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Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Rules and Regulations
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ppm,9 which is again, well below all three standards. The fact that the Air Quality Modeling TSD was performed to indicate whether the area will have problems attaining or maintaining the 2015 ozone NAAQS i.e., 0.070 ppm does not make the modeling less useful for determining whether the area will also meet the less stringent revoked 1997 standard i.e., 0.080 ppm.
The commenters assert that many groups have criticized EPAs transport modeling, alleging that the agency used improper emissions inventories, incorrect contribution thresholds, wrong modeling years, or that EPA has not accounted for local situations or reductions that occurred after the inventories were established. The commenters also allege that EPA
should not rely on its modeling because it have now been outlawed by multiple courts and fails to stand up to the recent court decisions, citing the Wisconsin v. EPA D.C. Circuit decision.10 EPA disagrees that the existence of criticisms of the agencys Air Quality Modeling TSD render it unreliable, and we also do not agree that anything in recent court decisions, including Wisconsin v. EPA, suggests that EPAs Air Quality Modeling TSD is technically flawed. We acknowledge that the source apportionment Air Quality Modeling TSD runs cited by the commenters have been at issue in various legal challenges to EPA actions, including the Wisconsin v. EPA case.
However, in that case, the only flaw in EPAs Air Quality Modeling TSD
identified by the D.C. Circuit was the fact that its analytic year did not align with the attainment date found in CAA
section 181.11 Contrary to the commenters suggestion, the D.C. Circuit upheld EPAs Air Quality Modeling TSD with respect to the many technical challenges raised by petitioners in the Wisconsin case.12 We therefore think reliance on the interstate transport Air Quality Modeling TSD as supplemental support for showing that the Huntington Area will maintain the 1997 8-hour ozone NAAQS through the end of its 20th year maintenance period is appropriate.
9 The June 29, 2020 NPRM for this action recited 0.060 ppm as the Projected 2023 design value in Table 2Huntington Area 8-hour Ozone Design Value in Parts Per Million. Through this final action we clarify that the correct Projected 2023 design value that was included in the States submission, is 0.058 ppm. The inclusion of the slightly higher but incorrect figure in the NPRM is a harmless error that does not alter EPAs proposal to approve this LMP.
10 Wisconsin, 938 F.3d 303 D.C. Cir. 2019.
11 Wisconsin, 938 F.3d at 313.
12 Wisconsin, 938 F.3d at 323331.

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Comment 3: The commenter asserts that EPA should disapprove this maintenance plan because EPA should not allow states to rely on emission programs such as the Cross-State Air Pollution rule CSAPR to demonstrate maintenance for the 1997 ozone NAAQS. The commenter alleges that the CSAP and CSAP Update and CSAP
Close-out rules were vacated entirely by multiple courts and are now illegal programs providing no legally enforceable emission reductions to any states formerly covered by the rules.
The commenter also asserts that nothing restricts big coal and gas power plants from emitting way beyond there sic restricted amounts. The commenter does allow that If EPA can show that continued maintenance without these rules is possible for the next 10 years then that would be OK but as the plan stands it relies on these reductions and must be disapproved.
Response 3: The commenter has misapprehended the factual circumstances regarding these interstate transport rules. Every rule cited by the commenter that achieves emission reductions from electric generating units EGUs or power plantsi.e., the CrossState Air Pollution Rule and the CSAPR
Updateremains in place and continues to ensure emission reductions of nitrogen oxides NOX and sulfur dioxide SO2. CSAPR began implementation in 2015 after it was largely upheld by the Supreme Court and the CSAPR Update began implementation in 2017. The latter rule was remanded to EPA to address the analytic year issues discussed in the prior comment and response, but the rule remains fully in effect. The commenter is correct that the D.C.
Circuit vacated the CSAPR close-out, but we note that that rule was only a determination that no further emission reductions were required to address interstate transport obligations for the 2008 ozone NAAQS; the rule did not itself establish any emission reductions.
We therefore disagree that the legal status of these rules presents any obstacle to EPAs approval of West Virginias submission.
IV. Final Action EPA is approving the 1997 8-hour ozone NAAQS limited maintenance plan for the Huntington Area, comprising Cabell and Wayne Counties as a revision to the West Virginia SIP.

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V. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations.
42 U.S.C. 7410k; 40 CFR 52.02a.
Thus, in reviewing SIP submissions, EPAs role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 58 FR 51735, October 4, 1993 and 13563 76 FR 3821, January 21, 2011;
Is not an Executive Order 13771 82
FR 9339, February 2, 2017 regulatory action because it is not a significant regulatory action under Executive Order 12866;
Does not impose an information collection burden under the provisions of the Paperwork Reduction Act 44
U.S.C. 3501 et seq.;
Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act 5
U.S.C. 601 et seq.;
Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 Pub. L. 1044;
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 12d of the National Technology Transfer and Advancement Act of 1995 15 U.S.C. 272 note because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898
59 FR 7629, February 16, 1994.
In addition, this rule does not have tribal implications as specified by
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