriate for WV DEP to rely on a qualitative weight-of-evidence 
reasoning, such as general claims about topography and stack height, to 
exclude these impacting sources from analysis under the four factors, 
which is what WV DEP did for eight of the thirteen facilities tagged 
for PSAT analysis.
---------------------------------------------------------------------------

    \56\ 2019 Guidance at 10.
    \57\ Id. (``Factors could include but are not limited to 
baseline source emissions, baseline source visibility impacts (or a 
surrogate metric for the impacts), the in-place emission control 
measures and by implication the emission reductions that are 
possible to achieve at the source through additional measures, the 
four statutory factors (to the extent they have been characterized 
at this point in SIP development), potential visibility benefits 
(also to the extent they have been characterized at this point in 
SIP development), and the five additional required factors listed in 
40 CFR 51.308(f)(2)(iv).'')
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2. Four-Factor Analysis and Reasonable Progress Analysis
    For five of the six facilities discussed in section 7.8 of the SIP 
submittal, WV DEP requested that each of the facilities perform four-
factor analyses to evaluate measures necessary for reasonable 
progress.\58\ Four of these five facilities declined to provide four-
factor analyses and instead claimed that such analyses were unnecessary 
for various reasons.\59\ It is unclear whether WV DEP relied on the 
justifications provided by these four facilities, though WV DEP never 
performed its own full four-factor analysis for any of those four 
facilities. Only one of the five facilities--Pleasants Power Station--
provided to WV DEP an engineering consultant's report titled ``Regional 
Haze Four-Factor SO2 Analysis.'' \60\ WV DEP included the 
facilities' explanations in the SIP submittal at section 7.8, and 
related appendices. The sixth facility discussed in section 7.8 is 
Grant Town Plant \61\ even though WV DEP did not request from the 
facility a reasonable progress or four-factor analysis for Grant Town 
Plant because WV DEP did not believe such an analysis was 
warranted.\62\ WV DEP then included tables of its own cost estimates 
\63\ for scrubber replacement at six facilities--the five facilities 
plus Grant Town Plant--which this document discusses at section 
IV.E.2.c. of this document. However, as we discuss in section IV.E.2.c. 
of this document, these cost estimates were deficient and 
insufficiently documented.
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    \58\ Section 7.8 of the SIP submittal at 196 of 257.
    \59\ Id. at 197-99, 201-02 of 257.
    \60\ Appendix G-2 to the WV DEP's Regional Haze SIP Submittal 
for the 2nd Planning Period at G-2d ``Response Letter from Energy 
Harbor (Pleasants Station).''
    \61\ Section 7.8 of the SIP submittal at 197-98 of 257.
    \62\ See Section 7.6.4 of the SIP submittal at 182 of 257.
    \63\ Section 7.8, Table 7-37 ``Estimated FGD replacement costs 
per facility, based on a 20-year remaining life expectancy,'' and 
Table 7-38, ``Estimated FGD replacement costs per unit'', SIP 
submittal at 203-05 of 257.
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a. Harrison Power Station, Grant Town Power Plant, Fort Martin Power 
Station, Mitchell Power Plant, and John E. Amos Power Plant
    In Section 7.8, WV DEP lists a variety of reasons four of the 
selected facilities (Harrison Power Station, Fort Martin Power Station, 
Mitchell Power Plant, and John E. Amos Power Plant) provided for not 
performing a four-factor analysis. In the SIP submittal, WV DEP does 
not explicitly state that it is adopting the four facilities' reasons 
as its own, but WV DEP reiterates the facilities' reasons in detail and 
does not disavow their explanations. To the extent that WV DEP relied 
on this information in developing its long-term strategy, it did not 
analyze or evaluate the information provided by the facilities and did 
not adequately explain how such information was or was not being used 
to support WV DEP's decision not to require a full four-factor analysis 
of these facilities. Although it is unclear whether WV DEP is relying 
on the four facilities' rationales, the EPA addresses them in this 
NPRM. WV DEP also provided its own reasons why Grant Town Plant, which 
it did not request to perform a four-factor analysis but included in 
the reasonable progress discussion, should not be required to impose 
any additional measures.

[[Page 6945]]

    For Harrison Power Station, WV DEP stated in its SIP submittal \64\ 
that, when asked for a reasonable progress analysis, facility owner/
operator Monongahela Power Company (MonPower) ``stated neither a formal 
SO2 controls four-factor analysis nor an SO2 
permit limit were necessary or appropriate for Harrison for regional 
haze purposes for multiple reasons.'' These reasons included claims by 
MonPower that ``visibility impacts from the facility are presently well 
below the URP glide paths, proving already implemented past measures 
have been and continue to be successful''; that ``Harrison FGD systems 
demonstrated a 97.1% average removal efficiency for 2017 through 2019, 
which exceeds the 95% control deemed as BART by EPA''; and that 
``Harrison averaged 0.16 pounds per mmBtu SO2 emissions from 
2015 through 2020 [which] is in compliance with the 0.2 pounds per 
mmBtu SO2 emission limit of the MATS rule for coal-fired 
EGUs, which the company claims is adequate to meet the exemption 
outlined in the EPA's August 20, 2019 Guidance on Regional Haze State 
Implementation Plans for the Second Implementation Period. . . .'' \65\ 
MonPower further claims that ``Harrison is subject to and meets the 
limits of the CSAPR FIP, and EPA and the courts have previously 
determined CSAPR is better than BART.''
---------------------------------------------------------------------------

    \64\ Section 7.8 of the SIP submittal at 197 of 257.
    \65\ mmBtu, also sometimes written as MMBTU or MMBtu, refers to 
one million British thermal units of heat input.
---------------------------------------------------------------------------

    For Grant Town Plant, WV DEP stated in its SIP submittal \66\ that 
because ``the facility is already subject to a federally enforceable 
Title V permit (R30-04900026-2020) that limits SO2 emissions 
to less than the quantity projected to exceed the 1.00% visibility 
threshold of the VISTAS PSAT modeling, it was determined that a 
reasonable progress analysis or a four-factor analysis request for 
Grant Town Plant was not warranted'' and that ``Grant Town maintains 
adequate SO2 emissions credits from CAMD for its 
SO2 emissions, and the facility is subject to the CSAPR 
SO2 budget.'' WV DEP also claimed that the remaining 
lifespan of Grant Town Power Plant is thirteen years, or until 
2035,\67\ when the power purchase agreement for the facility expires, 
and that WV DEP does not anticipate that this power purchase agreement 
will be extended. WV DEP therefore concludes ``additional 
SO2 controls would not be economically feasible for such a 
small and unique facility with a looming anticipated retirement date.'' 
\68\ Because of the reasons previously stated, WV DEP decided to not 
request a four-factor analysis from Grant Town Power Plant.\69\
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    \66\ Section 7.8 of the SIP submittal at 197-98 of 257.
    \67\ West Virginia states that the remaining lifespan of Grant 
Town Plant lasts until 2035 at page 206 of the SIP submittal and 
2036 at page 198 of the SIP submittal.
    \68\ Table 7-38 of the SIP submittal at 205 of 257.
    \69\ Section 7.8 of the SIP submittal at 197.
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    For Fort Martin Power Station, WV DEP included in its SIP submittal 
\70\ the same claims that MonPower relied on for screening out Harrison 
Power Station from additional analysis, except that MonPower stated 
that ``Fort Martin averaged 0.11 pounds per mmBtu SO2 
emissions from 2015 through 2020.'' WV DEP also claimed that the 
remaining lifespan of Fort Martin Power Station is expected to be four 
years, or 2026, when WV DEP expects ``the proposed Good Neighbor CSAPR 
FIP would require the facility to install SCR for NOx control'' and 
that WV DEP does not expect the facility's owner/operator to do so.\71\
---------------------------------------------------------------------------

    \70\ Id. at 198-99 of 257.
    \71\ Table 7-38, SIP submittal at 205 of 257, and ``Cost 
Estimates for Scrubber Replacement at Facilities Selected for Four 
Factor Analyses'' at 206 of 257.
---------------------------------------------------------------------------

    For Mitchell Power Plant, WV DEP stated in its SIP submittal \72\ 
that, when asked for a reasonable progress analysis, facility owner/
operator Kentucky Power Company (KPCo), a subsidiary of American 
Electric Power (AEP), responded that ``Mitchell emissions were well 
ahead of the uniform rate of progress goals to natural background 
visibility''; that ``continuing emissions reductions and retirements of 
coal-fired EGUs within the eastern United States, including within the 
AEP system, would provide for continuing progress within the planning 
period without the need for additional SO2 emissions 
reductions from Mitchell''; that ``Mitchell already employs the most 
effective type of SO2 controls available, which are designed 
to achieve a minimum of 98% emissions reduction''; that ``first CAIR 
and then CSAPR were previously determined by EPA to be better than 
BART, and Mitchell is in compliance with the CSAPR emissions trading 
program''; that ``Mitchell has always achieved the 0.2 pounds 
SO2 per million Btu limit implemented by the MATS rule as a 
surrogate compliance emission limit, often by less than half this 
amount on an annual basis''; and that ``EPA's own guidance States 
sources which were selected for analysis in the first planning period, 
and which installed BART controls could be excluded from analysis for 
the second planning period.'' Based on these claims, KPCo concluded 
that no further evaluation of Mitchell nor additional SO2 
controls are necessary.
---------------------------------------------------------------------------

    \72\ Section 7.8 of the SIP submittal at 201 of 257.
---------------------------------------------------------------------------

    For John E. Amos Power Plant, WV DEP stated in its SIP submittal 
\73\ that, when asked for a reasonable progress analysis, facility 
owner/operator Appalachian Power Company (APCo), stated that ``Amos 
emissions were well ahead of the uniform rate of progress goals to 
natural background visibility''; that continuing emissions reductions 
and retirements of coal-fired EGUs within the eastern United States, 
including within the AEP system, would provide for continuing progress 
within the planning period without the need for additional 
SO2 emissions reductions from Amos''; that ``Amos already 
employs the most effective type of SO2 controls available, 
which are designed to achieve a minimum of 98% emissions reduction''; 
that ``first CAIR and then CSAPR were previously determined by EPA to 
be better than BART, and Amos complies with the CSAPR emissions trading 
program''; that ``Amos has always achieved the 0.2 pounds 
SO2 per million Btu limit implemented by the MATS rule as a 
surrogate compliance emission limit, often by well less than half this 
amount on an annual basis''; and that ``EPA's own guidance States 
sources which were selected for analysis in the first planning period, 
and which installed BART controls could be excluded from analysis for 
the second planning period.'' Based on these claims, APCo concluded 
that no further evaluation of Amos nor additional SO2 
controls are necessary.
---------------------------------------------------------------------------

    \73\ Section 7.8 of the SIP submittal at 201-02 of 257.
---------------------------------------------------------------------------

    WV DEP's rejection of reasonable progress measures for Harrison 
Power Station, Grant Town Plant, Fort Martin Power Station, Mitchell 
Power Plant, and John E. Amos Power Plant is not based on consideration 
of the mandatory four factors and instead appears to be based, at least 
in part, on the facility owners' contention that these facilities are 
effectively controlled via existing measures,\74\ as described in

[[Page 6946]]

the August 2019 Guidance.\75\ However, if the outcome of a four-factor 
analysis is that no new measures are reasonable for a source, the EPA 
has interpreted the statute and the RHR to require that the source's 
existing measures are needed to prevent future visibility impairment 
(i.e., to prevent future emission increases) and thus necessary to make 
reasonable progress.\76\ If existing controls are determined to be 
necessary to make reasonable progress the existing controls must be 
incorporated into the SIP and made federally enforceable and permanent 
within the long-term strategy.\77\ Furthermore, if a State does not 
find its existing measures necessary for reasonable progress, a State 
must submit a demonstration within its submittal supporting its 
rationale.\78\ However, WV DEP did not provide any demonstration 
assessing the necessity of existing measures for reasonable progress; 
did not provide documentation for any specific existing measures such 
as permits, emissions limitations, or consent decrees; did not identify 
any existing controls to be included in the long-term strategy for the 
second planning period; and in the event the State found its existing 
controls unnecessary for reasonable progress, did not provide a 
demonstration supporting such a statement.\79\ WV DEP also cites 
anticipated source retirements, i.e., shutdowns (for example, Fort 
Martin by 2026) as reasons for not requiring new measures on screened-
in sources as a result of reasonable progress analyses.\80\ WV DEP also 
states that its estimated expected visibility improvements in its two 
Class I areas will be achieved via proposed or past shutdowns.\81\ 
However, while WV DEP provides information regarding anticipated and 
prior shutdowns within its submittal, it also states that it 
``considers all shuttered facilities which emit air pollution as 
necessary for reasonable progress towards the goal of minimizing 
anthropogenic visibility impairment at Class I areas.'' \82\
---------------------------------------------------------------------------

    \74\ Section 7.8 of the SIP submittal at 196-202 of 257. It is 
unclear if West Virginia is adopting the rationales of these 
facilities to justify not requiring these facilities to conduct the 
four-factor analysis West Virginia requested, or whether West 
Virginia's justification for not requiring a four-factor analysis is 
based solely on what it describes as West Virginia's own ``cost 
analyses for replacing the BART SO2 controls at the six 
selected facilities with limestone forced oxidation (LFSO) 
scrubbers, assuming a 98% average reduction for the hypothetical new 
scrubbers.'' SIP Submittal at 202 of 257. EPA has addressed in this 
NPRM the issues raised by the facilities to the extent they may have 
been relied upon by West Virginia.
    \75\ See August 2019 Guidance at 22-25.
    \76\ Section 4 of the 2021 Clarifications Memo, pages 8-9. See 
also CAA 169A(b)(2); 40 CFR 51.308(f)(2).
    \77\ Section 4 of the 2021 Clarifications Memo. See also CAA 
169A(b)(2); 40 CFR 51.308(f)(2). Additionally, consistent with our 
proposed partial disapproval of Arizona's Haze Plan (see 89 FR 
47398, May 31, 2024), if a state determines no new measures are 
necessary for reasonable progress, the must then determine whether a 
source's existing measures are necessary for reasonable progress. 
EPA finalized partial disapproval of Arizona's Haze Plan on December 
18, 2024 (see 89 FR 102744).
    \78\ Consistent with our proposed partial disapproval for 
Wyoming's Haze Plan (see 89 FR 63030, August 1, 2024), to the extent 
a state finds its existing measures are not necessary for reasonable 
progress, a state must provide a demonstration supporting their 
claim. EPA finalized partial disapproval of Wyoming's Haze Plan on 
December 2, 2024 (see 89 FR 95121). See also 2019 Guidance at 22-25.
    \79\ EPA is not stating that all existing measures are required 
to be in the SIP. As we acknowledged in the 2021 Clarifications 
Memo, ``there may be circumstances in which a source's existing 
measures are not necessary to make reasonable progress.'' However, 
EPA would expect that if a state believed that existing measure are 
not necessary for reasonable progress for the second planning period 
the state would ``demonstrate that a source will continue to 
implement its existing measures and will not increase its emission 
rate, it may not be necessary to require those measures under the 
regional haze program in order to prevent future emission 
increases.'' 2021 Clarifications Memo at 9. WVDEP provided no 
demonstration or explanation of its decision not to evaluate 
existing controls for these sources.
    \80\ ``Cost Estimates for Scrubber Replacement at Facilities 
Selected for Four Factor Analyses'' at 206 of 257 of the SIP 
submittal. Note also that as part of source selection West Virginia 
gives as a reason for not choosing Morgantown Energy Associates 
facility for reasonable progress analysis its filing of a permit 
application for two boiler retirements scheduled for 2020, SIP 
submittal at 184 of 257.
    \81\ West Virginia states that Pleasants Power should be placed 
on the deactivation list by June 1, 2023, SIP submittal 206 of 257 
and uses this as the lifespan of the facility in estimating costs of 
replacement controls as discussed below. West Virginia also lists a 
number of past shutdowns for various West Virginia facilities in 
section 7.2.2, ``State Control Programs Included in the 2028 
Projection Year.''
    \82\ Appendix H-4, ``West Virginia Department of Environmental 
Protection Division of Air Quality Responses to EPA Region 3 
Comments on the West Virginia Draft Regional Haze State 
Implementation Plan August 2022,'' section 2, WV DEP's Regional Haze 
SIP Submittal for the 2nd Planning Period.
---------------------------------------------------------------------------

    Nevertheless, WV DEP did not include the necessary documentation 
(e.g., for sources that have recently retired, documentation that 
demonstrates applicable sources are unable to resume operation and/or 
the State has revoked the active air permits) to ensure such shutdowns 
are made federally enforceable and permanent within the SIP.\83\ In 
fact, WV DEP stated that ``modifying the SIP to reflect every permit 
modification or facility shutdown which contributes to reasonable 
progress is itself not reasonable.'' \84\ However, the RHR at 40 CFR 
51.308(f)(2) and (3) requires that measures necessary for reasonable 
progress must be enforceable, documented and included in the SIP. WV 
DEP has not done so with respect to either existing or anticipated 
source shutdowns.
---------------------------------------------------------------------------

    \83\ While fuel conversions are not mentioned with respect to 
the six sources, West Virginia describes fuel conversions for other 
facilities at section 7.2.2, ``State Control Programs Included in 
the 2028 Projection Year.'' In the body of the main SIP submittal at 
section 7.2.2, West Virginia neither indicates whether it is relying 
on these fuel conversions as measures necessary for reasonable 
progress in the second planning period nor does it include the 
necessary documentation to ensure that the emission reductions 
resulting from the fuel conversions are permanently and federally 
enforceable. However, in Appendix H-4, section 4, in responding to 
EPA comments, West Virginia discusses non-EGU industrial boilers 
being replaced with natural gas units and states that it ``considers 
boiler replacements at these smaller non-EGU Sources to be 
reasonable progress'' and that ``[f]ederally enforceable permits 
demonstrating these changes have been added to the SIP supporting 
documentation.'' EPA is unable to locate these permits in the 
supporting documentation appended to the SIP submittal.
    \84\ Appendix H-4, section 2.
---------------------------------------------------------------------------

    Furthermore, WV DEP did not explain or adequately justify the 
absence of existing measures for certain facilities identified in the 
reasonable progress discussion within its SIP submission. WV DEP 
presents information from four of the facilities in support of those 
facilities' claims that four-factor analyses and SO2 permit 
limits are unnecessary (Harrison Power Station, Fort Martin Power 
Station, Mitchell Power Plant, John E. Amos Power Plant) because they 
emit at or below the Mercury and Air Toxics Standards (MATS) 
SO2 limits. To support its decision, WV DEP cites page 23 of 
the 2019 Guidance.\85\ However, while States may rely on the use of 
applicable SO2 limits (such as the 0.2 lb/MMBtu MATS limit) 
as being necessary for reasonable progress for the second planning 
period, States must have adopted either permit conditions or State 
regulations containing the SO2 limit(s) for the source(s) in 
question. Furthermore, the State must incorporate the applicable permit 
conditions or State regulations into the State's SIP submittal to make 
the conditions permanent and federally enforceable.\86\ Without 
documentation confirming what SO2 limits are necessary for 
reasonable progress, and documentation that the four sources are 
required to meet a federally enforceable and permanent permit condition 
equal to the applicable MATS SO2 limits, West Virginia has 
not fulfilled its obligation under the CAA and RHR under 40 CFR 
51.308(f)(2) to develop a long-term strategy containing enforceable 
measures that are necessary to make reasonable progress in the second 
planning period.
---------------------------------------------------------------------------

    \85\ SIP submittal at 197 and 198 of 257.
    \86\ The MATS SO2 limit is a limit that facilities 
may use to demonstrate that they meet the HCl limit for MATS, but 
facilities also have the option of directly complying with the MATS 
HCl limit, and therefore are not necessarily required to meet the 
MATS SO2 limit unless the limit is included as a specific 
permit condition.
---------------------------------------------------------------------------

    WV DEP presents justifications from the facilities regarding 
compliance with BART control efficiencies (Harrison Power Station, Fort 
Martin Power Station) and CSAPR emissions trading

[[Page 6947]]

(Grant Town Power Plant, Mitchell Power Plant, John E. Amos Power 
Plant) as reasons not to conduct four-factor analyses to evaluate 
additional measures that may be necessary for reasonable progress in 
the second planning period. Although it may be reasonable for a State 
not to select a particular source with BART-eligible units that 
installed and began operating controls to meet BART emission limits for 
the first implementation period on a pollutant-specific basis for 
further analysis,\87\ the Regional Haze Rule at 40 CFR 51.308(e)(5) 
anticipates the re-assessment of BART-eligible sources under second 
planning period SIP emissions control analyses. A State might, however, 
have a different, reasonable basis for not selecting such sources for 
control measure analysis.\88\ To the extent that this basis applies to 
the sources WV DEP selected for further analysis, West Virginia must 
document this basis within its SIP submittal as required by 40 CFR 
51.308(f)(2)(i) and (iii). In this case, West Virginia failed to do so. 
Additionally, West Virginia's BART determination for EGUs for the 
regional haze first planning period relied on CSAPR as an alternative 
to source-specific BART determinations.\89\ CSAPR is a trading program 
that does not impose specific emissions limitations on particular 
facilities. And in fact, WV DEP did not identify any enforceable and 
permanent SO2 limits that apply to the selected power plants 
subject to CSAPR. Therefore, in accordance with 40 CFR 51.308(e)(5), it 
is not reasonable for West Virginia to exclude the selected BART-
eligible sources from consideration under the four statutory factors, 
simply because they are in compliance for BART.
---------------------------------------------------------------------------

    \87\ 2019 Guidance at 25.
    \88\ Guidance on Regional Haze State Implementation Plans for 
the Second Implementation Period. www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and Standards, 
Research Triangle Park (August 20, 2019).
    \89\ 83 FR 48249 (September 24, 2018). See also see September 
16, 2015 ``West Virginia State Implementation Plan Revision for 
Regional Haze and Clean Air Act Sec.  110(a)(2)(D)(i)(II) for 
Visibility Protection,'' www.regulations.gov/document/EPA-R03-OAR-2018-0217-0002.
---------------------------------------------------------------------------

    Finally, WV DEP also notes, as the facilities noted, that several 
consent decrees related to currently installed SO2 scrubbers 
for two of the facilities identified for further evaluation in its SIP 
(Mitchell Power Plant, John E. Amos Power Plant). But WV DEP does not 
state whether the consent decrees impose any specific emission limits, 
and does not ask for the measures required under the consent decrees 
submitted to be made federally enforceable and permanent within the SIP 
if there are such specific emission limits.
    In conclusion, while WV DEP reiterates the facilities' 
information--that there are or may be anticipated or recent source 
retirements, the applicable MATS SO2 emissions limits, BART 
requirements, and consent decrees within its SIP submittal for five of 
the sources selected for consideration under the four statutory 
factors--WV DEP provides no documentation or evidence within its 
submittal that it has incorporated the aforementioned existing 
effective controls as federally enforceable and permanent measures to 
be included in its long-term strategy for the second planning period. 
Additionally, WV DEP provides no evidence of, or documentation of, an 
actual long-term strategy that contains enforceable emissions 
limitations that West Virginia has determined are necessary to make 
reasonable progress as required by CAA 169A and the RHR, 40 CFR 
51.308(f)(2).
    For four of the six facilities (Harrison Power Station, Fort Martin 
Power Station, John E Amos Power Plant, Mitchell Power Plant) that were 
selected to determine measures necessary for reasonable progress, WV 
DEP also cites information from the owners of the power plants with 
reference to its progress toward achieving the URP glidepath for Dolly 
Sods and Otter Creek. The facility owners cite being below the URP as 
an additional reason for not providing four-factor analyses or imposing 
any reasonable progress measures or controls. While it is not clear if 
West Virginia is relying on any of the information provided by the 
facilities, including the URP, the EPA reinforces the fact that 
reliance on being at or below the URP is not a basis to forgo requiring 
further analysis of emissions measures for these sources, in the 2017 
RHR preamble, the EPA clearly stated that being on or below the URP is 
not a ``safe harbor''; i.e., achieving the URP does not mean that a 
Class I Area is making ``reasonable progress'' and does not relieve a 
State from using the four statutory factors to determine the emissions 
measures needed to achieve such progress.\90\ Simply being below the 
URP should therefore not be used as a factor when determining what 
additional controls, if any, are necessary for reasonable progress. The 
URP is a planning metric used to gauge the amount of progress made thus 
far and the amount left to make. Because the URP is not based on the 
four statutory factors, it cannot be used to determine whether the 
amount of progress made in any particular implementation period is 
reasonable.\91\
---------------------------------------------------------------------------

    \90\ See the 2017 RHR, 82 FR 3093 and 3099, January 10, 2017.
    \91\ See 2019 Guidance at 50 and 2021 Clarifications Memo at 15.
---------------------------------------------------------------------------

    WV DEP also indicates that SO2 reductions achieved in 
the first planning period for certain sources or facilities--including 
Harrison Power Station, Fort Martin Power Station, Mitchell Power 
Plant, and John E. Amos Power Plant--was raised by those facilities as 
a justification to excuse them from having to undergo further 
evaluation and a four-factor analysis.\92\ The EPA acknowledges that 
West Virginia made significant reductions in SO2 emissions 
in the first planning period and that surrounding States and RPOs 
contribute to SO2 emissions in West Virginia Class I Areas. 
But, to the extent that West Virginia is relying on this rationale, 
neither the Regional Haze Rule nor the CAA allows a State to avoid 
properly considering the four factors, in reliance on their previous 
planning period reductions and/or due to emissions in other States, as 
required by CAA 169A(g)(1) and the RHR, 40 CFR 51.308(f)(2). 
Additionally, the EPA has advised States that a source's visibility 
impact relative to a State's total contribution to visibility 
impairment is relevant to ensuring that a State is addressing its own 
contribution regardless of what other States are doing.\93\
---------------------------------------------------------------------------

    \92\ See, for example, pages 201-202 of WV DEP's Regional Haze 
SIP Submittal for the 2nd Planning Period.
    \93\ 2021 Clarifications Memo at 15.
---------------------------------------------------------------------------

b. Pleasants Power Station
    As previously discussed, WV DEP evaluated six facilities as part of 
the reasonable progress analysis to determine if any potential 
emissions reduction measures were necessary for reasonable progress in 
the second planning period. Of these six facilities, only Pleasants 
Power Station (owned and operated by Energy Harbor) submitted an 
analysis utilizing the four statutory factors prescribed under CAA 
169A(g)(1) and 40 CFR 51.308(f)(2)(i).\94\ The Pleasants Power Station 
reasonable progress analysis considered three pre-combustion and five 
post-combustion SO2 emissions controls.\95\ The pre-

[[Page 6948]]

combustion control options considered were: utilization of lower sulfur 
coals; fuel blending with limestone; and coal cleaning. The post-
combustion controls considered were: wet limestone scrubbers, also 
known as limestone forced oxidation scrubbers (LSFO); \96\ spray dry 
absorbers (SDA); dry sorbent injection (DSI); circulating dry scrubbers 
with fabric filters (DS/FF); and hydrated ash reinjection (HAR).'' \97\ 
Based on the documentation provided within the submittal, it appears WV 
DEP relied, at least in part, on the January 2021 ``Regional Haze Four-
Factor Analysis'' \98\ provided by Energy Harbor to eliminate all 
potential control options, aside from LSFO, from further consideration 
under the four statutory factors under the basis of technological 
feasibility. However, the justifications provided by Energy Harbor as 
to why it determined these control options to be infeasible are more 
appropriately considered within the context of an economic analysis. 
For example, Energy Harbor stated that use of lower sulfur coal is 
technologically infeasible. To justify this statement, Energy Harbor 
explained that use of lower sulfur coal would require facility 
modifications. While those modifications would come with some 
associated cost (which is not quantified or documented within the West 
Virginia submittal), those modifications are not described in 
sufficient detail for the EPA to be able to evaluate whether these 
options are, in fact, technologically infeasible. WV DEP did not 
provide any additional explanation or analysis beyond that provided by 
Energy Harbor.
---------------------------------------------------------------------------

    \94\ The four statutory factors are the costs of compliance, the 
time necessary for compliance, the energy and non-air quality 
environmental impacts of compliance, and the remaining useful life 
of any potentially affected anthropogenic source of visibility 
impairment. See CAA 169A(g)(1) and 40 CFR 51.308(f)(2)(i).
    \95\ Section 7.8 of the SIP submittal at 199 of 257.
    \96\ LSFO is the correct abbreviation, though West Virginia also 
uses the incorrect abbreviation LFSO multiple times in the SIP 
submittal as quoted by EPA.
    \97\ Section 7.8 of the SIP submittal at 199 of 257.
    \98\ Appendix G-2 at G-2d ``Response Letter from Energy Harbor 
(Pleasants Station),'' WV DEP's Regional Haze SIP Submittal for the 
2nd Planning Period.
---------------------------------------------------------------------------

    Similarly, several post-combustion controls--spray dryer absorber, 
dry sorbent injection, circulating dry scrubber, and hydrated ash 
reinjection--were also stated to be technologically infeasible, but the 
justifications are, again, primarily economic in nature.\99\ Table 1-1 
of the January 2021 ``Regional Haze Four-Factor Analysis'' lists loss 
of revenue from sale of recovered gypsum and the need to add a 
particulate removal system and dry by-product disposal issues as the 
primary reasons to reject these controls on the basis of technological 
infeasibility. First, as with the pre-combustion controls, WV DEP (and 
the facility) have not provided sufficient detail for the EPA to be 
able to adequately evaluate whether these potential control options 
were appropriately eliminated from further analysis under the four 
statutory factors based on technological infeasibility. Second, while 
there may be legitimate technological issues with the addition of a 
particulate removal system (e.g., plant layout/space constraints), the 
loss of revenue from gypsum recovery and additional waste removal costs 
are economic in nature and more appropriately considered under the cost 
of compliance factor. However, neither Energy Harbor, nor WV DEP, 
provided sufficient evidence as to how these factors would impact the 
cost of compliance for implementing these control technologies. While 
the facility did provide some cost data within its submittal to the 
State, neither the source nor the State provided cost calculations in 
the form of dollar per ton of emissions reduced. Therefore, because 
there is no detailed cost analysis documented within the SIP submittal 
using an established metric such as dollar per ton, the EPA therefore 
is unable to evaluate whether these controls might be available at 
reasonable cost.\100\ West Virginia failed to substantiate its 
determination that energy and non-air quality impacts resulting from 
the installation of SO2 control measures and the remaining 
useful life of the units did not justify the cost of installing 
SO2 controls. West Virginia also failed to reasonably 
quantify and consider the ``cost of compliance'' and develop a record 
with respect to those costs as a basis for eliminating potential 
control options, in addition to incorrectly classifying the rationale 
as being based on technological infeasibility. These deficiencies 
result in an inadequate consideration by West Virginia of the four 
factors to eliminate possible controls for reasonable progress.
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    \99\ See Appendix G-2 at G-2d section 4.2 ``Step 2: Eliminate 
Technically Infeasible SO2 Control Technologies'' of the 
``Regional Haze Four Factor Analysis.''
    \100\ The cost data provided in the WV DEP Regional Haze SIP 
Submittal is presented in table 4.1.2 of the January 2021 ``Regional 
Haze Four-Factor Analysis,'' in various units of $/KW, $/kw-yr, and 
$/MWh. It is unclear how these values relate to EPA's recommended 
metric of cost/ton of emissions reduction. It is also unclear how/if 
West Virginia relied on these costs, since these controls were 
deemed to be technically infeasible, rather than being too costly. 
See 2019 Guidance at 31.
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    With respect to LSFO, which was the single control option that was 
deemed to be technologically feasible and was evaluated for cost of 
compliance, WV DEP stated that Energy Harbor estimated the ``cost-
effectiveness of the LFSO (sic) system is $11,292.95 per ton, or 
$9,931.94 per ton for one scrubber,'' and ``the installation time for 
an LFSO (sic) system at Pleasants to be approximately 5 years with 2-3 
years of plant non-operation, which is insurmountable lost revenue.'' 
\101\ However, neither Energy Harbor nor WV DEP has provided 
documentation within the record to support these calculations and the 
assertion that a two-year outage would be necessary for the 
modifications.
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    \101\ Section 7.8 of the SIP Submittal at 200 of 257.
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    In addition to the deficient four-factor analysis, West Virginia's 
submission does not meet the requirements of CAA 169A or 40 CFR 
51.308(f) because it did not analyze or include federally enforceable 
existing effective measures for Pleasants Power Station as necessary 
measures to meet reasonable progress for the second planning period. As 
we noted in our discussion with respect to West Virginia's failure to 
consider existing measures for the facilities for which it ultimately 
did not require a four-factor analysis, West Virginia's rejection of 
new controls for Pleasants Power Station should have resulted in 
consideration of whether existing measures at Pleasants Power Station 
are necessary for reasonable progress.\102\ The RHR is designed to 
achieve the statutory goal of ``remedying of any existing, impairment 
of visibility in mandatory class I Federal areas which impairment 
results from manmade air pollution,'' CAA 169A(a), through a ``long-
term strategy [that] must include the enforceable emissions 
limitations, compliance schedules, and other measures that are 
necessary to make reasonable progress, as determined pursuant to [40 
CFR 51.308](f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). While 
existing visibility impairment is remedied by reducing emissions from 
existing sources, the EPA has explained that ``[f]uture visibility 
impairment is prevented by mitigating impacts from new sources and 
ensuring that existing sources do not increase their emissions in a 
manner inconsistent with reasonable progress.'' Therefore, ``[w]hen the 
outcome of a four-factor analysis is that no new measures are 
reasonable for a source, the source's existing measures are generally 
needed to prevent future visibility impairment (i.e., to prevent future 
emission increases) and thus necessary to make reasonable progress. 
Measures that are necessary to make reasonable progress must be 
included in the SIP.'' \103\ West Virginia eliminated additional 
control measures with a deficient and

[[Page 6949]]

inadequately justified or documented four-factor analysis and then did 
not analyze whether existing measures at Pleasants Power Station were 
necessary for reasonable progress, leaving the EPA unable to determine 
if the existing control measures should have been included in the long-
term strategy as required by 40 CFR 51.308(f)(2) and outlined in our 
2019 Guidance at 20-22.
---------------------------------------------------------------------------

    \102\ See 2019 Guidance at 22-25
    \103\ Section 4 of the 2021 Clarifications Memo, pages 8-9. See 
also CAA 169A(b)(2); 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------

    West Virginia also stated in its SIP submittal that ``Energy Harbor 
noted the mandatory Federal Class I areas where the VISTAS PSAT 
modeling predicted greater than 1.00% threshold visibility impacts from 
the facility are presently well below the URP glide paths, 
demonstrating already implemented past emissions reductions measures 
have been and continue to be successful.'' Like the discussion in 
section IV.E.2.a. of this document regarding the other five facilities, 
simply being below the URP should not be used to determine what 
additional controls, if any, are necessary for reasonable progress, as 
the URP is only meant to gauge the amount of progress made thus far and 
the amount left to make. Because the URP is not based on the four 
statutory factors, it cannot be used to determine whether the amount of 
progress made in any particular implementation period is 
reasonable.\104\ While it is unclear as to what extent Energy Harbor 
relied upon this assumption when conducting its analyses, the EPA 
reiterates that the URP cannot be used to eliminate additional control 
measures from consideration under a reasonable progress analysis/four 
statutory factors.
---------------------------------------------------------------------------

    \104\ See 2019 Guidance at 50 and 2021 Clarifications Memo at 
15.
---------------------------------------------------------------------------

    WV DEP stated that the remaining useful life of Pleasants Power 
Station is one year, based on the claim that Energy Harbor placed both 
units on the PJM deactivation list for deactivation by June 1, 
2023.\105\ However, as of November 2024, there is no evidence as to if 
this facility remains in operation or has permanently shut down, and WV 
did not include any documentation with its SIP submittal to 
substantiate this anticipated shutdown that would make it permanent and 
federally enforceable within the SIP submittal.\106\ As explained 
previously in the discussion on the other facilities selected for 
reasonable progress, certain retirements/shutdowns could be considered 
as part of West Virginia's long-term strategy for making progress 
towards the national goal, provided that they are made permanent and 
federally enforceable and are included in the SIP. However, West 
Virginia has not requested that the shutdown, nor provided the 
necessary documentation of the shutdown, for it to be included as a 
permanent and federally enforceable measure necessary for reasonable 
progress its long term strategy in the SIP. Therefore, the EPA 
concludes there is nothing within WV DEP's submittal to substantiate 
the use of the one year remaining useful life provided for Pleasants 
Power Station.
---------------------------------------------------------------------------

    \105\ Section 7.8 of the SIP Submittal at 204, 206 of 257
    \106\ 2019 Guidance at 34 (``In the situation of an enforceable 
requirement for the source to cease operation before the end of the 
useful life of the controls under consideration, a state may use the 
enforceable shutdown date as the end of the remaining useful life. 
To the extent such a requirement is being relied upon for a 
reasonable progress determination, the measure would need to be 
included in the SIP and/or be federally enforceable. See 40 CFR 
51.308(f)(2).'').
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c. West Virginia's Cost Estimates and Four-Factor Analyses for 
Replacing Existing SO2 Controls With New LSFO Scrubbers
    As previously discussed, WV DEP provided its own independent cost 
estimates analyzing the replacement of existing BART SO2 
controls with new LSFO scrubbers for all six facilities in section 7.8 
of the SIP submittal. WV DEP stated within its submittal that LSFO ``is 
considered the best technology with the highest SO2 removal 
efficiency of all coal and acid gas control technologies.'' \107\ In 
table 7-37,\108\ WV DEP estimated the facility-wide cost per potential 
ton of emission reduction based on a twenty-year remaining life 
expectancy.
---------------------------------------------------------------------------

    \107\ ``Cost Estimates for Scrubber Replacement at Facilities 
Selected for Four Factor Analyses'' SIP submittal at 202 of 257.
    \108\ SIP submittal at 203 of 257.
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    As set forth in table 7-38, WV DEP then estimated the cost per 
potential ton of emission reduction for each unit based on the 
anticipated remaining useful life of each unit. WV DEP states that 
these per-unit cost estimates are ``significantly more representative'' 
because the estimates in table 7-37 ``are quite generous in assuming 
the expected life of the selected facilities to be 20 years.'' \109\ WV 
DEP stated that the remaining useful life of Fort Martin Power Station 
is anticipated to be four years, or until 2026, when WV DEP expects 
``the proposed Good Neighbor CSAPR FIP would require the facility to 
install SCR for NOX control'' and that WV DEP does not 
expect the facility's owner/operator to do so.\110\ WV DEP also stated 
that the remaining useful life of Grant Town Plant is thirteen years, 
or 2035,\111\ when the power purchase agreement for the facility 
expires, and that WV DEP does not anticipate that this power purchase 
agreement will be extended beyond 2035. WV DEP also stated that the 
remaining lifespans of Harrison Power Station, the John E. Amos Plant, 
and the Mitchell Plant each are not anticipated to exceed fifteen 
years, or 2037, based on the age of the facility in 2037 (sixty-five 
years old) compared to the fifty-year average lifespan of coal-fired 
power plants in the United States according to the Energy Information 
Administration (EIA).\112\ Finally, as discussed previously, WV DEP 
stated that the remaining lifespan of Pleasants Power Station is one 
year, as the owner/operator placed the facility on the PJM list for 
deactivation by June 1, 2023, though WV DEP's response to the EPA's 
comments also notes that this shutdown is ``not currently 
enforceable.'' \113\ Furthermore, WV DEP has not provided any evidence 
that the described retirement dates for any of the six facilities it 
performed cost effectiveness analyses for are federally enforceable and 
permanent within its SIP submittal.
---------------------------------------------------------------------------

    \109\ Id.
    \110\ Table 7-38, SIP submittal at 205 of 257, and ``Cost 
Estimates for Scrubber Replacement at Facilities Selected for Four 
Factor Analyses'' at 206 of 257.
    \111\ West Virginia states that the remaining lifespan of Grant 
Town Plant lasts until 2035 at page 206 of the SIP submittal and 
2036 at page 198 of the SIP submittal.
    \112\ SIP submittal at 206 of 257.
    \113\ Appendix H-4, ``West Virginia Department of Environmental 
Protection Division of Air Quality Responses to EPA Region 3 
Comments on the West Virginia Draft Regional Haze State 
Implementation Plan August 2022,'' section 3. See also SIP submittal 
at 206 of 257.
---------------------------------------------------------------------------

    In addition to ``remaining useful life'' being one of the four 
statutory factors, the EPA has previously established within its 2019 
Guidance that a short remaining useful life is also directly correlated 
with the cost of compliance factor, as the annualized calculated cost 
of compliance generally increases with a shorter remaining useful life 
based on the decreasing amortization period.\114\ In other words, a 
short remaining useful life increases the remaining cost of compliance 
for implementing new or additional emissions control technologies. As 
previously discussed, WV DEP has not provided sufficient evidence 
within its SIP submittal that any of the six retirement dates are 
federally enforceable to warrant the use of a shorter remaining useful 
life within its cost estimates. Therefore, the EPA is unable to 
conclude whether the provided dates represent a reasonable

[[Page 6950]]

assumption upon which to base a cost analysis \115\.
---------------------------------------------------------------------------

    \114\ 2019 Guidance at 20.
    \115\ The EPA Control Cost Manual generally recommends an 
assumed 30-year lifetime for scrubbers and used a 30- year lifetime 
in all of the Control Cost Manual example calculations. See Section 
5--Chapter 1: Wet and Dry Scrubbers for Acid Gas Control, pp 1-8 and 
1-36 to 1-37, available atwww.epa.gov/sites/default/files/2021-05/documents/wet_and_dry_scrubbers_section_5_chapter_1_control_cost_manual_7th_edition.pdf. See also 2019 Guidance at 33-34 (``In the situation where 
an enforceable shutdown date does not exist, the remaining useful 
life of a control under consideration should be full period of 
useful life of that control as recommended by EPA's Control Cost 
Manual.'').
---------------------------------------------------------------------------

    Additionally, the cost estimates that WV DEP performed for the six 
facilities discussed in IV.E.2.a. and IV.E.2.b., of this document, are 
insufficiently justified within its SIP submittal. For example, WV DEP 
includes categories of costs (such as new LSFO costs and annual 
operation and maintenance costs as facility-wide and unit-specific 
costs) in tables 7-37 and 7-38. WV DEP explains that these costs were 
based on a 9,500 Btu/kWH \116\ heat rate and an assumed 20-year 
lifetime. However, WV DEP does not provide any evidence supporting how 
it established those costs, nor does WV DEP explain the origin of such 
information including its underlying calculations or documentation. For 
example, as noted above, WV DEP did not provide unit level evidence of 
enforceable and permanent retirements for units that have an assumed 
shortened lifetime in table-7-38. But WV DEP also did not adequately 
explain why they used a 20-year lifetime for the calculations in table 
7-37 instead of a 30-year lifetime, as recommended in the EPA's Control 
Cost Manual. Comparing the existing age of operating plants to the 
average age of all plants in the country is not an appropriate 
justification for assuming a shortened lifetime (using 20 years instead 
of 30 years). The EPA agrees that it would likely be impractical and 
prohibitively expensive to remove the existing control equipment and 
replace it with entirely new controls in pursuit of relatively minor 
improvements in emission reduction efficiency. However, this is not the 
appropriate basis upon which to exclude potential additional measures 
(e.g., optimization of existing controls with a corresponding emissions 
limit) from consideration in a reasonable progress analysis, and would 
be inconsistent with consideration of a ``meaningful set'' of control 
options.\117\ In addition, as West Virginia is requiring no additional 
emissions reductions measures for selected sources in the second 
planning period, the SIP submittal also does not explain or adequately 
support the absence of analysis or documentation of existing measures 
within the SIP (e.g., existing permit limits) for the facilities 
identified in the reasonable progress discussion and whether those 
measures are necessary for reasonable progress. West Virginia's 
deficient and insufficiently documented cost estimates ultimately 
result in the State's failure to develop a long-term strategy 
containing enforceable measures that are necessary to make reasonable 
progress in the second planning period under CAA 169A and RHR 40 CFR 
51.308(f)(2).\118\
---------------------------------------------------------------------------

    \116\ Kilowatthour (kWh) is a measure of electricity defined as 
a unit of work or energy, measured as 1 kilowatt (1,000 watts) of 
power expended for 1 hour.
    \117\ 82 FR 3088.
    \118\ West Virginia's independent analysis did not consider two 
of the four statutory factors of CAA section 169A(g)(1)--the energy 
and non air quality environmental impacts of compliance and time 
necessary for compliance.
---------------------------------------------------------------------------

d. Summary/Conclusion
    Regarding selection of sources for reasonable progress and four-
factor analyses, West Virginia's submittal cites the EPA's 2019 
Guidance in saying that ``that the selection of emission sources for 
analysis is the responsibility of the state.'' \119\ However, as part 
of this analysis, States are required to adequately justify their 
rationale and methodology for selecting sources and evaluating 
emissions controls. And in fact, West Virginia quotes the regional haze 
rule requirement at 40 CFR 51.308(f)(2)(i) that ``The State must 
include in its implementation plan a description of the criteria it 
used to determine which sources or groups of sources it evaluated and 
how the four factors were taken into consideration in selecting the 
measures for inclusion in its long-term strategy.'' \120\ Based on the 
information contained in the SIP submittal and the EPA's review of the 
information, West Virginia has not satisfied this requirement.
---------------------------------------------------------------------------

    \119\ See section 7.6.4 of the SIP submittal at 180 of 257.
    \120\ Id.
---------------------------------------------------------------------------

    Therefore, West Virginia's inadequate analysis of the four 
statutory factors was unreasonable. It was not reasonable for West 
Virginia to reject determining what measures, if any, are necessary to 
make reasonable progress toward the national goal, and thus need to be 
a part of the State's long-term strategy. West Virginia failed to 
``evaluate and determine the emission reduction measures that are 
necessary to make reasonable progress by considering the costs of 
compliance, the time necessary for compliance, the energy and non-air 
quality environmental impacts of compliance, and the remaining useful 
life of any potentially affected anthropogenic source of visibility 
impairment,'' as required by 40 CFR 51.308(f)(2)(i) and CAA section 
169A(g)(1). The EPA expressed these issues and concerns during the 
public comment period of West Virginia's draft SIP submittal.\121\ West 
Virginia's submittal has not adequately addressed these deficiencies.
---------------------------------------------------------------------------

    \121\ See January 5, 2022, letter from Cristina Fernandez, 
Director Air and Radiation Division, EPA Region 3 to Laura Crowder, 
Division of Air Quality, WV DEP, in the rulemaking docket for this 
action.
---------------------------------------------------------------------------

    Further, the national goal set by Congress outlines both the 
remedying of any existing visibility impairment, and also preventing 
any future visibility impairment. CAA section 169A(a). In the absence 
of any new measures, West Virginia also did not evaluate whether the 
continued implementation of the existing measures at any of the 
selected sources is necessary for reasonable progress. Specifically, 
West Virginia did not clearly explain that it intends to submit any of 
the measures for the six facilities discussed in section 7.8 of the SIP 
as existing measures necessary for reasonable progress, did not submit 
documentation for any particular existing measures, and does not 
request to include such measures in the SIP as part of its long-term 
strategy. West Virginia therefore did not provide a reasonable 
rationale to support a conclusion that for the second planning period, 
no new or existing measures are necessary for its long-term strategy, 
despite identifying numerous sources that impact visibility at nine 
Class I Areas.
    Providing a long-term strategy for making reasonable progress 
toward the national goal, including consideration of the four factors, 
is a statutory and regulatory requirement for every State. Although WV 
DEP selected six sources for reasonable progress analysis and conducted 
its own cost estimates for those six sources, and one facility 
conducted a four-factor analysis upon which WV DEP relied, West 
Virginia failed to conduct sufficiently robust and adequately supported 
analyses of the four statutory factors for any of the six sources. West 
Virginia neither assessed other potential new measures, nor did it 
conduct any analysis of existing measures or put forth such measures 
for inclusion in the SIP. Therefore West Virginia has not established 
that its second planning period SIP submission contains the emission 
limits, schedules of compliance, and other measures as may be necessary 
to make reasonable progress toward meeting the national

[[Page 6951]]

visibility goal consistent with the CAA and the RHR.\122\
---------------------------------------------------------------------------

    \122\ See also CAA 169A(b)(2).
---------------------------------------------------------------------------

    In conclusion, the SIP submission meets neither the regional haze 
requirements, nor requirements of the CAA. Specifically, as described 
in detail above, the SIP submission fails to satisfy the statutory 
requirements in CAA section 169A(b)(2)(B) to contain a long-term 
strategy for making reasonable progress; the CAA section 169A(g)(1) 
requirement to consider the four factors in determining reasonable 
progress; and the CAA section 169A(b)(2) requirement for the SIP to 
contain the emissions limits, schedules of compliance and other 
measures as may be necessary to make reasonable progress toward meeting 
the national goal. In addition, lack of robust evaluation of emissions 
measures considering the four factors, and related inadequate 
supporting documentation of the analyses and conclusions, results in 
West Virginia not meeting the regulatory requirements in 40 CFR 
51.308(f)(2) and (f)(2)(i) and (iii). Therefore, the EPA is proposing 
to disapprove West Virginia's Regional Haze SIP submission.

F. Additional Long-Term Strategy Requirements

    The consultation requirements of 40 CFR 51.308(f)(2)(ii) provide 
that States must consult with other States that are reasonably 
anticipated to contribute to visibility impairment in a Class I Area to 
develop coordinated emission management strategies containing the 
emission reductions measures that are necessary to make reasonable 
progress. Section 51.308(f)(2)(ii)(A) and (B) require States to 
consider the emission reduction measures identified by other States as 
necessary for reasonable progress and to include agreed upon measures 
in their SIPs. Section 51.308(f)(2)(ii)(C) speaks to what happens if 
States cannot agree on what measures are necessary to make reasonable 
progress.
    WV DEP included documentation of its calls, webinars, 
presentations, and other consultation with VISTAS and non-VISTAS States 
from December 2017 to October 2020. West Virginia's consultation 
documentation confirms that no States disagreed with or provided 
comment on West Virginia's approach to its long-term strategy.
    Section 51.308(f)(2)(iii) also requires that the emissions 
information considered to determine the measures that are necessary to 
make reasonable progress include information on emissions for the most 
recent year for which the State has submitted triennial emissions data 
to the EPA (or a more recent year), with a twelve-month exemption 
period for newly submitted data.
    WV DEP included emissions information from the most recent year in 
its submittal; 2017, 2018, and 2019 emissions information that had been 
previously reported to the EPA and compared these emissions to the 2028 
emissions used in its modeling.\123\ Table 7-35 shows all West Virginia 
facilities with greater than 100 tpy SO2 emissions in 2017 
and table 7-36 shows all West Virginia facilities with greater than 100 
tpy NOX emissions in 2017.
---------------------------------------------------------------------------

    \123\ See Section 7.6.5, ``Evaluation of Recent Emission 
Inventory Information'' of WV DEP's Regional Haze SIP Submittal for 
the 2nd Planning Period.
---------------------------------------------------------------------------

    As summarized in section IV of this document, the State provided 
emissions inventory information for individual sources for multiple 
years, including the most recent year for which the State submitted 
emissions data to the EPA in compliance with the triennial reporting 
requirements of the AERR.
    Regardless, as explained in the preceding sections, due to flaws 
and omissions in its source evaluations, four-factor analyses and the 
resulting control determinations, the EPA finds that West Virginia 
failed to submit to the EPA a long-term strategy that includes ``the 
enforceable emissions limitations, compliance schedules, and other 
measures that are necessary to make reasonable progress'' as required 
by 40 CFR 51.308(f)(2).\124\ Consequently, we find that West Virginia's 
SIP does not satisfy the long-term strategy requirements of 40 CFR 
51.308(f)(2). Therefore, the EPA proposes to disapprove all elements of 
West Virginia's SIP submission as it relates to 40 CFR 51.308(f)(2)'s 
long-term strategy requirements.
---------------------------------------------------------------------------

    \124\ See also CAA 169A(b)(2)(B) (requiring regional haze SIPs 
to ``contain such emission limits, schedules of compliance and other 
measures as may be necessary to make reasonable progress toward 
meeting the national goal, . . . including . . . a long-term . . . 
strategy for making reasonable progress[.]'').
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G. Reasonable Progress Goals

    Section 51.308(f)(3) contains the requirements pertaining to RPGs 
for each Class I Area. Section 51.308(f)(3)(i) requires a State in 
which a Class I area is located to establish RPGs--one each for the 
clearest days and the most impaired days--reflecting the visibility 
conditions that will be achieved at the end of the planning period as a 
result of the emission limitations, compliance schedules, and other 
measures required under paragraph (f)(2) to be in a State's long-term 
strategy, as well as the implementation of other CAA requirements. The 
long-term strategy, as reflected by the RPGs, must provide for an 
improvement in visibility on the most impaired days relative to the 
baseline period and ensure no degradation on the clearest days relative 
to the baseline period. Section 51.308(f)(3)(ii) applies in 
circumstances in which a Class I area's RPG for the most impaired days 
represents a slower rate of visibility improvement than the uniform 
rate of progress calculated under 40 CFR 51.308(f)(1)(vi). Under 40 CFR 
51.308(f)(3)(ii)(A), if the State in which a mandatory Class I area is 
located establishes an RPG for the most impaired days that provides for 
a slower rate of visibility improvement than the URP, the State must 
demonstrate that there are no additional emission reduction measures 
for anthropogenic sources or groups of sources in the State that would 
be reasonable to include in its long-term strategy. Section 
51.308(f)(3)(ii)(B) requires that if a State contains sources that are 
reasonably anticipated to contribute to visibility impairment in a 
Class I area in another State, and the RPG for the most impaired days 
in that Class I area is above the URP, the upwind State must provide 
the same demonstration.
    West Virginia established 2028 RPGs for both of its Class I areas 
in deciviews for the 20 percent clearest days and the 20 percent most 
impaired in tables 8-1 and 8-2 of its submittal, respectively, and both 
Class I areas are projected to remain below the URP based on VISTAS 
modeling. However, as outlined throughout this document, because West 
Virginia's SIP submission did not meet the required statutory or 
regulatory requirements, the EPA is proposing to disapprove the SIP in 
its entirety, and is not proposing to approve these regulatory 
requirements. Additionally, per 40 CFR 51.308(f)(3)(iv), the EPA must 
evaluate the demonstrations the State developed pursuant to 40 CFR 
51.308(f)(2) to determine whether the State's reasonable progress goals 
for visibility improvement provide for reasonable progress towards 
natural visibility conditions. As previously explained in section IV.E. 
of this document we are proposing to disapprove West Virginia's long-
term strategy for failing to meet the requirements of 40 CFR 
51.308(f)(2). Therefore, we also propose to disapprove West Virginia's 
reasonable progress goals under 40 CFR 51.308(f)(3) because compliance 
with that

[[Page 6952]]

requirement is dependent on compliance with 40 CFR 51.308(f)(2).\125\
---------------------------------------------------------------------------

    \125\ See CAA 169A(b)(2), 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------

H. Monitoring Strategy and Other Implementation Plan Requirements

    Section 51.308(f)(6) specifies that each comprehensive revision of 
a State's Regional Haze SIP must contain or provide for certain 
elements, including monitoring strategies, emissions inventories, and 
any reporting, recordkeeping and other measures needed to assess and 
report on visibility. A main requirement of this section is for States 
with Class I Areas to submit monitoring strategies for measuring, 
characterizing, and reporting on visibility impairment. Section 
51.308(f)(6)(ii) requires SIPs to provide for procedures by which 
monitoring data and other information are used in determining the 
contribution of emissions from within the State to Regional Haze 
visibility impairment at mandatory Class I Federal Areas both within 
and outside the State. Section 51.308(f)(6)(iii) requires SIPs to 
provide procedures by which monitoring data and other information are 
used in determining the contribution of emissions from within the State 
to Regional Haze visibility impairment at mandatory Class I Federal 
Areas in other States. Section 51.308(f)(6)(iv) requires the SIP to 
provide for the reporting of all visibility monitoring data to the 
Administrator at least annually for each Class I area in the State. 
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide 
inventory of emissions of pollutants that are reasonably anticipated to 
cause or contribute to visibility impairment, including emissions for 
the most recent year for which data are available. Section 
51.308(f)(6)(v) also requires States to include estimates of future 
projected emissions and include a commitment to update the inventory 
periodically.
    With respect to 40 CFR 51.308(f)(6)(i), WV DEP stated that the 
existing IMPROVE monitors for the State's Class I areas are sufficient 
for the purposes of this SIP revision. With respect to 40 CFR 
51.308(f)(6)(ii), WV DEP stated that it will use data from these 
IMPROVE monitors for future haze plans and progress reports. 40 CFR 
51.308(f)(6)(iii) does not apply to West Virginia, as this provision 
only applies to States with no Class I areas. With respect to 40 CFR 
51.308(f)(6)(iv), the NPS manages and oversees the IMPROVE monitoring 
network and reviews, verifies, and validates IMPROVE data before its 
submission to the EPA's Air Quality System (AQS). With respect to 40 
CFR 51.308(f)(6)(v), WV DEP provided a baseline emissions inventories, 
current emissions data, and 2028 future emissions projections for 
visibility-impairing pollutants for source categories and specific 
point sources, and committed to update the inventory periodically.\126\ 
With respect to 40 CFR 51.308(f)(6)(vi), West Virginia affirmed that 
there are no elements, including reporting, recordkeeping, or other 
measures, necessary to address and report on visibility for West 
Virginia's Class I areas or Class I areas outside the State that are 
affected by sources in West Virginia.
---------------------------------------------------------------------------

    \126\ See Section 4, ``Types of Emissions Impacting Visibility 
Impairment in West Virginia Class I Areas'', Section 7.2.4, ``EPA 
Inventories'', and Section 13, ``Progress Report'' of WV DEP's 
Regional Haze SIP Submittal for the 2nd Planning Period.
---------------------------------------------------------------------------

    However, as outlined throughout this document, because West 
Virginia's SIP submission did not meet the required statutory or 
regulatory requirements, the EPA is proposing to disapprove the SIP in 
its entirety and is not proposing to approve these regulatory 
requirements.

I. Requirements for Periodic Reports Describing Progress Towards the 
Reasonable Progress Goals

    Section 51.308(f)(5) requires that periodic comprehensive revisions 
of States' Regional Haze plans also address the progress report 
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these 
requirements is to evaluate progress towards the applicable RPGs for 
each Class I Area within the State and each Class I Area outside the 
State that may be affected by emissions from within that State. 
Sections 51.308(g)(1) and (2) apply to all States and require a 
description of the status of implementation of all measures included in 
a State's first implementation period Regional Haze plan and a summary 
of the emission reductions achieved through implementation of those 
measures. Section 51.308(g)(3) applies only to States with Class I 
Areas within their borders and requires such States to assess current 
visibility conditions, changes in visibility relative to baseline 
(2000-2004) visibility conditions, and changes in visibility conditions 
relative to the period addressed in the first implementation period 
progress report.
    Section 51.308(g)(4) applies to all States and requires an analysis 
tracking changes in emissions of pollutants contributing to visibility 
impairment from all sources and sectors since the period addressed by 
the first implementation period progress report. This provision further 
specifies the year or years through which the analysis must extend 
depending on the type of source and the platform through which its 
emission information is reported. Finally, 40 CFR 51.308(g)(5), which 
also applies to all States, requires an assessment of any significant 
changes in anthropogenic emissions within or outside the State that 
have occurred since the period addressed by the first implementation 
period progress report, including whether such changes were anticipated 
and whether they have limited or impeded expected progress towards 
reducing emissions and improving visibility.
    With respect to the 40 CFR 51.308(g)(1) through (5) requirements, 
WV DEP included a description of the status of the implementation of 
all measures included in West Virginia's first implementation period 
Regional Haze Plan, a summary of the emissions reductions achieved from 
these measures, an analysis tracking changes in emissions, and an 
assessment of significant changes in emissions. However, as outlined 
throughout this document, because West Virginia's SIP submission did 
not meet the required statutory or regulatory requirements, the EPA is 
proposing to disapprove the SIP in its entirety and is not proposing to 
approve these regulatory requirements.

J. Requirements for State and Federal Land Manager Coordination

    Section 169A(d) of the CAA requires States to consult with FLMs 
before holding the public hearing on a proposed Regional Haze SIP, and 
to include ``a summary of the FLMs' conclusions and recommendations in 
the notice to the public.''
    Section 51.308(i)(2)'s FLM consultation provision requires a State 
to provide FLMs with an opportunity for consultation that is early 
enough in the State's policy analyses of its emission reduction 
obligation so that information and recommendations provided by the FLMs 
can meaningfully inform the State's decisions on its long-term 
strategy. If the consultation has taken place at least 120 days before 
a public hearing or public comment period, the opportunity for 
consultation will be deemed early enough. Regardless, the opportunity 
for consultation must be provided at least sixty days before a public 
hearing or public comment period at the State level. Section 
51.308(i)(2) also provides two substantive topics on which FLMs must be 
provided an opportunity to discuss with States: assessment of 
visibility impairment in any Class I Area

[[Page 6953]]

and recommendations on the development and implementation of strategies 
to address visibility impairment. Section 51.308(i)(3) requires States, 
in developing their implementation plans, to include a description of 
how they addressed FLMs' comments.
    WV DEP included records of its consultation with various FLMs. The 
NPS submitted comments to WV DEP on October 19, 2021, the USFS 
submitted comments on October 26, 2021, and the FWS did not submit 
comments. WV DEP included the FLM comments and its responses in its 
submittal.\127\
---------------------------------------------------------------------------

    \127\ Appendix H-2 ``Federal Land Manager Comments'' in WV DEP's 
Regional Haze SIP Submittal for the 2nd Planning Period.
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    While WV DEP did take administrative steps to conduct consultation, 
if the EPA finalizes the disapproval of the SIP, in the process of 
correcting the deficiencies outlined above with respect to the RHR and 
statutory requirements, the State (or the EPA in the case of an 
eventual FIP) will again be required to satisfy the FLM consultation 
requirements under 40 CFR 51.308(i)(2).\128\ However, as discussed 
throughout this document, because WV DEP's SIP submission did not meet 
the required statutory or regulatory requirements, the EPA is proposing 
to disapprove the SIP in its entirety, and is not proposing to approve 
these regulatory requirements.
---------------------------------------------------------------------------

    \128\ In addition, if the EPA finalizes our proposed disapproval 
of WV DEP's SIP submittal, the State (or the EPA in the potential 
case of a FIP) will be required to again complete the FLM 
consultation requirements under 40 CFR 51.308(i).
---------------------------------------------------------------------------

V. Environmental Justice

    WV DEP included Appendix I, ``Environmental Justice,'' to its SIP 
submittal. Appendix I consists entirely of a 2021 Informal Resolution 
between WV DEP and the EPA resolving a claim under Title VI of the 
Civil Rights Act of 1964 related to alleged discrimination against 
African American descendants of persons buried in the Boyd Carter 
Memorial Cemetery. Appendix I does not contain any analysis or 
evaluation of impacts of this SIP on communities with environmental 
justice concerns. Neither the CAA nor the applicable implementing 
regulations either prohibit or require such an evaluation. The EPA did 
not conduct an environmental justice (EJ) screening analysis for this 
SIP submittal.

VI. Proposed Action

    The EPA is proposing to disapprove the WV DEP SIP submission 
relating to Regional Haze for the second planning period received on 
August 12, 2022, because the State's SIP submission fails to meet both 
the regulatory requirements of the Regional Haze Rule and the statutory 
requirements of the Clean Air Act. Specifically, because WV DEP failed 
to conduct the proper analyses to determine what measures are necessary 
for reasonable progress and did not adequately consider the four 
statutory factors, thereby not including a sufficiently robust and 
adequately justified long-term strategy that includes measures 
necessary for reasonable progress in its second planning period SIP 
submission. West Virginia's SIP submission does not contain the 
emission limits, schedules of compliance, and other measures as may be 
necessary to make reasonable progress toward meeting the national 
visibility goal. Therefore, the SIP submission does not meet the 
regional haze requirements, nor requirements of the CAA. Specifically, 
as described in detail in this NPRM, the SIP submission does not meet 
the statutory requirements in CAA section 169A(b)(2)(B) to contain a 
long-term strategy for making reasonable progress; the CAA section 
169A(g)(1) requirement to consider the four factors in determining 
reasonable progress; and the CAA section 169A(b)(2) requirement for the 
SIP to contain the emissions limits, schedules of compliance and other 
measures as may be necessary to make reasonable progress toward meeting 
the national goal. In addition, the insufficiently robust and 
inadequately justified source selection, evaluation of emissions 
measures considering the four factors, related inadequate supporting 
documentation, and the failure to discuss or adequately evaluate 
existing measures in the absence of any new measures results in the WV 
DEP SIP submission not meeting the regulatory requirements in 40 CFR 
51.308(f)(2).
    The EPA is not proposing a FIP at this time. If the EPA finalizes 
the disapproval, that will start a two-year clock for the EPA to 
propose and finalize a FIP. We are processing this as a proposed action 
because we are soliciting comments on this proposed action. Disapproval 
does not start a mandatory sanctions clock for West Virginia. Final 
rule will occur after consideration of any comments.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action proposes to disapprove State law as not meeting Federal 
requirements and does not impose additional requirements. For that 
reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 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); and
     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 Clean Air Act;
     Executive Order 12898 (Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to 
identify and address ``disproportionately high and adverse human health 
or environmental effects'' of their actions on minority populations and 
low-income populations to the greatest extent practicable and permitted 
by law. The EPA defines environmental justice (EJ) as ``the fair 
treatment and meaningful involvement of all people regardless of race, 
color, national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the

[[Page 6954]]

negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' West Virginia did not 
evaluate EJ considerations as part of its SIP submittal; the CAA and 
applicable implementing regulations neither prohibit nor require such 
an evaluation. The EPA did not perform an EJ analysis and did not 
consider EJ in this action. Due to the nature of the action being taken 
here, this action is expected to have a neutral impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this action, and there is no information in the record 
inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.
     In addition, this action 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 the EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law. Thus, Executive 
Order 13175 does not apply to this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2025-01101 Filed 1-17-25; 8:45 am]
BILLING CODE 6560-50-P`