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Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the City of Weirton PM-10 Nonattainment Area to Attainment and Approval of the Maintenance Plan
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 11, 2006 (Volume 71, Number 91)]
[Proposed Rules]
[Page 27440-27447]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11my06-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2005-0480; FRL-8168-6]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Redesignation of the City of Weirton PM-10 Nonattainment
Area to Attainment and Approval of the Maintenance Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On May 24, 2004, the State of West Virginia submitted a
request that EPA redesignate the Weirton nonattainment area (Weirton
Area) to attainment for the national ambient air quality standards
(NAAQS) for particulate matter with an aerodynamic diameter less than
or equal to a nominal 10 micrometers (PM-10), and concurrently
requested approval of a limited maintenance plan (LMP) as a revision to
the West Virginia State Implementation Plan (SIP). In this action, the
EPA proposes to approve the LMP for the Weirton Area in West Virginia
and grant the State's request to redesignate the area from
nonattainment to attainment. EPA's proposed approval is based on its
determination that the area has met the criteria for redesignation for
attainment specified in the Clean Air Act (CAA). EPA is also proposing
to determine that, because the Weirton Area has continued to attain the
PM-10 NAAQS, certain attainment demonstration requirements, along with
other related requirements of the CAA, are not applicable to the
Weirton Area.
DATES: Written comments must be received on or before June 12, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-0480 by one of the following methods:
A. http://www.regulations.gov. 
Follow the online
instructions for submitting comments.
B. E-mail: Morris.makeba@epa.gov.
C. Mail: EPA-R03-OAR-2005-0480, Makeba Morris, Chief, Air Quality
Planning and Analysis Branch, Mailcode 3AP21, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
D. 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-
2005-0480. 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.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 http://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.
[[Page 27441]]
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 West Virginia Department
of Environmental Protection, Division of Air Quality, 601 57th Street,
SE., Charleston, WV 25304.
FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 814-2068, or by e-
mail at miller.linda@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' are used, we mean EPA.
Table of Contents
I. Background
A. What NAAQS Are Considered in Today's Rulemaking?
B. What is a State Implementation Plan (SIP)?
C. What are the Requirements for Redesignating a Nonattainment
Area to Attainment?
D. What is the Background of the SIP for the Weirton Area?
E. What are the Air Quality Characteristics of the Weirton Area?
II. Review of the West Virginia State Submittal Addressing the
Requirements for Redesignation
A. Does the Submittal Meet the Criteria for Redesignation?
1. Has the State Demonstrated that the Weirton Area has attained
the applicable NAAQS?
2. Does the Weirton Area have a fully approved SIP under Section
110(k) of the Act that meets all requirements applicable under
Section 110 and Part D of the Act for Purposes of Redesignation?
3. Clean Data Policy
4. Has the State Demonstrated that the Air Quality Improvement
is due to permanent and enforceable reductions?
III. Review of the Limited Maintenance Plan
A. What is a Maintenance Plan?
B. What is the LMP Option for PM-10 Nonattainment Areas seeking
Redesignation to Attainment
C. Does the Weirton Area Qualify for the LMP Option?
D. Does the LMP submitted meet all the requirements for a Fully
Approved Maintenance Plan?
E. Has the State met conformity requirements?
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What NAAQS Are Considered in Today's Rulemaking?
Particulate matter with an aerodynamic diameter less than or equal
to a nominal ten microns (PM-10) is the pollutant subject to this
action. The NAAQS are safety thresholds for certain ambient air
pollutants set to protect public health and welfare. PM-10 is among the
ambient air pollutants for which we have established such a health-
based standard. PM-10 causes adverse health effects by penetrating deep
in the lung, aggravating the cardiopulmonary system. Children, the
elderly, and people with asthma and heart conditions are the most
vulnerable. On July 1, 1987 (52 FR 24634) we revised the NAAQS for
particulate matter with an indicator that includes those particles with
an aerodynamic diameter less than or equal to a nominal 10 micrometers.
See 40 CFR 50.6. The annual primary PM-10 standard is 50 [mu]/m\3\ as
an annual arithmetic mean. The 24-hour primary PM-10 standard is 150
[mu]g/m3 with no more than one expected exceedance per year.
The secondary PM-10 standards, promulgated to protect against adverse
welfare effects, are identical to the primary standards.
B. What Is a State Implementation Plan (SIP)?
The Act requires states to attain and maintain ambient air quality
equal to or better than the NAAQS. Section 107(d)(1)(A)(I) of the Act
defines nonattainment area as any area that does not meet (or that
contributes to ambient air quality in a nearby area that does not meet)
the national primary or secondary ambient air quality standard for that
pollutant.
A state's strategy for attaining and maintaining the NAAQS are
outlined in the state implementation plan (SIP). The SIP is a planning
document that, when implemented, is designed to ensure the achievement
of the NAAQS by the applicable attainment date. The Act requires that
states make SIP revisions periodically, as necessary, to provide
continued compliance with the standards.
SIPs include, among other things, the following: (1) A current,
accurate and comprehensive inventory of emission sources; (2) statutes
and regulations adopted by the State Legislature and executive
agencies; (3) air quality analyses that include demonstrations that
adequate controls are in place to meet the NAAQS; and (4) contingency
measures to be undertaken if an area fails to attain the standard or
make reasonable progress toward attainment by the required date.
A state must make the SIP and subsequent revisions available for
public review and comment through a public hearing, it must be adopted
by the State, and submitted to EPA by the Governor or the Governor's
designee. EPA takes action to approve the SIP, thus rendering the rules
and regulations federally enforceable. The approved SIP is the state's
commitment to take actions that will reduce or eliminate air quality
problems. Any subsequent revisions to the SIP must go through the
formal SIP revision process specified in the Act.
C. What are the Requirements for Redesignating a Nonattainment Area to
Attainment?
Nonattainment areas can be redesignated to attainment after the
area has measured air quality data showing it has attained the NAAQS
and when certain additional requirements are met. Section 107(d)(3)(E)
of the Act provides the criteria for redesignation. These criteria are
further clarified in the ``General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990'' (57 FR 13498, April
16, 1992, as supplemented 57 FR 18070, April 28, 1992) (the General
Preamble), and in a guidance memorandum from John Calcagni, Director,
Air Quality Management Division, EPA Office of Air Quality Planning and
Standards dated September 4, 1992, ``Procedures for Processing Requests
to Redesignate Areas to Attainment, (Calcagni memo).'' The criteria for
redesignation are:
(1) A determination that the area has attained the applicable NAAQS;
(2) Full approval of the applicable SIP for the area under section
110(k) of the Act;
(3) The state containing the area has met all requirements
applicable to the area under section 110 and part D of the Act;
(4) A determination that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan, applicable
Federal air pollution control regulations, and other permanent and
enforceable reductions; and
(5) Full approval of a maintenance plan for the area as meeting the
requirements of section 175A of the Act.
D. What is the Background of the SIP for the Weirton Area?
The Weirton Area, consisting of Hancock County and part of Brooke
County, West Virginia, was designated
[[Page 27442]]
by EPA as a moderate PM-10 nonattainment area on December 21, 1993 (58
FR 67334).
On May 16, 2001 (66 FR 27034), EPA promulgated a final rule
entitled, ``Determination of Attainment of the NAAQS for PM-10 in the
Weirton, West Virginia Nonattainment Area'' finding that the Weirton
PM-10 nonattainment had attained the NAAQS for PM-10 by its applicable
December 31, 2000 attainment date.
In order to be redesignated from nonattainment to attainment, West
Virginia requested that EPA apply its clean data policy to the Weirton
Area in a letter dated October 14, 2003. West Virginia submitted a
request to redesignate the Weirton Area to attainment for PM-10 and a
SIP submittal for the related maintenance plan on May 24, 2004.
EPA published a direct final rule (DFR) and notice of proposed
rulemaking (NPR) in which we determined that certain attainment
demonstration requirements, along with other related requirements of
the Act, are not applicable to the Weirton Area. In the same October
27, 2004 DFR and NPR, EPA also approved the request from the State of
West Virginia to redesignate the Weirton Area from nonattainment to
attainment of the NAAQS for PM-10, and to approve the 10-year
maintenance plan for the area submitted by the WVDEP as a revision to
the West Virginia SIP. (October 27, 2004, 69 FR 62591 and 69 FR 62637).
EPA published a correcting amendment to the DFR and NPR on November
9, 2004 (69 FR 64860) to include additional explanation of why motor
vehicle emissions do not contribute significantly to any nonattainment
with the PM-10 NAAQS in the Weirton Area.
EPA received adverse comments on the October 27, 2004 DFR/NPR from
one commenter. Therefore, EPA withdrew the DFR on December 20, 2004 (69
FR 75847). The withdrawal of the DFR converted EPA's action to a
proposal based on the October 27, 2004 NPR. In a separate rulemaking in
today's Federal Register, EPA is withdrawing the October, 27 2004 NPR
and the November 9, 2004 amendment thereto, and issuing this current
proposal. Because we are withdrawing the earlier action, we will not
respond to the comments received on the withdrawn DFR and NPR. Any
person wishing to comment on this current proposal must submit comments
pursuant to the instructions given in this notice of proposed rulemaking.
E. What are the Air Quality Characteristics of the Weirton Area?
The primary years used by EPA for the purposes of establishing PM-
10 designations and classifications were 1987 to 1989. For this base
year period, the Weirton Area 24-hour average PM-10 design value was
198 [mu]g/m3. This value exceeded the NAAQS of 150 [mu]g/
m3. The Weirton Area has never exceeded the annual average
standard of 50 [mu]g/m3. As provided in the WV SIP
submittal, for the 2000 to 2002 period, the comparable 24-hour average
design value is 112 [mu]g/m3 and the PM-10 annual average
design value is 32 [mu]g/m. Both values meet the NAAQS. Based on the
certified ambient air quality data through the close of calendar year
2005, EPA proposes to determine that the area continues to attain the
PM-10 NAAQS. Furthermore, there have been no recorded exceedances of
the 24-hour PM-10 standard or the annual PM-10 standard from 1997
through the end of 2005 in the Weirton Area, and the highest annual
value in the Weirton area for the years 2003-2005 is 29 [mu]g/
m3. See also the discussion in Section II.A.1. and the
technical support document (TSD) accompanying this rulemaking.
II. Review of the West Virginia Submittal Addressing the Requirements
for Redesignation
A. Does the Submittal Meet the Criteria for Redesignation?
1. Has the State demonstrated that the Weirton Area has attained the
applicable NAAQS?
States must demonstrate that an area has attained the PM-10 NAAQS
through analysis of ambient air quality data from an ambient air
monitoring network representing peak PM-10 concentrations. The data
should be stored in the EPA Air Quality System (AQS) database. The 24-
hour PM-10 NAAQS is 150 [mu]g/m3. An area has attained the
24-hour standard when the average number of expected exceedences per
year is less than or equal to one, when averaged over a three-year
period (40 CFR 50.6). To make this determination, three consecutive
years of complete ambient air quality data must be collected in
accordance with Federal requirements (40 CFR part 58, including
appendices). The annual PM-10 NAAQS is 50 [mu]g/m3. To
determine attainment, the standard is compared to the expected annual
mean, which is the average of the weighted annual mean for three
consecutive years. More detailed monitoring data is available in the TSD.
EPA previously determined in ``A Determination of Attainment of the
NAAQS for PM-10 in the Weirton, West Virginia Nonattainment Area'' on
May 16, 2001 (66 FR 27034) that the area had attained the PM-10 NAAQS.
As previously stated, the most recent air quality monitoring continues
to support this determination. Thus, EPA proposes to determine that the
Weirton Area has satisfied the criterion of section 107(d)(3)(E)(I)
that the area has attained the PM-10 NAAQS.
2. Does the Weirton Area have a Fully Approved SIP under section 110(k)
of the Act that meets all requirements applicable under section 110 and
Part D for Purposes of Redesignation?
In order to qualify for redesignation, the SIP must satisfy all
requirements that apply to the area for purposes of redesignation. EPA
interprets the Act to require state adoption and EPA approval of the
requirements applicable for purposes of redesignation under section 110
and part D before EPA may approve a redesignation request. Thus in
order to qualify for redesignation, the SIP for the area must be fully
approved under section 110(k) with respect to all requirements that
apply to the area for purposes of redesignation.
As we explain more fully in later sections of this action, EPA has
determined that West Virginia has met all SIP requirements applicable
for purposes of redesignation under section 110 of the CAA and has also
determined that the West Virginia SIP meets requirements applicable for
purposes of redesignation under Part D, Title I of the CAA. EPA has
analyzed the SIP codified at 40 CFR part 52, subpart XX, and determined
that it is consistent with the requirements of section 110 applicable
for purposes of redesignation.
The air quality planning requirements for moderate PM-10
nonattainment areas under part D of Title I of the CAA are set out in
subparts 1 and 4. Subpart 1 of part D, found in sections 172-176 of the
CAA, sets forth the basic requirements applicable to all nonattainment
areas. Subpart 4 of part D, found in section 189 of the CAA,
establishes additional specific requirements for PM-10 areas depending
upon the area's nonattainment classification. For purposes of
evaluating the redesignation request, EPA is proposing to determine
that these applicable requirements have been met for the reasons
discussed in later sections of this notice.
The Part D provisions that the Weirton Area must evaluate prior to
redesignation as attainment include an emissions inventory, conformity, a
[[Page 27443]]
permit program for new and modified stationary sources (called new
source review or NSR), Reasonably Available Control Measure (RACM)
requirements contained in sections 172 and 189 of the Act), a
demonstration of reasonable further progress (RFP) toward attainment,
an attainment demonstration, and contingency measures. We address how
the Weirton Area has met the RACM, RFP, attainment demonstration and
contingency measure requirements in the next section of this notice
(Clean Data Policy).
With respect to the emissions inventory requirement, the Calcagni
memo notes that the requirements for an emission inventory will be
satisfied by the inventory requirements of the maintenance plan. An
attainment year emissions inventory for the Weirton Area has been included
in the maintenance plan, and thus this requirement has been satisfied.
With respect to the conformity requirement, section 176(c) of the
CAA requires states to establish criteria and procedures to ensure the
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 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 a redesignation
request under section 107(d) because state conformity rules are still
required after redesignation and federal conformity rules apply where
state rules have not been approved. See Wall v. EPA, 265F 3d 426 (6th
Cir. 2001), upholding this interpretation. See, also, 60 FR 62748
(December 7, 1995).
With respect to the NSR program requirement, EPA has determined
that areas being redesignated need not have an approved NSR program
prior to redesignation, provided that the area demonstrates maintenance
of the standard without Part D NSR in effect. The rationale for this
view is described in a memorandum for Mary Nichols, Assistant
Administrator for Air and Radiation, dated October 14, 1994, entitled
``Part D New Source Review Requirements of Areas Requesting
Redesignation to Attainment.'' The State has demonstrated that the area
will be able to maintain the standard without Part D NSR in effect, and
therefore the State need not have a fully approved Part D NSR program
prior to approval of the redesignation request. The State's Prevention
of Significant Deterioration (PSD) program will become effective in the
area upon redesignation to attainment. Detroit, MI (60 FR 12467-12468,
March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-20470,
May 7, 1996); Louisville, KY (66 FR 53665, October 23 2001); Grand
Rapids, MI (61 FR 31834-31837, June 21, 1996).
3. Clean Data Policy
In some designated nonattainment areas, monitored data demonstrates
that the NAAQS has already been achieved. Based on its interpretation
of the Act, EPA has determined that certain requirements of part D,
subpart 1 and 2 of the Act do not apply and therefore do not require
certain submissions for an area that has attained the NAAQS. These
include reasonable further progress (RFP) requirements, attainment
demonstrations and contingency measures, because these provisions have
the purpose of helping achieve attainment of the NAAQS.
The so-called Clean Data Policy is the subject of two EPA memoranda
setting forth our interpretation of the provisions of the Act as they
apply to areas that have attained the relevant NAAQS. EPA also
finalized the statutory interpretation set forth in the policy in a
final rule, 40 CFR 51.918, as part of its Final Rule to Implement the
8-hour Ozone National Ambient Air Quality Standard--Phase 2 (Phase 2
Final Rule). See discussion in the preamble to the rule at 70 FR 71645-
71646 (November 29, 2005). EPA believes that the legal bases set forth
in detail in our Phase 2 Final rule, our May 10, 1995 memorandum from
John S. Seitz, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard'' (Seitz memo),
and our December 14, 2004 memorandum from Stephen D. Page entitled
``Clean Data Policy for the Fine Particle National Ambient Air Quality
Standards'' (Page memo), are equally pertinent to the interpretation of
provisions of subparts 1 and 4 applicable to PM-10. EPA's
interpretation of how the provisions of the Act apply to areas with
``clean data'' is not logically limited to ozone and PM-2.5, because
the rationale is not dependent upon the type of pollutant. Our
interpretation that an area that is attaining the standard is relieved
of obligations to demonstrate reasonable further progress (RFP) and to
provide an attainment demonstration and contingency measures pursuant
to part D of the CAA, pertains whether the standard is PM-10, ozone or
PM-2.5.
The reasons for relieving an area that has attained the relevant
standard of certain part D, subpart 1 and 2 (sections 171 and 172)
obligations, applies equally as well to part D, subpart 4, which
contains specific attainment demonstration and RFP provisions for PM-10
nonattainment areas. As we have explained in the Phase 2 Final Rule and
our ozone and PM-2.5 clean data memoranda, EPA believes it is
reasonable to interpret provisions regarding RFP and attainment
demonstrations, along with related requirements, so as not to require
SIP submissions if an area subject to those requirements is already
attaining the NAAQS (i.e., attainment of the NAAQS is demonstrated with
three consecutive years of complete, quality-assured air quality
monitoring data). Three U.S. Circuit Courts of Appeals have upheld EPA
rulemakings applying its interpretation of subparts 1 and 2 with
respect to ozone. Sierra Club v. EPA, 99F.3d 1551 (10th Cir. 1996);
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's Earth
Foundation v. EPA, N. 04-73032 (9th Cir. June 28, 2005) (memorandum
opinion). It has been EPA's longstanding interpretation that the
general provisions of part D, subpart 1 of the Act (sections 171 and
172) do not require the submission of SIP revisions concerning RFP for
areas already attaining the ozone NAAQS. In the General Preamble, we stated:
[R]equirements for RFP will not apply in evaluating a request
for redesignation to attainment, since, at a minimum, the air
quality data for the area must show that the area has already
attained. A showing that the State will make RFP toward attainment
will, therefore, have no meaning at that point. 57 FR at 13564.
EPA believes the same reasoning applies to the PM-10 provisions of
part D, subpart 4.
With respect to RFP, section 171(1) states that, for purposes of
part D of title I, RFP ``means such annual incremental reductions in
emissions of the relevant air pollutant as are required by this part or
may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable NAAQS by the applicable date.''
Thus, whether dealing with the general RFP requirement of section
172(c)(2), the ozone-specific RFP requirements of
[[Page 27444]]
sections 182(b) and (c), or the specific RFP requirements for PM-10
areas of part D, subpart 4, section 189(c)(1), the stated purpose of
RFP is to ensure attainment by the applicable attainment date. Section
189(c)(1) states that:
Plan revisions demonstrating attainment submitted to the
Administrator for approval under this subpart shall contain
quantitative milestones which are to be achieved every 3 years until
the area is redesignated attainment and which demonstrate reasonable
further progress, as defined in section 7501(l) of this title,
toward attainment by the applicable date.
Although this section states that revisions shall contain
milestones which are to be achieved until the area is redesignated to
attainment, such milestones are designed to show reasonable further
progress ``toward attainment by the applicable date'', as defined by
section 171. Thus it is clear that once the area has attained the
standard, no further milestones are necessary or meaningful. This
interpretation is supported by language in section 189(c)(3), which
mandates that a state that fails to achieve a milestone must submit a
plan that assures that the state achieve the next milestone or attain
the NAAQS if there is no next milestone. Section 189(c)(3) assumes that
the requirement to submit and achieve milestones does not continue
after attainment of the NAAQS.
If an area has in fact attained the standard, the stated purpose of
the RFP requirement will have already been fulfilled.\1\ EPA took this
position with respect to the general RFP requirement of section
172(c)(2) in the April 16, 1992 General Preamble and also in the May
10, 1995 memorandum with respect to the requirements of sections
182(a)(b) and (c). We are extending that interpretation to the specific
provisions of part D, subpart 4. In the General Preamble, we stated, in
the context of a discussion of the requirements applicable to the
evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point.'' (57 FR at
13564). See also Calcagni memo, p.6.
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\1\ Thus we believe that it is a distinction without a
difference that section 189(c)(1) speaks of the RFP requirement as
one to be achieved until an area is ``redesignated as attainment'',
as opposed to section 172(c)(2), which is silent on the period to
which the requirement pertains, or the ozone nonattainment area RFP
requirements in sections 182(b)(1) or 182(c)(2), which refer to the
RFP requirements as applying until the ``attainment date'', since,
section 189(c)(1) defines RFP by reference to section 171(l) of the
Act. Reference to 171(l) clarifies that, as with the general RFP
requirements in section 172(c)(2) and the ozone-specific
requirements of section 182(b)(1) and 182(c)(2), the PM-specific
requirements may only be required ``for the purpose of ensuring
attainment of the applicable national ambient air quality standard
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in
the text of this rulemaking, EPA interprets the RFP requirements, in
light of the definition of RFP in section 171(l), and incorporated
in section 189(c)(1), to be a requirement that no longer applies
once the standard has been attained.
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With respect to the attainment demonstration requirements of
section 189(a)(1)(B) an analogous rationale leads to the same result.
Section 189(a)(1)(B) requires that the plan provide for ``a
demonstration (including air quality modeling) that the [SIP] will
provide for attainment by the applicable attainment date.* * *'' As
with the RFP requirements, if an area is already monitoring attainment
of the standard, EPA believes there is no need for an area to make a
further submission containing additional measures to achieve
attainment. This is also consistent with the interpretation of the
section 172(c) requirements provided by EPA in the General Preamble,
the Page memo and of the section 182(b) and (c) requirements set forth
in the Seitz memo. As EPA stated in the General Preamble, no other
measures to provide for attainment would be needed by areas seeking
redesignation to attainment since ``attainment will have been
reached.'' (57 FR at 13564).
Other SIP submission requirements are linked with these attainment
demonstration and RFP requirements, and similar reasoning applies to
them. These requirements include the contingency measure requirements
of sections 172(c)(9) and 182(c)(9). We have interpreted the
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as
no longer applying when an area has attained the standard because those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564); Seitz memo, pp. 5-6.
Both sections 172(c) and 189(a)(1)(c) require ``provisions to
assure that reasonable available control measures'' (i.e, RACM) are
implemented in a nonattainment area. However, the Weirton Area was able
to attain the PM-10 NAAQS without any additional measures being
implemented. The General Preamble, 57 FR 13560 (April 16, 1992) states
that EPA interprets section 172(c)(1) so that RACM requirements are a
``component'' of an area's attainment demonstration. Thus, for the same
reason the attainment demonstration no longer applies by its own terms,
the requirement for RACM no longer applies. EPA has consistently
interpreted this provision to require only implementation of potential
RACM measures that could contribute to reasonable further progress or
to attainment. General Preamble, 57 FR at 13498. Thus, where an area is
already attaining the standard, no additional RACM measures are
required.\2\ EPA is interpreting section 189(a)(1)(c) consistent with
its interpretation of section 172(c)(1). Therefore, there is no
requirement for the West Virginia SIP to contain RACM for the Weirton
Area in order for EPA to redesignate that area as attainment for the
PM-10 NAAQS.
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\2\ The EPA's interpretation that the statute only requires
implementaion of RACM measures that would advance attainment was
upheld by the United States Court of Appeals for the Fifth Circuit
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002)), and by
the United States Court of Appeals for the D.C. Circuit (Sierra Club
v. EPA, 294 F3d 155, 162-163 (D.C. Cir. 2002)).
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Here, as in both our Phase 2 final rule and ozone and PM-2.5 clean
data memoranda, we emphasize that the suspension of a requirement to
submit SIP revisions concerning these RFP, attainment demonstration,
RACM, and other related requirements exists only for as long as a
nonattainment area continues to monitor attainment of the standard. If
such an area experiences a violation of the NAAQS, the basis for the
requirements being suspended would no longer exist. Therefore, the area
would again be subject to a requirement to submit the pertinent SIP
revision or revisions and would need to address those requirements.
Thus, a determination that an area need not submit one of the SIP
submittals amounts to no more than a suspension of the requirement for
so long as the area continues to attain the standard. However, once EPA
ultimately redesignates the area to attainment, the area will be
entirely relieved of these requirements to the extent the maintenance
plan for the area does not rely on them.
Therefore, we believe that, for the reasons set forth here and
established in our prior ``clean data'' memoranda and rulemakings, a
PM-10 nonattainment area that has ``clean data,'' should be relieved of
the part D, subpart 4 obligations to provide an attainment
demonstration pursuant to section 189(a)(1)(B) the RACM provisions of
189(a)(1)(c), and the RFP provisions established by section 189(c)(1)
of the Act, as well as the aforementioned attainment demonstration,
RACM, RFP and contingency measure provisions of
[[Page 27445]]
part D, subpart 1 contained in section 172 of the Act.\3\
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\3\ In prior rulemakings involving the Clean Data Policy and PM-
10, EPA has applied criteria in addition to that of attainment of
the standard. See e.g., 67 FR 43020 (June 26, 2002). EPA does not
believe that those additional criteria are required by statute or
are necessary for application of the policy for PM-10 areas, and
does not employ them in applying the policy to ozone and
PM2.5 areas. EPA intends to make its application of the
policy consistent for ozone, PM-10, and PM2.5, and does
not intend to require an area to meet additional criteria for PM-10.
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Should EPA at some future time determine that an area that had
clean data, but which has not yet been redesignated as attainment for a
NAAQS has violated the relevant standard, the area would again be
required to submit the pertinent requirements under the SIP for the
area. Attainment determinations under the policy do not shield an area from
other required actions, such as provisions to address pollution transport.
As set forth, above, EPA proposes to find that because the Weirton
Area has continued to attain the NAAQS the requirement of an attainment
demonstration, reasonable further progress, reasonably available
control measures and contingency measures no longer apply.
Thus, EPA has determined that all provisions of CAA section 110 and
part D applicable to the Weirton Area for purposes of redesignation
have been approved into the West Virginia SIP.
4. Has the State demonstrated that the air quality improvement is due
to permanent and enforceable reductions?
The State must be able to reasonably attribute the improvement in
air quality to permanent and enforceable emission reductions. In making
this showing, the State must demonstrate that air quality improvements
are the result of actual enforceable emission reductions. The control
measures for the area, which were responsible for bringing the area
into attainment, are contained in a Consent Order (CO) between the
State of West Virginia and the Weirton Steel Corporation. The control
measures and emission limits established in the CO were made permanent
and enforceable when EPA approved them into the West Virginia SIP on
May 5, 2004 (69 FR 24986). These control measures resulted in a
reduction of 1345.5 tons per year of allowable PM-10 emissions and a
reduction of 886 tons per year of actual PM-10 emissions. EPA approved
these measures as RACT in the West Virginia SIP on May 4, 2004 (69 FR
24986).
III. Review of the Limited Maintenance Plan
A. What is a Maintenance Plan?
As discussed in section II of this action, to be redesignated to
attainment, the Weirton Area is required to have a fully approved
maintenance plan under section 175A of the CAA. A maintenance plan
should identify the level of air emissions from cars, industry and
other sources which is sufficient to attain the NAAQS. The State must
commit to re-evaluate the maintenance plan. The plan must also show
that the area will maintain clean air for at least 10 years after
redesignation. Additionally, the plan must include a list of
contingency measures to be implemented should the NAAQS be violated.
The requirements for the contingency measures is found in paragraph (d)
of CAA section 175A.
B. What is the LMP Option for PM-10 Nonattainment Areas Seeking
Redesignation to Attainment
On August 9, 2001, EPA issued guidance on streamlined maintenance
plan provisions for certain moderate PM-10 nonattainment areas seeking
redesignation to attainment (Memorandum from Lydia Wegman, Director,
Air Quality Standards and Strategies Division, entitled ``Limited
Maintenance Plan Option for Moderate PM-10 Nonattainment Areas'',
(Wegman memo). The Wegman memo contains a statistical demonstration
that areas meeting certain air quality criteria will, with a high
degree of probability, maintain compliance with the standard 10 years
into the future. Thus, EPA has already provided the maintenance
demonstration for areas that meet the air quality criteria outlined in
the Wegman memo. The Wegman memo streamlines the full maintenance plan
requirements and establishes the LMP option. The LMP option does not
require air quality modeling estimates that clean air can be
maintained, a projection of emissions into the future, or some of the
standard analyses to determine conformity with the air quality
standards. The Wegman memo identifies core provisions that must be
included in the LMP. These provisions include an attainment year
emission inventory, assurance of continued operation of an EPA-approved
air quality monitoring network, and contingency provisions.
C. Does the Weirton Area qualify for the LMP option?
To qualify for the LMP option, the area must have attained the PM-
10 NAAQS, and the average annual PM-10 design value for the area, based
upon the most recent 5 years of air quality data at all monitors in the
area, should be at or below 40 [mu]g/m3, and the 24 hour design value
should be at or below 98 [mu]g/m3. If an area cannot meet this test, it
may still be able to qualify for the LMP Option if the average design
value (ADV) for the site is less than the site-specific critical design
values (CDV) (as those terms are used in the Wegman memo). In addition,
the area should expect only limited growth in on-road motor vehicle PM-
10 emissions (including fugitive dust) and should have passed a motor
vehicle regional emissions analysis test.
To show that future emissions will not exceed the level of the
attainment inventory, the WVDEP determined the CDV. The CDV is a
statistical technique based upon the average design value and its
observed variability to estimate the probability of exceeding the NAAQS
in the future.
When applied specifically to the Weirton Area 24-hour data for the
years 2000 through 2004, the CDV is 137 [mu]g/m3. The actual 5-year average
design value for the Weirton Area is 96.8 [mu]g/m3 which is below the
level of 98 [mu]g/m3 established for the LMP option. Furthermore, the
maximum site average design value of 105.2 [mu]g/m3 is less than the area-
specific CDV of 137 [mu]g/m3.
There is no expected population growth in the Weirton Area. The
impact of vehicle emissions in the Weirton Area has been determined to
be an insignificant contributor to PM-10 nonattainment in the area.
Details can be found in the TSD.
Based on our foregoing analysis, we have determined that the
Weirton Area qualifies for use of the LMP option.
D. Does the LMP Submitted Meet all the Requirements for a Fully
Approved Maintenance Plan?
The Weirton Area meets the criteria for using a LMP for
redesignation. The LMP does not require a modeling demonstration to
show maintenance of the NAAQS. A projected emissions inventory is also
not required. The LMP does require the following:
1. An attainment year emissions inventory
2. Assurance of continued operation of an EPA-approved air quality
monitoring network
3. Contingency provisions.
The LMP for the Weirton Area, dated May 24, 2004 includes the
necessary provisions for approval. Specifically, it contains the following:
1. Attainment Year Emission Inventory
In the May 24, 2004 submittal, an inventory of allowable emissions of
[[Page 27446]]
sources in the nonattainment area was included in the maintenance plan.
This inventory will be approved into the SIP as part of the LMP. The
inventory is presented in the TSD.
2. Continued Operation of Air Quality Monitoring Network
The LMP includes a commitment to continue to monitor PM-10 in the
Weirton Area throughout the 10-year term of the maintenance plan to
verify continued attainment of the NAAQS. The monitoring procedures
will be determined in accordance with 40 CFR parts 53 and 58.
3. Contingency Measures
Pursuant to section 175A of the Act, 42 U.S.C. 7505A, a maintenance
plan must include such contingency measures, as EPA deems necessary, to
promptly correct any violation of the NAAQS which may occur after
redesignation of the area to attainment. As explained in the Wegman and
Calcagni memos, these contingency measures do not have to be fully
adopted at the time of redesignation.
The State will rely on monitored ambient air data to determine the
need to implement contingency measures. In the event of an exceedance
of the PM-10 standard, the State will review the monitored data, the
local meteorological data, and the compliance of certain local
facilities identified in the maintenance plan. If all such facilities
are in compliance with applicable SIP and permit emission limits, the
State will then determine the additional control measures the state
will need to impose on the area's stationary sources in order to
continue to maintain the NAAQS.
In the event of three exceedances of the 24-hour PM-10 standard
within a three-year period, the State will notify the stationary
sources in the Weirton Area that the potential exists for a NAAQS
violation, and that if a violation occurs, these sources will need to
implement the measures previously identified. Within six months of
receiving notice from the State, the stationary sources must submit a
detailed plan of action to WVDEP to implement the identified additional
control measures within 18 months after the state notifies the source
of an actual violation of the NAAQS. The sources' additional control
measure plans will be submitted to EPA for approval and incorporation
into the SIP.
E. Has the State met Conformity Requirements?
As we stated previously in this notice, EPA believes the conformity
SIP requirements do not apply for purposes of evaluating a
redesignation request, because conformity rules are still required
after redesignation and Federal conformity rules apply where state
rules have not been approved. The transportation conformity rule (40
CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51
and 93) apply to nonattainment areas and maintenance areas covered by
an approved maintenance plan. Under either conformity rule, an
acceptable method of demonstrating that a Federal action conforms to
the applicable SIP is to demonstrate that expected emissions from the
planned action are consistent with the emissions budget for the area.
While EPA's LMP policy does not exempt an area from the need to
demonstrate conformity, it explains that the area may demonstrate
conformity without submitting an emissions budget. Under the LMP
policy, emissions budgets are treated as essentially not constraining
for the length of the maintenance period because it is unreasonable to
expect that the qualifying areas would experience so much growth in
that period that a violation of the PM-10 NAAQS would result. For
transportation conformity purposes, EPA concludes that mobile source
emissions in these areas need not be capped at any level for the
maintenance period, and therefore the requirement for a regional
emissions analysis would be considered to be met. Similarly, Federal
actions subject to the general conformity rule could be considered to
satisfy the ``budget test'' specified in Sec. 93.158(a)(5)(i)(A) for the
same reasons that the budgets are essentially considered to be unlimited.
For Federal actions which are required to address the specific
requirements of the general conformity rule, one set of requirements
applies particularly to ensuring that emissions from the action will
not cause or contribute to new violations of the NAAQS, exacerbate
current violations, or delay timely attainment. One way that this
requirement can be met is to demonstrate that ``the total of direct and
indirect emissions from the action (or portion thereof) is determined
and documented by the State agency primarily responsible for the applicable
SIP to result in a level of emissions which, together with all other
emissions in the nonattainment area, would not exceed the emissions
budgets specified in the applicable SIP.'' 40 CFR 93.158(a)(5)(i)(A).
The decision about whether to include specific allocations of
allowable emissions increases to sources is one made by the State and
local air quality agencies. These emissions budgets are not the same as
those used in transportation conformity. Emissions budgets in
transportation conformity are required to limit and restrain emissions.
Emissions budgets in general conformity allow increases in emissions up
to specified levels. West Virginia has chosen not to include specific
emissions allocations for Federal projects that would be subject to the
provisions of general conformity.
While areas with maintenance plans approved under the LMP option
are thus essentially not subject to the budget test, the areas remain
subject to other transportation conformity requirements of 40 CFR part
93, subpart A. Thus, the metropolitan planning organization (MPO) in
the area or the State will still need to document and ensure that: (a)
Transportation plans and projects provide for timely implementation of
SIP transportation control measures in accordance with 40 CFR 93.113;
(b) transportation plans and projects comply with the fiscal constraint
element per 40 CFR 93.108; (c) the MPO's interagency consultation
procedures meet applicable requirements of 40 CFR 93.105; (d)
conformity of transportation plans is determined no less frequently
than every four years, and conformity of plan amendments and
transportation projects is demonstrated in accordance with the timing
requirements specified in 40 CFR 93.104; (e) the latest planning
assumptions and emissions model are used as set forth in 40 CFR 93.110
and 40 CFR 93.111; (6) projects do not cause or contribute to any new
localized carbon monoxide or particulate matter violations, in
accordance with procedures specified in 40 CFR 93.123; and, (7) project
sponsors and/or operators provide appropriate written commitments as
specified in 40 CFR 93.125.
IV. Proposed Action
Based on the foregoing analysis, we have determined that the
Weirton Area fulfills the criteria for redesignation as attainment with
the PM-10 NAAQS. EPA has determined that the submitted maintenance plan
meets the requirements of the Act, and the Weirton Area fulfills the
criteria for redesignation to attainment for the PM-10 NAAQS based on
the State's May 24, 2004 submission. EPA is proposing to determine that
the area has continued to attain the PM-10 NAAQS and to determine that
certain attainment demonstration requirements, along with other related
requirements of part D title I of the CAA as set forth above, are not
applicable to the area. EPA is proposing to redesignate the Weirton PM-10
[[Page 27447]]
moderate nonattainment area to attainment and to approve the West
Virginia SIP revision for the 10-year maintenance plan for the Weirton
Area, submitted on May 24, 2004. EPA is soliciting public comments on
the issues discussed in this document. These comments will be
considered before taking final action.
V. 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. 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 proposed rule to redesignate the Weirton Area to attainment
with the PM-10 NAAQS and approve the LMP as a SIP revision 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, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air Pollution Control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 3, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-7216 Filed 5-10-06; 8:45 am]
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