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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R03-OAR-2025-0174; FRL-12731-02-R3]</DEPDOC> <SUBJECT>Air Plan Approval; West Virginia; Regional Haze State Implementation Plan for the Second Implementation Period</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is approving the regional haze State implementation plan (SIP) revision submitted by West Virginia (West Virginia, WV, or the State) on August 12, 2022, to address applicable requirements under the Clean Air Act (CAA) and the EPA's Regional Haze Rule (RHR) for the regional haze program's second implementation period. The EPA is taking this action pursuant to the CAA. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on August 6, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> The EPA has established a docket for this action under Docket ID EPA-R03-OAR-2025-0174. All documents in the docket are listed on the <E T="03">www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through <E T="03">www.regulations.gov, o</E> r please contact the person identified in the <E T="02">For Further Information Contact</E> section for additional availability information. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Michael Gordon, U.S. Environmental Protection Agency, Region 3, 1600 John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103-2852, at (215) 814-2039, or by email at <E T="03">gordon.mike@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. What is being addressed in this document?</FP> <FP SOURCE="FP-2">II. Summary of the Proposed Action and the EPA's Reasons for This Final Action</FP> <FP SOURCE="FP-2">III. Public Comments Received on the Proposed Action and Responses to Comments</FP> <FP SOURCE="FP-2">IV. Final Action</FP> <FP SOURCE="FP-2">V. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. What is being addressed in this document?</HD> The EPA is approving West Virginia's regional haze SIP revision for the second implementation period, also referred to as the second planning period. As required by section 169A of the CAA, the RHR calls for State and Federal agencies to work together to improve visibility in 156 national parks and wilderness areas, known as mandatory Class I Federal areas. <SU>1</SU> <FTREF/> The rule requires the States, in coordination with the EPA, the National Park Service, the Fish and Wildlife Service, the Forest Service, 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 T="03">e.g.,</E> sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors ( <E T="03">e.g.,</E> sulfur dioxide (SO <E T="52">2</E> ), oxides of nitrogen (NO <E T="52">X</E> ), and, in some cases, volatile organic compounds (VOC) and ammonia (NH <E T="52">3</E> )). As discussed in our proposed rulemaking, in section III of this preamble, and in the accompanying Response to Comments (RTC) document, the EPA finds that West Virginia's regional haze SIP meets the statutory and regulatory requirements for the regional haze second planning period. <FTNT> <SU>1</SU>   <E T="03">See</E> 40 CFR part 81, subpart D. </FTNT> <HD SOURCE="HD1">II. Summary of the Proposed Action and the EPA's Reasons for This Final Action</HD> <HD SOURCE="HD2">A. Summary of the Proposed Action</HD> On August 12, 2022, the West Virginia Department of Environmental Protection (WV DEP) submitted a revision to the West Virginia SIP to address regional haze for the second planning period. WV DEP submitted this SIP revision to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 Code of Federal Regulations (CFR) 51.308. The EPA published a notice of proposed rulemaking (NPRM) proposing disapproval of West Virginia's August 12, 2022 SIP revision on January 21, 2025 (90 FR 6932). The public comment period closed on February 20, 2025. During that public notice-and-comment period, the EPA received six sets of comments. The full text of comments received on that NPRM are available via Docket ID Number EPA-R03-OAR-2024-0625 at <E T="03">www.regulations.gov.</E> The EPA subsequently published a new NPRM on April 18, 2025 (90 FR 16478), that withdrew the NPRM published on January 21, 2025 (90 FR 6932), commenced a public notice-and-comment period via Docket ID Number EPA-R03-OAR-2025-0174, and proposed to fully approve all elements of West Virginia's August 12, 2022 SIP revision as meeting the requirements of the CAA and RHR. In the April 18, 2025 NPRM, the EPA also announced a new policy that, where visibility conditions for a Class I Federal area impacted by a State are below the Unform Rate of Progress (URP) and the State has considered the four statutory factors, the State will have presumptively demonstrated reasonable progress for the second planning period for that area. The NPRM provided background on the requirements of the CAA and RHR, summarized West Virginia's regional haze SIP submittal, and explained the EPA's rationale for its proposed action. That background and rationale will not be restated in full here. <HD SOURCE="HD2">B. Reasons for This Final Action</HD> In this final action, the EPA is affirming that it is now the Agency's policy that, where visibility conditions for a Class I Federal area impacted by a State are below the URP and the State has considered the four statutory factors, the State will have presumptively demonstrated reasonable progress for the second planning period for that area. The EPA acknowledges that this final action reflects a change in policy as to how the URP should be used in the evaluation of regional haze second planning period SIPs but believes that this policy better aligns with the purpose of the statute and RHR: achieving “reasonable” progress towards natural visibility. As described in the April 18, 2025 (90 FR 16478) NPRM, the EPA has discretion and authority to change policy. In <E T="03">FCC</E> v. <E T="03">Fox Television Stations, Inc.,</E> the U.S. Supreme Court plainly stated that an agency is free to change a prior policy and “need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.” 566 U.S. 502, 515 (2009) (referencing Motor <E T="03">Vehicle Mfrs. Ass'n of United States, Inc.</E> v. <E T="03">State Farm Mut. Auto. Ins. Co.,</E> 463 U.S. 29 (1983)). <E T="03">See also Perez</E> v. <E T="03">Mortgage Bankers Assn.,</E> 135 S. Ct. 1199 (2015). The Class I areas impacted by emissions from WV are all below the URP, and WV's SIP submittal demonstrated that the state took into consideration the four reasonable progress factors listed in CAA 169A(g)(1)  <SU>2</SU> <FTREF/> with respect to an adequate number of emissions sources. Thus, the EPA has determined that WV's SIP revision is fully approvable under the Agency's new policy. Indeed, we think this policy better aligns with the statutory goal because it recognizes the considerable improvements in visibility impairment that have been made by a wide variety of State and Federal programs in recent decades. <SU>3</SU> <FTREF/> <FTNT> <SU>2</SU>  The four statutory factors required to be taken into consideration in determining reasonable progress are: the costs of compliance, the time necessary for compliance, and the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements. CAA section 169(g)(1). </FTNT> <FTNT> <SU>3</SU>  In addition, as we noted in the NPRM, certain commenters advocated for this policy during the public comment period for the NPRM that was published on April 18, 2025 (90 FR 16478), including Monongahela Power Company (Mon Power), the owner of two of the power plants selected for evaluation in the SIP submittal. <E T="03">See</E> Mon Power's February 20, 2025 comment letter. </FTNT> Understanding what the URP is and how it has been used in the context of the RHR is important to understanding the implications of the policy change the EPA is finalizing in this action. In developing the regulations required by CAA section 169A(b), the EPA established the concept of URP for each Class I area. The URP is determined by drawing a straight line from the measured 2000-2004 baseline conditions (in deciviews) for the 20% most impaired days at each Class I area to the estimated 20% most impaired days natural conditions (in deciviews) in 2064. From this calculation, a URP value can be calculated for each year between 2004 and 2064. For each Class I area, there is a regulatory requirement to compare the projected visibility impairment (represented by the reasonable progress goal, or “RPG”) at the end of each planning period to the URP ( <E T="03">e.g.,</E> in 2028 for the second planning period). <SU>4</SU> <FTREF/> 40 CFR 308(f)(1)(vi). ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 34k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━