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FEDERAL REGISTER
ENVIRONMENTAL PROTECTION AGENCY (EPA)
Approval and Promulgation of Air Quality Implementation Plans; Virginia; Redesignation Request, Maintenance Plan and Mobile Emissions Budget for the Richmond Ozone Nonattainment Area 62 FR 61237
DATE: November 17, 1997
SUMMARY: EPA is approving the redesignation request and two State Implementation Plan (SIP) revisions submitted by the Commonwealth of Virginia. On July 26, 1996, the Commonwealth of Virginia's Department of Environmental Quality submitted a maintenance plan as a revision to the SIP and a request to redesignate the Richmond moderate ozone nonattainment area from nonattainment to attainment. EPA's action is based upon the Commonwealth's submittal satisfying all five criteria for redesignation in the Clean Air Act (the Act), including the fact that the Richmond area has more than three years of complete, quality-assured ambient air monitoring data which demonstrates that the 1-hour.12 part per million (ppm) National Ambient Air Quality Standard (NAAQS) for ozone has been attained. The Richmond area has continued to attain the standard while its redesignation request was pending before the Agency. On July 30, 1996, the Commonwealth submitted another revision to the SIP modifying the mobile source emission budgets in the Richmond area maintenance plan in support of the area's transportation plans for the period after the year 2015. EPA is redesignating the Richmond ozone nonattainment area from nonattainment to attainment and approving the maintenance plan and mobile source emissions budget as revisions to the Virginia SIP. EFFECTIVE DATE: This final rule is effective on December 17, 1997. ADDRESSES: Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air, Radiation, and Toxics Division, U.S. Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219. FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, Ozone/Carbon Monoxide and Mobile Sources Section at (215) 566-2092. Questions may also be addressed via e-mail, at the following address: Gaffney.Kristeen@epamail.epa.gov SUPPLEMENTARY INFORMATION: I. Background On June 13, 1997, EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia (62 FR 38856) The NPR proposed approval of the redesignation request, maintenance plan and mobile source emissions budget for the Richmond moderate ozone nonattainment area. The redesignation request and maintenance plan were submitted as SIP revisions by the Commonwealth of Virginia on July 26, 1996. The mobile source emissions budget was submitted as a SIP revision on July 30, 1996. The SIP revisions establish a maintenance plan for Richmond, including contingency measures, which provides for continued attainment of the ozone NAAQS until the year 2007, and adjust the mobile source emissions budget established in the maintenance plan for Richmond to support the area's long-range transportation plans in the horizon years 2015 and beyond. This action is being taken under sections 107 and 110 of the Clean Air Act. On July 18, 1997, EPA promulgated a new NAAQS for ozone, replacing the 1-hour .12 ppm standard with an 8-hour 0.08 ppm standard (62 FR 38856). EPA is in the process of developing guidance and proposed rules to implement the new ozone standard based on a Presidential Directive signed on July 16, 1997, and published in the Federal Register on July 18, 1997. Today's action is a redesignation to attainment for the Richmond area of the 1-hour .12 ppm ozone standard and approval of the maintenance plan and mobile source emissions budget as they relate to the 1-hour standard only. EPA's decision to redesignate Richmond to attainment and approve the related SIP revisions is based on the requirements of section 107 of the Act and existing EPA policy and guidance as they pertain to the 1-hour standard. Today's decision does not in any way make a determination regarding Richmond's attainment status for the newly promulgated 8-hour .08 ppm ozone standard. Decisions regarding the attainment status of areas for the new 8-hour .08 ppm ozone NAAQS will be conducted by EPA at a later date. II. Outstanding Requirements The June 13, 1997 NPR proposed approval of the redesignation to attainment of the Richmond area based on certain contingencies, as discussed in the NPR. Specifically, it was necessary for EPA to complete rulemaking on several outstanding Clean Air Act requirements for the Richmond area before final rulemaking on the redesignation request could be completed. These requirements, as outlined in the proposed rulemaking, are: (1) the determination of nonapplicability of certain requirements of the Act including reasonable further progress (RFP) and the attainment demonstration; (2) final approval of the proposed nitrogen oxides (NOX) reasonably available control technology (RACT) waiver for the Richmond area; and (3) SIP approval of 12 source-specific volatile organic compound (VOC) reasonably available control technology (RACT) SIP revisions. Final EPA action has been completed for each of these requirements, as discussed below, and EPA finds that all the applicable requirements of the Act necessary for redesignations have been met for the Richmond area. 1. EPA's determination of nonapplicability of certain requirements of the Act for the Richmond area, specifically section 182(b)(1) (RFP, including the 15% plan, and attainment demonstration) and section 172(c)(9) (contingency measures) was proposed on June 13, 1997. The final determination was published in the Federal Register on October 6, 1997 (62 FR 52029). 2. EPA's final rulemaking to waive the NOX RACT requirements of section 182(f) of the Act in the Richmond area was published in the Federal Register on July 21, 1997 (62 FR 38922). 3. EPA published final approval of 12 source specific VOC RACT SIP submittals in the Federal Register on October 14, 1997 (62 FR 53234 and 62 FR 53242). The approval of these 12 source specific VOC RACT approvals fulfills the section 182(a)(2) and 182(b)(2) requirements of the Act to impose RACT on major sources of VOCs in the nonattainment area. III. Response to Public Comments Two letters were received submitting public comments on the NPR. One letter of support for EPA's proposed action to redesignate Richmond was received from Virginia Power (July 14, 1997). The second letter was received from the New York State Department of Environmental Conservation (NYSDEC), which submitted adverse comments regarding EPA's proposed action on the redesignation request and maintenance plan. Below are EPA's responses to the comments received in NYSDEC's letter. Comment #1 NYSDEC disagrees with EPA's statement in the NPR that the Richmond area has met all relevant requirements of the Act that were due as of July 26, 1996, the date Virginia submitted its redesignation request. Specifically, NYSDEC states that the Commonwealth of Virginia missed the "November 15, 1995" statutory deadline for implementing the NOX RACT requirements of the Act and continues to be delinquent. \1\ It was noted that the Commonwealth of Virginia responded to EPA's July 8, 1994 finding of failure to submit a NOX RACT SIP for the Richmond area with a petition for an exemption from the NOX RACT requirement submitted on December 18, 1995. NYSDEC states that this December 18, 1995 petition was well after the mandated date of November 15, 1993 for submittal of a NOX RACT SIP and after the mandatory implementation date. NYSDEC concludes that "[t]herefore, not implementing NOX RACT in the Richmond area was not an option. " NYSDEC states that it is not a relevant factor that Richmond is now attaining the ozone NAAQS because the Richmond area has avoided implementing the NOX RACT requirements of the Act. NYSDEC objects to the proposed approval of the redesignation request on the grounds that the area failed to implement RACT on major sources of NOX. ------------------------------------------------------------------- \1\ Actually, section 182(b)(2) of the Act specifies that RACT is to be implemented not later than May 15, 1995. The discrepancy in dates does not substantively affect the commenters argument. ------------------------------------------------------------------- Response #1 According to section 107(d)(3)(E) of the Act, five requirements must be met in order for EPA to redesignate an area from nonattainment to attainment: 1. The area must have attained the applicable NAAQS; 2. The area must have met all applicable requirements under section 110 and part D of the Act; 3. The area must have a fully approved SIP under section 110(k) of the Act; 4. The air quality improvement must be permanent and enforceable; and 5. The area must have a fully approved maintenance plan pursuant to section 175A of the Act. The commenter asserts that the obligation to meet all applicable requirements includes the NOX RACT requirements of part D, section 182(f) of the Act for controls on major sources of NOX in the Richmond area. The commenter claims that Virginia's failure to implement NOX RACT controls by November 15, 1995 disqualifies it from redesignation. This argument has been invalidated because EPA, subsequent to the proposed approval of the redesignation, has granted Virginia's request under section 182(f) for an exemption from this requirement. Therefore, the NOX RACT requirement is no longer applicable to the Richmond area. On December 18, 1995, the Commonwealth submitted a petition under section 182(f) of the Act to exempt the Richmond ozone nonattainment area from the NOX RACT requirement. The exemption petition was based on ambient air monitoring data from 1993-1995 which demonstrated attainment of the 1-hour .12 ppm ozone standard. EPA proposed approval of the NOX RACT exemption petition for the Richmond area in the Federal Register on March 19, 1996 (61 FR 11170). Moreover, in a separate Federal Register notice published on the same day, EPA made an interim final determination that stayed and deferred the implementation of sanctions which had started for this area by issuance of a July 8, 1994 EPA findings letter because the Commonwealth, contingent upon continued attainment of the ozone NAAQS, had corrected the deficiency of failing to submit the NOX RACT rules (61 FR 11162). In conjunction with EPA's proposed approval of the NOX waiver petition, on September 6, 1996, the Commonwealth withdrew from further EPA review the May 16, 1995 and July 17, 1995 draft NOX RACT control SIPs submitted to EPA. EPA's proposed approval of the redesignation request and maintenance plan for Richmond was based, in part, on EPA's proposed approval of the NOX exemption petition. As was stated in the July 13, 1997 NPR, "although EPA is proposing approval of the Richmond redesignation request in today's action, EPA must complete final rulemaking action on the NOX waiver before the area can be finally redesignated. On July 21, 1997, EPA published final approval of an exemption from the NOX RACT requirement for the Richmond area contingent upon air quality monitoring that demonstrates continued attainment of the ozone NAAQS (62 FR 38922). This final approval waives NOX RACT as an applicable requirement in the Richmond area for as long as the area attains the 1-hour ozone standard. The commenter's assertion that Virginia missed a May 15, 1995 statutory deadline for implementing the NOX RACT requirements in Richmond is irrelevant in light of EPA's final approval of the NOX RACT exemption petition. NOX RACT was not implemented in the Richmond area because the area had attained the standard, without needing the additional reductions of NOX. EPA has approved the exemption of NOX RACT for the Richmond area, and therefore, the area meets the section 182(f) requirements of the Act and has a fully-approved SIP that meets the requirements of section 107 of the Act for the purposes of redesignating the area to attainment.
EPA has not required NOX RACT SIP revisions in approving redesignation requests in a number of other areas where it has granted section 182(f) NOX waivers at the time of or before the redesignation of an area. See 61 FR 20462-20468 (May 7, 1996); 59 FR 49361 (September 28, 1994); and 60 FR 12459 (March 7, 1995). Please refer to these rulemakings for additional explanation of EPA's interpretation of the NOX RACT requirements for areas attaining the ozone standard. Comment #2 NYSDEC also disagrees with EPA's determination that the Commonwealth of Virginia has a fully approved SIP for the Richmond area under section 110(a)(2). Section 110(a)(2)(D) requires SIPs to contain adequate provisions to assure that the emissions activity of one state does not adversely affect another state from attaining the ozone NAAQS. NYSDEC states that EPA regional oxidant modeling and the regional modeling done through the Ozone Transport Assessment Group (OTAG) \2\ indicate that emissions of NOX from stationary sources upwind of the Ozone Transport Region contribute to increased ozone levels in the Northeast, including New York State. ------------------------------------------------------------------- \2\ OTAG was established approximately 2 years ago to undertake an assessment of the regional transport problem and develop solutions. OTAG was a collaborative process conducted by the affected States and also included representatives from EPA, environmental groups, industry and the public. ------------------------------------------------------------------- Response #2 As stated above, for an area to be redesignated to attainment it must meet all the requirements applicable to the area under section 110. Section 110(a)(2)(D) requires that the SIP contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will contribute significantly to nonattainment in or interfere with maintenance by any other state with respect to any NAAQS. This provision applies by its terms to all SIPs for each pollutant covered by a NAAQS and for all areas, regardless of their attainment designation. In other words, this provision applies to both nonattainment and attainment areas. EPA's decision to provide the NOX RACT waiver under section 182(f) for any area or redesignate any area to attainment would not shield that state from the obligation, in response to a SIP call under section 110 by EPA, for NOX emission reductions, if evidence such as photochemical grid modeling shows that NOX emissions contribute significantly to downwind nonattainment or maintenance problems in another state. On October 10, 1997, Administrator Browner signed a Notice of Proposed Rulemaking to issue a SIP call under section 110(k)(5) to reduce NOX emissions which contribute to regional transport of ozone in the Northeastern portion of the country. This Notice of Proposed Rulemaking will be published shortly in the Federal Register. This proposed SIP call is being issued in accordance with section 110(k)(5) and 110(a)(2)(D) of the Act. The SIP call, as proposed, will require 22 states (including the Commonwealth of Virginia) and the District of Columbia to submit, as SIP revisions, control measures to reduce statewide NOX emissions to ensure that emission reductions are achieved as needed to comply with section 110(a)(2)(D)'s provisions on interstate transport of ozone. This action reflects the technical work done by OTAG and other pertinent regional and urban scale analyses of ozone transport. The proposed rulemaking establishes statewide emissions budgets that the 22 states and the District of Columbia need to achieve to reduce the boundary condition concentrations of ozone and its precursors within a specified timeframe and require the submission of SIP controls to achieve those reductions. EPA is taking comment on this proposed rulemaking for 120 days. Final action on the section 110 SIP call that takes into consideration public comments received on the proposal is not expected to occur until 1998. Redesignating the Richmond area to attainment under section 107 of the Act will in no way relieve the Commonwealth of Virginia from any future obligations to secure additional NOX reductions in the Richmond area which may result from any final action EPA takes under section 110(a)(2)(D) and 110(k)(5). EPA has interpreted section 107(d)(3)(E) to permit the Agency, when reviewing requests for redesignation, to rely on a prior SIP approval as establishing compliance with section 110 of the Act. EPA approved the Virginia SIP as meeting the requirements of section 110 [45 FR 55180, August 19, 1980; 45 FR 66789, October 8, 1980; and 45 FR 85748, December 30, 1980]. A memorandum to EPA Regional Offices from John Calcagni, dated September 4, l992, describes procedures that EPA regions should use to evaluate requests to redesignate areas to attainment status. The memo states on page 3: An area cannot be redesignated if a required element of its plan is the subject of a disapproval; a finding of failure to submit or to implement the SIP; or partial, conditional, or limited approval. However, this does not mean that earlier issues with regard to the SIP will be reopened. Regions should not reconsider those things that have already been approved and for which the Clean Air Act Amendments did not alter what is required. Prior to the 1990 Amendments, the predecessor to section 110(a)(2)(D) provided that SIPs must contain provisions "prohibiting any stationary source within the State from emitting any air pollutant in amounts which will: (1) prevent attainment or maintenance by any other State of any such national primary or secondary ambient air quality standard." Section 110(a)(2)(E). The 1990 amendments to the Act clarified the section by providing that SIPS must contain provisions prohibiting emissions in amounts that "contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard." Section 10(a)(2)(D)(i)(I). This change codified the interpretation EPA had long given to the section. See Air Pollution Control District v. EPA, 739 F.2d 1071 (6th Cir. 1984). In 1992, EPA reviewed the amended section 110(a)(2)(D) and concluded that the 1990 Amendments merely incorporated the Agency's longstanding interpretation. See General Preamble, 57 FR 13556. Section 110(n)(1) also states that provisions in SIPs that were approved before the 1990 Amendments shall remain in effect unless the Amendments require changes to the provisions. Thus, EPA is not obligated to reexamine the SIP provision previously approved under section 110 in the context of a redesignation rulemaking. Based on its technical assessment that the issue of ozone transport should be addressed regionally, EPA is implementing section 110(a)(2)(D) by exercising its authority to issue SIP calls on a regional basis. EPA has not issued a final rulemaking finding that the SIP applicable to Richmond does not meet the requirements of section 110(a)(2)(D) of the Act. Comment #3 NYSDEC also submitted several comments that were pertinent to EPA's proposed rulemaking to approve a NOX RACT exemption for the Richmond area [March 19, 1996, 61 FR 11170]. NYSDEC believes that the NOX RACT exemption request has been inappropriately segregated from and does not address the section 110(a)(2)(D) requirements of the Act. Further NYSDEC states that any NOX exemption petition would also be invalid because section 110(a)(2)(D) prohibits granting an exemption from NOX RACT pursuant to section 182(f) of the Act where there is evidence that the exemption would interfere with attainment of a NAAQS in another state. Response #3 In the July 21, 1997 final rulemaking action on the NOX exemption petition, EPA responded to similar adverse comments received that section 110(a)(2)(D) prohibits granting exemptions pursuant to section 182(f) where there is evidence that granting of the exemption would interfere with attainment of the ozone NAAQS in downwind areas [62 FR 38925]. In EPA's final rulemaking approving the exemption, EPA made the determination that the section 110(a)(2)(D) and 182(f) provisions must be considered independently and would not shield a state from complying with a SIP call issued by EPA pursuant to section 110 of the Act. EPA's rationale for making this determination can be found in the July 21, 1997 final approval of the NOX exemption petition for the Richmond area and will not be restated here. IV. Final Action EPA has evaluated the Commonwealth's redesignation request for Richmond for consistency with the Act, EPA regulations, and EPA policy. EPA believes that the redesignation request and monitoring data demonstrate that this area has attained the 1-hour .12 ppm ozone standard. In addition, EPA has determined that the redesignation request meets the requirements of section 107(d)(3)(E) and the policy set forth in the General Preamble and policy memoranda for area redesignations, and today is approving Virginia's redesignation request for Richmond, submitted on July 26, 1996. Furthermore, EPA is approving into the Virginia SIP the required maintenance plan, because it meets the requirements of section 175A of the Act, and the mobile source emissions budget for the Richmond area. Other specific requirements of redesignations and maintenance plans and the rationale for EPA's approval action were explained in the July 13, 1997 proposed rulemaking and will not be restated here. Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any state implementation plan. Each request for revision to the state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. V. Administrative Requirements A. Executive Order 12866 The Office of Management and Budget (OMB) has exempted this regulatory action from E.O. 12866 review. B. Regulatory Flexibility Act Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Redesignation of an area to attainment under section 107(d)(3)(E) of the Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. EPA certifies that the approval of the redesignation request will not have a significant economic impact on a substantial number of small entities. C. Unfunded Mandates Under Section 202 of the Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under Section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action. D. Submission to Congress and the General Accounting Office Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of the rule in today's Federal Register. This rule is not a "major rule" as defined by 5 U.S.C. 804(2). E. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of EPA's approval of the Richmond redesignation request, maintenance plan and mobile emissions budget must be filed in the United States Court of Appeals for the appropriate circuit by January 16, 1998. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirement. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Dated: November 5, 1997. W. Michael McCabe, Regional Administrator, Region III. Chapter I, title 40, of the Code of Federal Regulations is amended as follows: PART 52--[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. Subpart VV--Virginia 2. Section 52.2420 is amended by adding paragraph (c)(119) to read as follows: Sec. 52.2420 Identification of plan. * * * * * (c) * * * (119) The ten year ozone maintenance plan for the Richmond, Virginia ozone nonattainment area submitted by the Virginia Department of Environmental Quality on July 26, 1996: (i) Incorporation by reference. (A) Letter of July 26, 1996 from the Virginia Department of Environmental Quality transmitting the 10 year ozone maintenance plan for the Richmond moderate ozone nonattainment area. (B) The ten year ozone maintenance plan including emission projections, control measures to maintain attainment and contingency measures for the Richmond ozone nonattainment area adopted on July 26, 1996. (ii) Additional material. (A) Remainder of July 26, 1996 Commonwealth submittal pertaining to the redesignation request and maintenance plan referenced in paragraph (c)(119)(i) of this section. 3. Section 52.2424 is amended by designating the existing text as paragraph (a) and adding paragraph () to read as follows: Sec. 52.2424 Motor vehicle emissions budgets. * * * * * (b) Motor vehicle emissions budget for the Richmond maintenance area adjusting the mobile emissions budget contained in the maintenance plan for the horizon years 2015 and beyond adopted on July 30, 1996 and submitted by the Virginia Department of Environmental Quality on July 30, 1996. PART 81--[AMENDED] 4. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401-7671. Subpart C--Section 107 Attainment Status Designations 5. In Sec. 81.347 the "Virginia-Ozone" table is amended by revising the entry for "Richmond Area" to read as follows:
Sec. 81.347 Virginia.
* * * * *
Virginia--Ozone
-------------------------------------------------------------------
Designation Classification Designated area
Date \1\ Type Date \1\ Type
----------------------------------------------------------------
* * * *
Richmond Area:
Charles City County 12/17/97 Attainment
(part).....................
Beginning at the intersection of
State Route 156 and the Henrico/
Charles City County Line,
proceeding south along State
Route 5/156 to the intersection
with State Route 106/156,
proceeding south along Route
106/156 to the intersection
with the Prince George/Charles
City County line, proceeding
west along the Prince George/
Charles City County line to the
intersection with the
Chesterfield/Charles City
County line, proceeding north
along the Chesterfield/Charles
City County line to the
intersection with the Henrico/
Charles City County line,
proceeding north along the
Henrico/Charles City County
line to State Route 156.
Chesterfield County, Colonial
Heights, Hanover County, Henrico
County, Hopewell, Richmond.
* * * *
* * *
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\1\ This date is November 15, 1990, unless otherwise noted.
[FR Doc. 97-30138 Filed 11-14-97; 8:45 am] BILLING CODE 6560-50-P |
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