Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the Charleston Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 4, 2006 (Volume 71, Number 86)]
[Proposed Rules]
[Page 26299-26310]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my06-28]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2005-0548; FRL-8165-4]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Redesignation of the Charleston Ozone Nonattainment Area
to Attainment and Approval of the Area's Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and a
State Implementation Plan (SIP) revision submitted by the State of West
Virginia. The West Virginia Department of Environmental Protection
(WVDEP) is requesting that the Charleston area be redesignated as
attainment for the 8-hour ozone national ambient air quality standard
(NAAQS). In conjunction with its redesignation request, the WVDEP
submitted a SIP revision consisting of a maintenance plan for the
Charleston area that provides for continued attainment of the 8-hour
ozone NAAQS for the next 12 years. EPA is proposing to make a
determination that the Charleston area has attained the 8-hour ozone
NAAQS based upon three years of complete, quality-assured ambient air
quality ozone monitoring data for 2002-2004. EPA's proposed approval of
the 8-hour ozone redesignation request is based on its determination
that the Charleston area has met the criteria for redesignation to
attainment specified in the Clean Air Act (CAA). EPA is providing
information on the status of its adequacy determination for the motor
vehicle emission budgets (MVEBs) that are identified in the maintenance
plan for the Charleston area for purposes of transportation conformity,
and is also proposing to approve those MVEBs. EPA is proposing approval
of the redesignation request and of the maintenance plan revision to
the West Virginia SIP in accordance with the requirements of the CAA.

DATES: Written comments must be received on or before June 5, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-0548 by one of the following methods:
A. Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
B. E-mail: morris.makeba@epa.gov.
C. Mail: EPA-R03-OAR-2005-0548, Makeba Morris, Chief, Air Quality
Planning Branch.

[[Page 26300]]

D. Mailcode 3AP21, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
E. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2005-0548. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.epa.gov/edocket, http://www.regulations.gov,
including any personal information provided, unless the comment includes
information claimed to be Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Do not
submit information that you consider to be CBI or otherwise protected
through http://www.regulations.gov or e-mail. The www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address
will be automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index,
some information is not publicly available, i.e., 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 either electronically in http://www.regulations.gov
or in hard copy during normal business hours at the
Air Protection Division, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the
State submittal are available at the West Virginia Department of
Environmental Protection, Division of Air Quality, 601 57th Street SE.,
Charleston, WV 25304.

FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at caprio.amy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. What Actions Are EPA Proposing To Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would be the Effect of These Actions?
VI. What Is EPA's Analysis of the State's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the Maintenance Plan for the Charleston Area Adequate
and Approvable?
VIII. Proposed Action
IX. Statutory and Executive Order Reviews

I. What Actions Are EPA Proposing To Take?

On November 30, 2005, WVDEP formally submitted a request to
redesignate the Charleston area from nonattainment to attainment of the
8-hour NAAQS for ozone. On November 30, 2005, West Virginia submitted a
maintenance plan for the Charleston area as a SIP revision, to ensure
continued attainment over the next 12 years. The Charleston area is
composed of Kanawha and Putnam Counties. It is currently designated as
a basic 8-hour ozone nonattainment area. EPA is proposing to determine
that the Charleston area has attained the 8-hour ozone NAAQS and that
it has met the requirements for redesignation pursuant to section
107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the
redesignation request to change the designation of the Charleston area
from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is
also proposing to approve the maintenance plan SIP revision for the
area, such approval being one of the CAA requirements for approval of a
redesignation request. The maintenance plan is designed to ensure
continued attainment in the Charleston area for the next 12 years.
Additionally, EPA is announcing its action on the adequacy process for
the MVEBs identified in the maintenance plan, and proposing to approve
the MVEBs identified for volatile organic compounds (VOC) and nitrogen
oxides (NO_X) for the Charleston area for transportation
conformity purposes. Concurrently, the State is requesting that EPA
approve the maintenance plan as meeting the requirements of CAA
175(A)(b) with respect to the 1-hour ozone maintenance plan update.

II. What Is the Background for These Proposed Actions?

A. General

Ground-level ozone is not emitted directly by sources. Rather,
emissions of NO_X and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NO_X and VOC
are referred to as precursors of ozone. The CAA establishes a process
for air quality management through the attainment and maintenance of
the NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. EPA designated, as
nonattainment, any area violating the 8-hour ozone NAAQS based on the
air quality data for the three years of 2001-2003. These were the most
recent three years of data at the time EPA designated 8-hour areas. The
Charleston area was designated as basic 8-hour ozone nonattainment
status in a Federal Register notice signed on April 25, 2004 and
published on April 30, 2004 (69 FR 23857). On June 15, 2005 (69 FR at
23396), the 1-hour ozone NAAQS was revoked in the Charleston area (as
well as most other areas of the country). See 40 CFR 50.9(b); 69 FR at
23396, April 30, 2004; and see 70 FR 44470, August 3, 2005.
The CAA, Title I, Part D, contains two sets of provisions--subpart
1 and subpart 2--that address planning and control requirements for
nonattainment areas. Subpart 1 (which EPA refers to as ``basic''
nonattainment) contains general, less prescriptive requirements for
nonattainment areas for any pollutant--including ozone--governed by an
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment)
provides more specific requirements for ozone nonattainment areas. Some
8-hour ozone nonattainment areas are subject only to the provisions of
subpart 1. Other areas are also subject to the provisions of subpart 2.
Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004,
an area was classified under subpart 2 based on its 8-hour ozone design
value (i.e., the 3-year average annual fourth-highest daily maximum 8-
hour average ozone concentration), if it had a 1-hour design value at
or above 0.121 ppm (the lowest 1-hour design value in the CAA for

[[Page 26301]]

subpart 2 requirements). All other areas are covered under subpart 1,
based upon their 8-hour design values. In 2004, the Charleston area was
designated a basic 8-hour ozone nonattainment area based upon air
quality monitoring data from 2001-2003, and is subject to the
requirements of subpart 1.
Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentration is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857, (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50. The ozone
monitoring data from the 3-year period of 2002-2004 indicates that the
Charleston area has a design value of 0.081 ppm. Therefore, the ambient
ozone data for the Charleston area indicates no violations of the 8-
hour ozone standard. Monitoring data for 2005 indicates continued
attainment of the 8-hour ozone standard.

B. The Charleston Area

The Charleston area consists of Kanawha and Putnam Counties. Prior
to its designation as an 8-hour ozone nonattainment area, the Charleston
area was a maintenance area for the 1-hour ozone nonattainment NAAQS.
On November 30, 2005, the WVDEP requested that the Charleston area
be redesignated to attainment for the 8-hour ozone standard. The
redesignation request included 3 years of complete, quality-assured
data for the period of 2002-2004, indicating that the 8-hour NAAQS for
ozone had been achieved in the Charleston area. The data satisfies the
CAA requirements when the 3-year average of the annual fourth-highest
daily maximum 8-hour average ozone concentration (commonly referred to
as the area's design value) is less than or equal to 0.08 ppm (i.e.,
0.084 ppm when rounding is considered). Under the CAA, a nonattainment
area may be redesignated if sufficient complete, quality-assured data
is available to determine that the area has attained the standard and
the area meets the other CAA redesignation requirements set forth in
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation providing that:
(1) EPA determines that the area has attained the applicable NAAQS;
(2) EPA has fully approved the applicable implementation plan for
the area under section 110(k);
(3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air pollutant
control regulations and other permanent and enforceable reductions;
(4) EPA has fully approved a maintenance plan for the area as
meeting the requirements of section 175A; and
(5) the state containing such area has met all requirements
applicable to the area under section 110 and Part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
? ``Ozone and Carbon Monoxide Design Value Calculations'',
Memorandum from Bill Laxton, June 18, 1990;
? ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
? ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
? ``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
? ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni, Director, Air Quality Management Division, October 28, 1992;
? ``Technical Support Documents (TSDs) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
? ``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On
or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17, 1993;
? Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
? ``Part D New Source Review (Part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
? ``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May 10,
1995.

IV. Why Is EPA Taking These Actions?

On November 30, 2005, the WVDEP requested redesignation of the
Charleston area to attainment for the 8-hour ozone standard. On
November 30, 2005, the WVDEP submitted a maintenance plan for the
Charleston area as a SIP revision, to assure continued attainment over
the next 12 years, until 2018. Concurrently, West Virginia is
requesting that EPA approve maintenance plan as meeting the
requirements of CAA 175A(b) with respect to the 1-hour ozone
maintenance plan update. EPA is proposing to approve the maintenance
plan to fulfill the requirement of section 175A(b) for submission of a
maintenance plan update eight years after the area was redesignated to
attainment of the 1-hour ozone NAAQS. EPA believes that such an update
must ensure that the maintenance plan in the SIP provides maintenance
of the NAAQS for a period of 20 years after the area is initially
redesignated to attainment. EPA can propose approval because the
maintenance plan, which demonstrates maintenance of the 8-hour ozone
NAAQS through 2018, also demonstrates maintenance of the 1-hour ozone
NAAQS through 2018, even though the latter standard is no longer

[[Page 26302]]

in effect. The Charleston area was redesignated to attainment of the 1-
hour ozone NAAQS on September 6, 1994 (59 FR 45985), and, the initial
1-hour ozone maintenance plan provided for maintenance through 2005.
Section 51.905(e) of the ``Final Rule To Implement the 8-Hour
Requirements--Phase 1,'' April 30, 2004 (69 FR 23999) specifies the
conditions that must be satisfied before EPA may approve a modification
to a 1-hour maintenance plan which: (1) removes the obligation to
submit a maintenance plan for the 1-hour ozone NAAQS eight years after
approval of the initial 1-hour maintenance plan and/or (2) removes the
obligation to implement contingency measures upon a violation of the 1-
hour NAAQS. EPA believes that section 51.905(e) of the final rule
allows a State to make either one or both of these modifications to a
1-hour maintenance plan SIP once EPA approves a maintenance plan for
the 8-hour NAAQS. The maintenance plan will not trigger the contingency
plan upon a violation of the 1-hour ozone NAAQS, but upon a violation
of the 8-hour ozone NAAQS. EPA believes that the 8-hour standard is now
the proper standard which should trigger the contingency plan now that
the 1-hour NAAQS has been revoked and now that approval of the
maintenance plan would allow the State to remove a 1-hour NAAQS
obligation from the SIP. EPA has determined that the Charleston area
has attained the standard and has met the requirements for
redesignation set forth in section 107(d)(3)(E).

V. What Would Be the Effect of These Actions?

Approval of the redesignation request would change the designation
of the Charleston area from nonattainment to attainment for the 8-hour
ozone NAAQS found at 40 CFR part 81. It would also incorporate into the
West Virginia SIP a maintenance plan ensuring continued attainment of
the 8-hour ozone NAAQS in the Charleston area for the next 12 years,
until 2018. The maintenance plan includes contingency measures to
remedy any future violations of the 8-hour NAAQS (should they occur),
and identifies the MVEBs for NO_X and VOC for transportation
conformity purposes for the years 2004, 2009 and 2018. These MVEBs are
displayed in the following table:

Table 1.--Motor Vehicle Emissions Budgets in Tons per Day
[tpd]
------------------------------------------------------------------------
Year NOX VOC
------------------------------------------------------------------------
2004........................................ 26.4 16.1
2009........................................ 19.8 11.6
2018........................................ 8.20 7.20
------------------------------------------------------------------------

VI. What Is EPA's Analysis of the State's Request?

EPA is proposing to determine that the Charleston nonattainment
area has attained the 8-hour ozone standard and that all other
redesignation criteria have been met. The following is a description of
how the WVDEP's November 30, 2005 submittal satisfies the requirements
of section 107(d)(3)(E) of the CAA.

A. The Charleston Area Has Attained the 8-Hour Ozone NAAQS

EPA is proposing to determine that the Charleston area has attained
the 8-hour ozone NAAQS. For ozone, an area may be considered to be
attaining the 8-hour ozone NAAQS if there are no violations, as
determined in accordance with 40 CFR 50.10 and Appendix I of part 50,
based on three complete, consecutive calendar years of quality-assured
air quality monitoring data. To attain this standard, the 3-year
average of the fourth-highest daily maximum 8-hour average ozone
concentrations measured at each monitor, within the area, over each
year must not exceed the ozone standard of 0.08 ppm. Based on the
rounding convention described in 40 CFR part 50, appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the Aerometric Information Retrieval System
(AIRS). The monitors generally should have remained at the same
location for the duration of the monitoring period required for
demonstrating attainment.
In the Charleston area there is one ozone monitor, located in
Kanawha County, that measures air quality with respect to ozone. As
part of its redesignation request, West Virginia submitted ozone
monitoring data for the years 2002-2004 (the most recent three years of
data available as of the time of the redesignation request). This data
has been quality assured and is recorded in AIRS. The fourth high 8-
hour daily maximum concentrations, along with the three-year average,
are summarized in Table 2.

Table 2.--Charleston Nonattainment Area Fourth Highest 8-Hour Average
Values; Charleston Monitor, AIRS ID 54-033-4000
------------------------------------------------------------------------
Annual 4th
Year high reading
(ppm)
------------------------------------------------------------------------
2002.................................................... 0.087
2003.................................................... 0.088
2004.................................................... 0.069
2005.................................................... 0.079
------------------------------------------------------------------------
The average for the 3-year period 2002 through 2004 is 0.081 ppm.
------------------------------------------------------------------------

The data for 2002-2004 show that the area has attained the
standard, and preliminary data for the 2005 ozone season show that the
annual fourth high reading is 0.079 ppm and that the area continues to
attain the standard. The data collected at the Charleston monitor
satisfies the CAA requirement that the 3-year average of the annual
fourth-highest daily maximum 8-hour average ozone concentration is less
than or equal to 0.08 ppm. The WVDEP's request for redesignation for
the Charleston area indicates that the data was quality assured in
accordance with 40 CFR part 58. The WVDEP uses AIRS as the permanent
database to maintain its data and quality assures the data transfers
and content for accuracy. In addition, as discussed below with respect
to the maintenance plan, WVDEP has committed to continue monitoring in
accordance with 40 CFR part 58. In summary, EPA has determined that the
data submitted by West Virginia indicates that the Charleston area has
attained the 8-hour ozone NAAQS.

B. The Charleston Area Has Met All Applicable Requirements Under
Section 110 and Part D of the CAA and the Area Has a Fully Approved SIP
Under Section 110(k) of the CAA

EPA has determined that West Virginia has met all SIP requirements
for the Charleston area applicable for purposes of redesignation under
section 110 of the CAA (General SIP Requirements) and that it meets all
applicable SIP requirements under Part D of Title I of the CAA, in
accordance with section 107(d)(3)(E)(v). In addition, EPA has
determined that the SIP is fully approved with respect to all
requirements applicable for purposes of redesignation in accordance
with section 107(d)(3)(E)(ii). In making these proposed determinations,
EPA ascertained what requirements are applicable to the area, and
determined that the applicable portions of the SIP

[[Page 26303]]

meeting these requirements are fully approved under section 110(k) of
the CAA. We note that SIPs must be fully approved only with respect to
applicable requirements.
The September 4, 1992 Calcagni memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) with respect to the timing of applicable requirements.
Under this interpretation, to qualify for redesignation, states
requesting redesignation to attainment must meet only the relevant CAA
requirements that come due prior to the submittal of a complete
redesignation request. See also Michael Shapiro memorandum, September
17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of
Detroit-Ann Arbor). Applicable requirements of the CAA that come due
subsequent to the area's submittal of a complete redesignation request
remain applicable until a redesignation is approved, but are not
required as a prerequisite to redesignation. Section 175A(c) of the
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
1. Section 110 General SIP Requirements
Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations.
The general SIP elements and requirements set forth in section
110(a)(2) include, but are not limited to, the following:
? Submittal of a SIP that has been adopted by the state
after reasonable public notice and hearing;
? Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
? Implementation of a source permit program; provisions for
the implementation of Part C requirement (Prevention of Significant
Deterioration (PSD));
? Provisions for the implementation of Part D requirements
for New Source Review (NSR) permit programs;
? Provisions for air pollution modeling; and
? Provisions for public and local agency participation in
planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants in accordance with the NO_X SIP Call, October
27, 1998 (63 FR 57356), amendments to the NO_X SIP Call, May
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25161). However, the
section 110(a)(2)(D) requirements for a state are not linked with a
particular nonattainment area's designation and classification in that
state. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state.
Thus, we do not believe that these requirements should be construed
to be applicable requirements for purposes of redesignation. In
addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The State will still be subject to these requirements
after the Charleston area is redesignated. The section 110 and Part D
requirements, which are linked with a particular area's designation and
classification, are the relevant measures to evaluate in reviewing a
redesignation request. This policy is consistent with EPA's existing
policy on applicability of conformity (i.e., for redesignations) and
oxygenated fuels requirement. See Reading, Pennsylvania, proposed and
final rulemakings 61 FR 53174-53176 (October 10, 1996), 62 FR 24816
(May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking 61 FR
20458 (May 7, 1996); and Tampa, Florida, final rulemaking 60 FR 62748
(December 7, 1995). See also the discussion on this issue in the
Cincinnati redesignation 65 FR 37890 (June 19, 2000), and in the
Pittsburgh redesignation 66 FR 50399 (October 19, 2001). Similarly,
with respect to the NO_X SIP Call rules, EPA noted in its
Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the
NO_X SIP Call rules are not ``an `applicable requirement' for
purposes of section 110(l) because the NO_X rules apply
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
Any section 110 requirements that are linked to the Part D requirements
for 8-hour ozone nonattainment areas are not yet due, because, as we
explain later in this notice, no Part D requirements applicable for
purposes of redesignation under the 8-hour standard became due prior to
submission of the redesignation request.
Because the West Virginia SIP satisfies all of the applicable
general SIP elements and requirements set forth in section 110(a)(2),
EPA concludes that West Virginia has satisfied the criterion of section
107(d)(3)(E) regarding section 110 of the Act.
2. Part D Nonattainment Area Requirements Under the 8-Hour Standard
The Charleston area was designated a basic nonattainment area for
the 8-hour ozone standard. Sections 172-176 of the CAA, found in
subpart 1 of Part D, set forth the basic nonattainment requirements for
all nonattainment areas. Since the Charleston area was maintaining
attainment of the 1-hour standard at the time of its designation as a
basic 8-hour ozone nonattainment area on April 30, 2004, no Part D
submittals under the 1-hour standard were required or made for this area.
Section 182 of the CAA, found in subpart 2 of Part D, establishes
additional specific requirements depending on the area's nonattainment
classification. The Charleston area was classified as a subpart 1
nonattainment area; therefore, no subpart 2 requirements apply to this
area.
With respect to the 8-hour standard, EPA proposes to determine that
the West Virginia SIP meets all applicable SIP requirements under Part
D of the CAA, because no 8-hour ozone standard Part D requirements
applicable for purposes of redesignation became due prior to submission
of the area's redesignation request. Because the State submitted a
complete redesignation request for the Charleston area prior to the
deadline for any submissions required under the 8-hour standard, we
have determined that the Part D requirements do not apply to the
Charleston area for the purposes of redesignation
In addition to the fact that Part D requirements applicable for
purposes of redesignation did not become due prior

[[Page 26304]]

to submission of the redesignation request, EPA believes it is
reasonable to interpret the general conformity and NSR requirements as
not requiring approval prior to redesignation.
With respect to section 176, Conformity Requirements, section
176(c) of the CAA requires states to establish criteria and procedures
to ensure that federally supported or funded projects conform to the
air quality planning goals in the applicable SIP. The requirement to
determine conformity applies to transportation plans, programs, and
projects developed, funded or approved under Title 23 U.S.C. and the
Federal Transit Act (``transportation conformity'') as well as to all
other federally supported or funded projects (``general conformity'').
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required the EPA to promulgate.
EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) since state conformity rules
are still required after redesignation and federal conformity rules
apply where state rules have not been approved. See Wall v. EPA, 265
F.3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. See
also 60 FR 62748 (Dec. 7, 1995).
EPA has also determined that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without Part D NSR in effect, because PSD requirements will
apply after redesignation. The rationale for this view is described in
a memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled, ``Part D NSR Requirements
or Areas Requesting Redesignation to Attainment.'' West Virginia has
demonstrated that the area will be able to maintain the standard
without Part D NSR in effect in the Charleston area, and therefore,
West Virginia need not have a fully approved Part D NSR program prior
to approval of the redesignation request. West Virginia's SIP-approved
PSD program will become effective in the area upon redesignation to
attainment in the Charleston area. See rulemakings for Detroit, MI (60
FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR
20458, 20469-70, May 7, 1996); Louisville, KY (66 FR 53665, October 23,
2001); Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
3. The Area Has a Fully Approved SIP for the Purposes of Redesignation
EPA has fully approved the West Virginia SIP for the purposes of
redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action. See 68 FR 25425
(May 12, 2003) and citations therein.
The Charleston area was maintaining attainment of the 1-hour
standard at the time of its designation as a basic 8-hour ozone
nonattainment area on April 30, 2004. Because the area was redesignated
as a 1-hour maintenance area, no Part D SIP submittals were previously
required. Because there are no current SIP submission requirements
applicable for the purposes of redesignation of the Charleston area,
the applicable implementation plan satisfies all pertinent SIP
requirements. As indicated previously, EPA believes that the section
110 elements not connected with Part D nonattainment plan submissions
and not linked to the area's nonattainment status are not applicable
requirements for purposes of redesignation. EPA also believes that no
8-hour Part D requirements applicable for purposes of redesignation
have yet become due for the Charleston area, and therefore they need
not be approved into the SIP prior to redesignation.
4. The Air Quality Improvement in the Charleston Area Is Due to
Permanent and Enforceable Reductions in Emissions Resulting From
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Reductions
EPA believes that the State has demonstrated that the observed air
quality improvement in the area is due to permanent and enforceable
reductions in emissions resulting from implementation of the SIP,
Federal measures, and other state-adopted measures. Emissions
reductions attributable to these rules are shown in Table 3.

Table 3.--Total VOC and NOX Emissions for 2002 and 2004
[tpd]
----------------------------------------------------------------------------------------------------------------
Year Point Area Nonroad Mobile Total
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 10.1 21.2 5.5 15.7 52.5
Year 2004 *.............................................. 10.0 20.9 5.3 13.4 49.6
Diff. (02-04)............................................ -0.1 -0.3 -0.2 -2.3 -2.9
----------------------------------------------------------------------------------------------------------------
Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 133.8 2.4 13.0 25.5 174.7
Year 2004 *.............................................. 87.8 2.5 12.7 22.0 125.0
Diff. (02-04)............................................ -46.0 +0.1 -0.3 -3.5 -49.7
----------------------------------------------------------------------------------------------------------------
* 2004 Emissions estimated by linear interpolation for all sectors except highway and point EGUs.

Between 2002 and 2004, VOC emissions were reduced by 2.9 tpd, and
NO_X emissions were reduced by 49.7 tpd, due to the following
permanent and enforceable measures implemented or in the process of
being implemented in the Charleston area:

Programs Currently in Effect

(a) National Low Emission Vehicle (NLEV);

[[Page 26305]]

(b) Motor vehicle fleet turnover with new vehicles meeting the Tier
2 standards; and,
(c) Clean Diesel Program.
West Virginia has demonstrated that the implementation of permanent
enforceable emissions controls have reduced local VOC and
NO_X emissions. Nearly all of the reductions in VOC are
attributable to mobile source emission controls such as NLEV and Tier 2
programs. The mobile programs produced 2.3 tpd of VOC reductions and
3.5 tpd of NO_X reductions.
Nearly all of the reductions in NO_X are attributable to
the implementation of the NO_X SIP Call. West Virginia has
indicated in its submittal that the implementation of the
NO_X SIP Call, with its mandatory reductions in
NO_X emissions from Electric Generating Units (EGUs) and
large industrial boilers (non-EGUs), reduced NO_X emissions
throughout the Charleston area. NO_X emissions from EGUs in
the Charleston area were reduced by 6,798 tons between 2002 and 2004.
Also, NO_X emissions from non-EGU sources in the Charleston
area were reduced by 806 tons between 2003 and 2004. The WVDEP believes
that the improvement in ozone air quality from 2002 to 2004 was the
result of identifiable, permanent and enforceable reductions in ozone
precursor emissions for the same period.
Additionally, WVDEP has identified, but not quantified, additional
reductions in VOC emissions that will be achieved as a co-benefit of
the reductions in the emission of hazardous air pollutants (HAPs) as a
result of implementation of EPA's Maximum Achievable Control Technology
(MACT) standards.
Other regulations, such as the non-road diesel, 69 FR 39858 (June
29, 2004), the heavy duty engine and vehicle standards, 66 FR 5002
(January 18, 2001) and the new Tier 2 tailpipe standards for
automobiles, 65 FR 6698 (January 10, 2000), are also expected to
greatly reduce emissions throughout the country and thereby reduce
emissions impacting the Charleston area monitor. The Tier 2 standards
came into effect in 2004, and by 2030, EPA expects that the new Tier 2
standards will reduce NO_X emissions by about 74 percent
nationally. EPA believes that permanent and enforceable emissions
reductions are the cause of the long-term improvement in ozone levels
and are the cause of the area achieving attainment of the 8-hour ozone
standard.
5. The Charleston Area Has a Fully Approved Maintenance Plan Pursuant
to Section 175A of the CAA
In conjunction with its request to redesignate the Charleston area
to attainment status, West Virginia submitted a SIP revision to provide
for maintenance of the 8-hour ozone NAAQS in the area for at least 12
years after redesignation. West Virginia is requesting that EPA approve
this SIP revision as meeting the requirement of CAA 175A(b) and replace
the 1-hour ozone maintenance plan update requirement.
Under 40 CFR 51.905(e), the EPA may approve a SIP revision
requesting the removal of the obligation to implement contingency
measures upon a violation of the 1-hour ozone NAAQS when the State
submits and EPA approves an attainment demonstration for the 8-hour
ozone NAAQS for an area initially designated nonattainment for the 8-
hour NAAQS or a maintenance SIP for the 8-hour NAAQS for an area
initially designated attainment for the 8-hour NAAQS.
The rationale behind 40 CFR 51.905(e) is to ensure that the area
maintains the applicable ozone standard (the 8-hour standard in areas
where the 1-hour standard has been revoked). EPA believes this
rationale analogously applies to areas that were not initially
designated, but are redesignated as attainment with the 8-hour ozone
NAAQS. Therefore, EPA intends to treat redesignated areas as though
they had been initially designated attainment of the 8-hour ozone
NAAQS, and accordingly proposes to relieve the Charleston area of its
maintenance plan obligations with respect to the 1-hour standard. Once
approved, the maintenance plan for the 8-hour ozone NAAQS will ensure
that the SIP for the Charleston area meets the requirements of the CAA
regarding maintenance of the applicable 8-hour ozone standard.

What Is Required in a Maintenance Plan?

Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the State must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the
next 10-year period following the initial 10-year period (12 years in
Charleston's case). To address the possibility of future NAAQS
violations, the maintenance plan must contain such contingency
measures, with a schedule for implementation, as EPA deems necessary to
assure prompt correction of any future 8-hour ozone violations. Section
175A of the CAA sets forth the elements of a maintenance plan for areas
seeking redesignation from nonattainment to attainment. The Calcagni
memorandum dated September 4, 1992, provides additional guidance on the
content of a maintenance plan. An ozone maintenance plan should address
the following provisions:
(a) An attainment emissions inventory;
(b) A maintenance demonstration;
(c) A monitoring network;
(d) Verification of continued attainment; and
(e) A contingency plan.

Analysis of the Charleston Area Maintenance Plan

(a) Attainment Inventory--An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. An attainment year of 2004 was used for the
Charleston area since it is a reasonable year within the 3-year block
of 2002-2004 and accounts for reductions attributable to implementation
of the CAA requirements to date.
The WVDEP prepared comprehensive VOC and NO_X emissions
inventories for the Charleston area, including point, area, mobile on-
road, and mobile non-road sources for a base year of 2002.
To develop the NO_X and VOC base year emissions
inventories, WVDEP used the following approaches and sources of data:
(i) Point source emissions--West Virginia maintains its point
source emissions inventory data on the i-STEPS database, which is
commercial software purchased from a vendor, Pacific Environmental
Services. Facilities subject to emissions inventory reporting
requirements were those operating point sources subject to Title V
permitting requirements. Affected sources were identified from the
WVDEP's Regulation 30 database which is maintained by the WVDEP's Title
V Permitting Group. For the 2002 inventory, diskettes were populated
with i-STEPS software information, as well as source-specific data from
the previous year and sent to facilities for updates of their 2002
activity and emissions data. The facilities then sent the diskettes
back to the State and, where WVDEP staff quality assured the data and
submitted it to EPA's Central

[[Page 26306]]

Data Exchange (CDX) site as well as to contractors for the Visibility
Improvement State and Tribal Association of the Southeast (VISTAS), a
Regional Planning Organization (RPO).
WVDEP used the VISTAS revised 2002 base year point source inventory
including both EGUs and non-EGUs. The WVDEP took VISTAS data and
calculated the emissions for the EGUs and non-EGUs for a typical summer
weekday for peak ozone season (June thru August).
(ii) Area source emissions--In order to calculate the area source
emissions inventory the WVDEP took the annual values from the VISTAS
base year inventory and derived the typical ozone summer weekday, using
procedures outlined in the EPA's Emissions Modeling Clearinghouse
(EMCH) Memorandum, ``Temporal Allocation of Annual Emissions Using EMCH
Temporal Profiles, April 29, 2002.'' This enabled WVDEP to arrive at
the ``typical'' summer day emissions.
(iii) On-road mobile source emissions--VISTAS developed 2002 on-
road mobile (highway) emissions inventory data based on vehicle miles
traveled (VMT) updates provided by WVDEP. VISTAS also estimated future
emissions based upon expected growth for the future years 2009 and
2018. However, Federal Transportation Conformity requirements dictate
that the WVDEP consult with the Metropolitan Planning Organization
(MPO) responsible for transportation planning in developing SIP
revisions which may establish highway emissions budgets. This applies
to the maintenance plan submitted by WVDEP on November 30, 2005.
Therefore, the WVDEP has consulted with the Charleston MPO, and the
Regional Intergovernmental Council (RIC). The RIC provided base year
and projection emissions data consistent with their most recent
available Travel Demand Model (TDM) results along with EPA's most
recent emission factor model, MOBILE6.2. The WVDEP used these data to
estimate highway emissions and, in consultation with the RIC, to
develop highway emissions budgets for VOC and NO_X. The RIC
must evaluate future Long Range Transportation Plans and Transportation
Improvement Programs to ensure that the associated emissions are equal
to or less than the final emissions budgets. The budgets are designed
to facilitate a positive conformity determination while ensuring
overall maintenance of the 8-hour NAAQS. It should be noted that an
actual decrease in highway emissions occurred between 2002 and 2004.
(iv) Mobile non-road emissions--Mobile non-road emissions were
calculated in the same manner as the area source emissions.
The 2004 attainment year VOC and NO_X emissions for the
Charleston area are summarized along with the 2009 and 2018 projected
emissions for this area in tables 4 and 5, which cover the
demonstration of maintenance for this area. EPA has concluded that West
Virginia has adequately derived and documented the 2004 attainment year
VOC and NO_X emissions for this area.
(b) Maintenance Demonstration--On November 30, 2005, the WVDEP
submitted a SIP revision to supplement its November 30, 2005
redesignation request. The submittal by WVDEP consists of the
maintenance plan as required by section 175A of the CAA. The Charleston
area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating
that current and future emissions of VOC and NO_X remain at
or below the attainment year 2004 emissions levels throughout the
Charleston area through the year 2018. The Charleston area maintenance
demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d
426 (6th Cir. 2001); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25430-32
(May 12, 2003).
Tables 4 and 5 specify the VOC and NO_X emissions for the
Charleston area for 2004, 2009, and 2018. The WVDEP chose 2009 as an
interim year in the 12-year maintenance demonstration period to
demonstrate that the VOC and NO_X emissions are not projected
to increase above the 2004 attainment level during the time of the 12-
year maintenance period.

Table 4.--Total VOC Emissions for 2004-2018
[tpd]
------------------------------------------------------------------------
2004 VOC
Source category emissions 2009 VOC 2018 VOC
\1\ emissions emissions
------------------------------------------------------------------------
Mobile........................... 13.4 11.6 7.2
Nonroad.......................... 5.3 4.6 3.5
Area............................. 20.9 20.1 22.1
Point \2\........................ 10.0 10.4 12.2
--------------------------------------
Total........................ 49.6 46.7 45.0
------------------------------------------------------------------------
\1\ 2004 Emissions estimated by linear interpolation for all sectors
except highway and EGUs.
\2\ Non-EGU emissions updated for 2008 NOX SIP Call.

Table 5.--Total NOX Emissions 2004-2018
[tpd]
------------------------------------------------------------------------
2004 NOX
Source category emissions 2009 NOX 2018 NOX
\1\ emissions emissions
------------------------------------------------------------------------
Mobile........................... 22.0 19.8 8.2
Nonroad.......................... 12.7 12.0 10.1
Area............................. 2.5 2.6 2.9
Point \2\........................ 87.8 67.9 59.4
--------------------------------------
Total........................ 125.0 102.3 80.6
------------------------------------------------------------------------
\1\ 2004 Emissions estimated by linear interpolation for all sectors
except highway and EGUs.
\2\ Non-EGU emissions updated for 2008 NOX SIP Call.

[[Page 26307]]

Additionally, the following mobile programs are either effective or
due to become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:
? Heavy duty diesel on-road (2004/2007) and low-sulfur on-
road (2006); 66 FR 2001 (January 18, 2001); and
? Non-road emissions standards (2008) and off-road diesel
fuel (2007/2010); 69 FR 39858 (June 29, 2004).
In addition to the permanent and enforceable measures, the Clean
Air Interstate Rule (CAIR), promulgated May 12, 2005, (70 FR 25161)
should have positive impacts on the State's air quality. CAIR, which
will be implemented in the eastern portion of the country in two phases
(2009 and 2015) should reduce long range transport of ozone precursors,
which will have a beneficial effect on the air quality in the
Charleston area.
Currently, the State is in the process of adopting rules to address
CAIR through state rules 45CSR3, 45CSR40, and 45CSR41, which require
annual and ozone season NO_X reductions from EGUs and ozone
season NO_X reductions from non-EGUs. These rules will be
submitted to EPA as a SIP revision by September 11, 2006 as required in
the May 12, 2005, (70 FR 25161) Federal Register publication.
Based upon the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that WVDEP has successfully demonstrated that the 8-hour
ozone standard should be maintained in the Charleston area.
(c) Monitoring Network--There is currently one monitor measuring
ozone in the Charleston area. West Virginia will continue to operate
its current air quality monitor in accordance with 40 CFR part 58.
(d) Verification of Continued Attainment--The State of West
Virginia has the legal authority to implement and enforce specified
measures necessary to attain and maintain the NAAQS. Additionally,
federal programs such as Tier2/Low Sulfur Gasoline Rule, 2007 On-Road
Diesel Engine Rule, and Federal Non-road Engine/Equipment Rules will
continue to be implemented on a national level. These programs help
provide the reductions necessary for the Charleston area to maintain
attainment.
In addition to maintaining the key elements of its regulatory
program, the State requires ambient and source emissions data to track
attainment and maintenance. The WVDEP proposes to fully update its
point, area, and mobile emission inventories at 3-year intervals as
required by the Consolidated Emissions Reporting Rule (CERR) to assure
that its growth projections relative to emissions in these areas are
sufficiently accurate to assure ongoing attainment with the NAAQS. The
WVDEP will review stationary source VOC and NO_X emissions by
review of annual emissions statements and by update of its emissions
inventories. The area source inventory will be updated using non-point
NEI. However, some source categories may be updated using historic
activity levels determined from Bureau of Economic Analysis (BEA) data
or West Virginia University/Regional Research Institute (WVU/RRI)
population estimates. The mobile source inventory model will be updated
by obtaining county-level VMT from the West Virginia Department of
Transportation (WVDOT) for the subject year and calculating emissions
using the latest approved MOBILE model. Alternatively, the highway
emissions may be obtained in consultation with the MPO, the RIC, using
methodology similar to that used for Transportation Conformity purposes.
(e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the Act requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the State will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the state would adopt and implement the measure(s).
The ability of the Charleston area to stay in compliance with the
8-hour ozone standard after redesignation depends upon VOC and
NO_X emissions in the area remaining at or below 2004 levels.
The State's maintenance plan projects VOC and NO_X emissions
to decrease and stay below 2004 levels through the year 2018. The
State's maintenance plan lays out two situations where the need to
adopt and implement a contingency measure to further reduce emissions
would be triggered. Those situations are as follows:
(i) If the triennial inventories indicate emissions growth in
excess of 10 percent of the 2002 base-year inventory or if a monitored
air quality exceedance pattern indicates that an ozone NAAQS violation
may be imminent--The maintenance plan states that an exceedance pattern
would include, but is not limited to, the measurement of three
exceendances or more occurring at the same monitor during a calendar
year. The plan also states that comprehensive tracking inventories will
also be developed every 3 years using current EPA-approved methods to
assure that its growth projections relative to emissions in the area
are sufficiently accurate to assure ongoing attainment with the NAAQS.
If the 2002 base-year inventory or a monitored air quality exceedance
pattern occurs, the following measure will be implemented:
? WVDEP will evaluate existing control measures to ascertain if
additional regulatory revisions are necessary to maintain the ozone
standard.
(ii) In the event that a violation of the 8-hour ozone standard
occurs at the Kanawha County/Charleston monitor--The maintenance plan
states that in the event that a violation of the ozone standard occurs
at the Charleston monitor, the State of West Virginia, in consultation
with EPA Region III, will implement one or more of the following
measures to assure continued attainment:
? Extend the applicability of 45CSR21 (VOC/RACT rule) to
include source categories previously excluded (e.g., waste water
treatment facilities);
? Revised new source permitting requirements requiring more
stringent emissions control technology and/or emissions offsets;
? NO_X RACT requirements;
? Regulations to establish plant-wide emissions caps
(potentially with emissions trading provisions);
? Establish a Public Awareness/Ozone Action Day Program, a
two pronged program focusing on increasing the public's understanding
of air quality issues in the region and increasing support for actions
to improve the air quality, resulting in reduced emissions on days when
the ozone levels are likely to be high.
? Initiate one or more of the following voluntary local
control measures:
(1) Bicycle and Pedestrian Measures--A series of measures designed
to promote bicycling and walking including both promotional activities
and enhancing the environment for these activities;
(2) Reduce Engine Idling--Voluntary programs to restrict heavy duty
diesel engine idling times for both trucks and school buses;
(3) Voluntary Partnership with Ground Freight Industry--A voluntary
program using incentives to encourage

[[Page 26308]]

the ground freight industry to reduce emissions;
(4) Increase Compliance with Open Burning Restrictions--Increase
public awareness of the existing open burning restrictions and work
with communities to increase compliance; and
(5) School Bus Engine Retrofit Program--Have existing school bus
engines retrofitted to lower emissions.
The following schedule for adoption, implementation and compliance
applies to the contingency measures concerning the option of
implementing regulatory requirements.
? Confirmation of the monitored violation within 45 days of occurrence;
? Measure to be selected within 3 months after verification
of a monitored ozone standard violation;
? Develop rule within 6 months of selection of measure;
? File rule with state secretary (process takes up to 42 days);
? Applicable regulation to be fully implemented 6 months
after adoption.
The following schedule for adoption, implementation and compliance
applies to the voluntary contingency measures.
? Confirmation of the monitored violation within 45 days of
occurrence;
? Measure to be selected within 3 months after verification
of a monitored ozone standard violation;
? Initiation of program development with local governments
within the area by the start of the following ozone season.
(f) An Additional Provision of the Maintenance Plan--The State's
maintenance plan for the Charleston area has an additional provision.
That provision states that based on the 2002 inventory data and
calculation methodology, it is expected that area and mobile source
emissions would not exhibit substantial increases between consecutive
periodic year inventories. Therefore, if significant unanticipated
emissions growth occurs, it is expected that point sources would be the
cause. West Virginia regulation 45CSR29 requires significant point
source emitters in six counties, including Kanawha and Putnam, to
submit annual emission statements which contain emission totals for
VOCs and NO_X. Any significant increases that occur can be
identified from these reports without waiting for a periodic inventory.
This gives West Virginia the capability to identify needed regulations
by source, source category and pollutant and to begin the rule
promulgation process, if necessary, in an expeditious manner.
The maintenance plan adequately addresses the five basic components
of a maintenance plan: attainment inventory, maintenance demonstration,
monitoring network, verification of continued attainment, and a
contingency plan. EPA believes that the maintenance plan SIP revision
submitted by West Virginia for the Charleston area meets the
requirements of section 175A of the Act.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Maintenance Plan for the Charleston Area Adequate and Approvable?

A. What Are the Motor Vehicle Emissions Budgets (MVEBs)?

Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs)
and maintenance plans identify and establish MVEBs for certain criteria
pollutants and/or their precursors to address pollution from on-road
mobile sources. In the maintenance plan the MVEBs are termed ``on-road
mobile source emissions budgets.'' Pursuant to 40 CFR part 93 and
51.112, MVEBs must be established in an ozone maintenance plan. A MVEB
is the portion of the total allowable emissions that is allocated to
highway and transit vehicle use and emissions. A MVEB serves as a
ceiling on emissions from an area's planned transportation system. The
MVEB concept is further explained in the preamble to the November 24,
1993, transportation conformity rule (58 FR 62188). The preamble also
describes how to establish and revise the MVEBs in control strategy
SIPs and maintenance plans.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
or reasonable progress towards the national ambient air quality
standards. If a transportation plan does not ``conform,'' most new
projects that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a state implementation plan.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB budget
contained therein ``adequate'' for use in determining transportation
conformity. After EPA affirmatively finds the submitted MVEB is
adequate for transportation conformity purposes, that MVEB can be used
by state and federal agencies in determining whether proposed
transportation projects ``conform'' to the state implementation plan as
required by section 176(c) of the CAA. EPA's substantive criteria for
determining ``adequacy'' of a MVEB are set out in 40 CFR 93.118(e)(4).
EPA's process for determining ``adequacy'' consists of three basic
steps: public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision.'' This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM_2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; Transportation Conformity
Rule Amendments--Response to Court Decision and Additional Rule
Change'' on July 1, 2004 (69 FR 40004). EPA follows this guidance and
rulemaking in making its adequacy determinations.
The MVEBs for the Charleston area are listed in Table 1 of this
document for the 2004, 2009, and 2018 years and are the projected
emissions for the on-road mobile sources plus any portion of the safety
margin allocated to the MVEBs. These emission budgets, when approved by
EPA, must be used for transportation conformity determinations.

B. What Is a Safety Margin?

A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2018 safety
margin: The Charleston area first attained the 8-hour ozone NAAQS
during the 2002 to 2004 time period. The State used 2004 as the year to
determine attainment levels of emissions for the Charleston area. The
total emissions from point, area, mobile on-road, and mobile non-road
sources in 2004 equaled 49.6 tpd of VOC and 125 tpd of NO_X.
The WVDEP projected emissions out to the year 2018 and projected a
total of 45 tpd of VOC and 80.6 tpd of NO_X from all sources
in the

[[Page 26309]]

Charleston area. The safety margin for the Charleston area for 2018
would be the difference between these amounts, or 4.6 tpd of VOC and
44.4 tpd of NO_X. The emissions up to the level of the
attainment year including the safety margins are projected to maintain
the area's air quality consistent with the 8-hour ozone NAAQS. The
safety margin is the extra emissions reduction below the attainment
levels that can be allocated for emissions by various sources as long
as the total emission levels are maintained at or below the attainment
levels. Table 6 shows the safety margins for the 2009 and 2018 years.

Table 6.--2009 and 2018 Safety Margins for the Charleston Area
------------------------------------------------------------------------
VOC emissions NOX emissions
Inventory year (tpd) (tpd)
------------------------------------------------------------------------
2004 Attainment....................... 49.6 125
2009 Interim.......................... 46.7 102.3
2009 Safety Margin.................... 2.9 22.7
2004 Attainment....................... 49.6 125
2018 Final............................ 45 80.6
2018 Safety Margin.................... 4.6 44.4
------------------------------------------------------------------------

The WVDEP allocated 3.3 tpd NO_X and 1.9 tpd VOC to the
2009 interim VOC projected on-road mobile source emissions projection
and the 2009 interim NO_X projected on-road mobile source
emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs
the VADEQ allocated 1.4 tpd NO_X and 1.2 tpd VOC from the
2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the
mobile source budgets these portions of the safety margins are no
longer available, and may no longer be allocated to any other source
category. Table 7 shows the final 2009 and 2018 MVEBS for the
Charleston area.

Table 7.--2009 and 2018 Final MVEBs for the Charleston Area
------------------------------------------------------------------------
VOC emissions NOX emissions
Inventory year (tpd) (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source 9.7 16.5
projected emissions....................
2009 Safety Margin Allocated to MVEBs... 1.9 3.3
2009 MVEBs.............................. 11.6 19.8
2018 projected on-road mobile source 6.0 6.8
projected emissions....................
2018 Safety Margin Allocated to MVEBs... 1.2 1.4
2018 MVEBs.............................. 7.20 8.20
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

The 2004, 2009 and 2018 MVEBs for the Charleston area are
approvable because the MVEBs for NO_X and VOC, including the
allocated safety margins, continue to maintain the total emissions at
or below the attainment year inventory levels as required by the
transportation conformity regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the
Charleston Area Maintenance Plan?

The MVEBs for the Charleston area maintenance plan are being posted
to EPA's conformity Web site concurrent with this proposal. The public
comment period will end at the same time as the public comment period
for this proposed rule. In this case, EPA is concurrently processing
the action on the maintenance plan and the adequacy process for the
MVEBs contained therein. In this proposed rule, EPA is proposing to
find the MVEBs adequate and also proposing to approve the MVEBs as part
of the maintenance plan. The MVEBs cannot be used for transportation
conformity until the maintenance plan update and associated MVEBs are
approved in a final Federal Register notice, or EPA otherwise finds the
budgets adequate in a separate action following the comment period.
If EPA receives adverse written comments with respect to the
proposed approval of the Charleston MVEBs, or any other aspect of our
proposed approval of this updated maintenance plan, we will respond to
the comments on the MVEBs in our final action or proceed with the
adequacy process as a separate action. Our action on the Charleston
area MVEBs will also be announced on EPA's conformity Web site: http://
www.epa.gov/oms/traq, (once there, click on the ``Conformity'' button,
then look for ``Adequacy Review of SIP Submissions for Conformity'').

VIII. Proposed Actions

EPA is proposing to determine that the Charleston area has attained
the 8-hour ozone NAAQS. The EPA is also proposing to approve the State
of West Virginia's November 30, 2005 request for the Charleston area to
be designated to attainment of the 8-hour NAAQS for ozone because the
requirements for approval have been satisfied. EPA has evaluated West
Virginia's redesignation request and determined that it meets the
redesignation criteria set forth in section 107(d)(3)(E) of the CAA.
EPA believes that the redesignation request and monitoring data
demonstrate that the area has attained the 8-hour ozone standard. The
final approval of this redesignation request would change the
designation of the Charleston area from nonattainment to attainment for
the 8-hour ozone standard. EPA is also proposing to approve the
associated maintenance plan for this area, submitted on November 30,
2005, as a revision to the West Virginia SIP. EPA is proposing to
approve the maintenance plan for the area because it meets the
requirements of section 175A as described previously in this notice.
EPA is also proposing to approve the MVEBs submitted by West Virginia
for the area in conjunction with its redesignation request. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.

[[Page 26310]]

IX. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)).
This action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Redesignation of an area to attainment under
section 107(d)(3)(e) of the Clean Air 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 new
regulatory requirements on sources. Redesignation of an area to
attainment under section 107(d)(3)(E) of the Clean Air 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 new regulatory requirements on sources. Accordingly, the
Administrator certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule proposes to approve pre-existing requirements under state law
and does not impose any additional enforceable duty beyond that
required by state law, it 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). This proposed
rule also does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (59 FR 22951, November 9, 2000), nor will it have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to affect the status of a geographical area,
does not impose any new requirements on sources, or allow the state to
avoid adopting or implementing other requirements, and does not alter
the relationship or the distribution of power and responsibilities
established in the Clean Air Act. This proposed rule also is not
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because
it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule proposing to approve the redesignation of the SNP area to
attainment for the 8-hour ozone NAAQS, the associated maintenance plan,
and the MVEBs identified in the maintenance plan, does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
This rule proposing to approve the redesignation of the Charleston
area to attainment for the 8-hour ozone NAAQS, the associated
maintenance plan, and the MVEBs identified in the maintenance plan,
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen Oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

Air pollution control, National Parks, Wilderness Areas.

Authority: 42 U.S.C. 7401 et seq.

Dated: April 24, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-6754 Filed 5-3-06; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
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2004
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Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the Charleston Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan

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