Daily Rules, Proposed Rules, and Notices of the Federal Government
EPA previously proposed to approve a SIP revision by West Virginia reporting on progress made in the first implementation period towards meeting the reasonable progress goals for Class I areas in and outside West Virginia that are affected by emissions from West Virginia's sources.
States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the reasonable progress goals for each mandatory Class I area within the state and in each mandatory Class I area outside the state which may be affected by emissions from within the state.
On April 30, 2013, West Virginia submitted a SIP revision describing the progress made towards the reasonable progress goals of Class I areas in and outside West Virginia that are affected by emissions from West Virginia's sources, in accordance with requirements in the Regional Haze Rule.
The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. In the NPR, EPA proposed to approve the SIP as adequately addressing each element under 40 CFR 51.308(g). The seven elements and EPA's proposed conclusions in the NPR are briefly summarized below.
The provisions in 40 CFR 51.308(g) require progress report SIPs to include a description of the status of measures in the regional haze implementation plan; a summary of the emissions reductions achieved; an assessment of the visibility conditions for each Class
In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP revision, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. In its progress report SIP, West Virginia determined that its regional haze SIP is sufficient to enable it and nearby states to achieve the reasonable progress goals for Class I areas affected by West Virginia's sources. The State accordingly provided EPA with a negative declaration that further revision of the existing regional haze implementation plan was not needed at this time.
Decisions by the Courts regarding EPA rules addressing the interstate transport of pollutants have had a substantial impact on EPA's review of the regional haze SIPs of many states. In 2005, EPA issued regulations allowing states to rely on the Clean Air Interstate Rule (CAIR) to meet certain requirements of the Regional Haze Rule.
EPA finalized a limited approval and limited disapproval of West Virginia's regional haze SIP on March 23, 2012, 77 FR 16937, and issued a Federal Implementation Plan (FIP) shortly thereafter to address the deficiencies identified in our limited disapproval of West Virginia and other states' regional haze plans. 77 FR 33642 (June 7, 2012). In our FIP, we relied on CSAPR to meet certain regional haze requirements notwithstanding that it was stayed at the time. As we explained, the determination that CSAPR will provide for greater reasonable progress than BART is based on a forward looking projection of emissions and any year up until 2018 would have been an acceptable point of comparison.
Throughout the litigation described above, EPA has continued to implement CAIR. Thus, at the time that West Virginia submitted its progress report SIP revision, CAIR was in effect, and the State included an assessment of the emission reductions from the implementation of CAIR in its report. The progress report discussed the status of the litigation concerning CAIR and CSAPR, but because CSAPR was not at that time in effect, West Virginia did not take emissions reductions from CSAPR into account in assessing its regional haze implementation plan. For the same reason, in our NPR, EPA did not assess at that time the impact of CSAPR or our FIP on the ability of West Virginia and its neighbors to meet their reasonable progress goals.
The purpose of this supplemental proposal is to seek comment on the effect of the D.C. Circuit's October 23, 2014 order and the effect of the status of CAIR and CSAPR on our assessment of West Virginia's progress report SIP and its determination that its existing implementation plan need not be revised at this time.
Given the complex background summarized above, EPA is proposing to determine that West Virginia appropriately took CAIR into account in its progress report SIP in describing the status of the implementation of measures included in its regional haze SIP and in summarizing the emissions reductions achieved. CAIR was in effect during the 2008-2013 period addressed by West Virginia's progress report. EPA approved West Virginia's regulations implementing CAIR as part of the West Virginia SIP in 2009, 74 FR 38536 (August 4, 2009), and neither West Virginia nor EPA has taken any action to remove CAIR from the West Virginia
The State's progress report also demonstrated Class I areas in other states impacted by West Virginia sources were on track to meet their reasonable progress goals as discussed in the NPR. EPA's intention in requiring the progress reports pursuant to 40 CFR 51.308(g) was to ensure that emission management measures in the regional haze SIPs are being implemented on schedule and that visibility improvement appears to be consistent with the reasonable progress goals. 64 FR 35713, 35747 (July 1, 1999). As the D.C. Circuit only recently lifted the stay on CSAPR, CAIR was in effect in West Virginia through 2014, providing the emission reductions relied upon in West Virginia's regional haze SIP. Thus, West Virginia appropriately took into account CAIR reductions in assessing the implementation of measures in the regional haze SIP for the 2008-2013 timeframe, and EPA believes that it is appropriate to rely on CAIR emission reductions for purposes of assessing the adequacy of West Virginia's progress report demonstrating progress up to the end of 2014 as CAIR remained effective until that date, pursuant to 40 CFR 51.308(g) and (h).
In addition, EPA also believes reliance upon CAIR reductions to show West Virginia's progress towards meeting its RPGs from 2008-2013 is consistent with our prior actions. During the continued implementation of CAIR per the direction of the D.C. Circuit through October 2014, EPA has approved redesignations of areas to attainment of the 1997 PM
EPA's December 3, 2014 interim final rule sunsets CAIR compliance requirements on a schedule coordinated with the implementation of CSAPR compliance requirements. 79 FR at 71665. As noted above, EPA's June 7, 2012 FIP replaced West Virginia's reliance upon CAIR for regional haze requirements with reliance on CSAPR to meet those requirements for the long-term. Because CSAPR should result in greater emissions reductions of SO
At the present time, the requirements of CSAPR apply to sources in West Virginia under the terms of a FIP, because West Virginia to date has not incorporated the CSAPR requirements into its SIP. The Regional Haze Rule requires an assessment of whether the current “implementation plan” is sufficient to enable the states to meet all established reasonable progress goals. 40 CFR 51.308(g)(6). The term “implementation plan” is defined for purposes of the Regional Haze Rule to mean “any [SIP], [FIP], or Tribal Implementation Plan.” 40 CFR 51.301. EPA is, therefore, proposing to determine that we may consider measures in any issued FIP as well as those in a state's regional haze SIP in assessing the adequacy of the “existing implementation plan” under 40 CFR 51.308(g)(6) and (h). Because CSAPR will ensure the control of SO
We note that the Regional Haze Rule provides for periodic evaluation and assessment of a state's reasonable progress towards achieving the national goal of natural visibility conditions by 2064 for CAA section 169A(b). The regional haze regulations at 40 CFR 51.308 required states to submit initial SIPs in 2007 providing for reasonable progress towards the national goal for the first implementation period from 2008 through 2018. 40 CFR 51.308(b). Pursuant to 40 CFR 51.308(f), SIP revisions reassessing each state's reasonable progress towards the national goal are due every ten years after that time. For such subsequent regional haze SIPs, 40 CFR 51.308(f) requires each state to reassess its reasonable progress and all the elements of its regional haze SIP required by 40 CFR 51.308(d), taking into account improvements in monitors and control technology, assessing the state's actual progress and effectiveness of its long term strategy, and revising reasonable progress goals as necessary. 40 CFR 51.308(f)(1)-(3). Therefore, West Virginia has the opportunity to reassess its reasonable progress goals and the adequacy of its regional haze SIP, including its reliance upon CAIR and CSAPR for emission reductions from EGUs, when it prepares and submits its second regional haze SIP to cover the implementation period from 2018 through 2028. As discussed in the NPR and in West Virginia's progress report, emissions of SO
In summary, EPA proposes to approve West Virginia's progress report SIP revision submitted on April 30, 2013. EPA solicits comments on this supplemental proposal, but only with respect to the specific issues raised in this notice concerning our interpretation of the term “implementation plan” in the Regional Haze Rule, and our agreement with West Virginia's assessment that the current regional haze SIP for West Virginia in combination with our CSAPR FIP need not be revised at this time to achieve the established reasonable progress goals for West Virginia and other nearby states in light of the status of CAIR through 2014 and CSAPR starting in 2015. EPA is not reopening the comment period on any other aspect of the March 14, 2014 NPR as an adequate opportunity to comment on those issues has already been provided. The purpose of this supplemental proposal is limited to review of the West Virginia progress report in light of the Supreme Court's decision in
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this supplemental proposed rule pertaining to West Virginia's regional haze progress report does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.