Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the West Virginia Portion of the Wheeling, WV-OH 8-Hour Ozone 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: October 2, 2006 (Volume 71, Number 190)]
[Proposed Rules]
[Page 57894-57905]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02oc06-18]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2006-0682; FRL8226-1]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Redesignation of the West Virginia Portion of the
Wheeling, WV-OH 8-Hour Ozone Nonattainment Area to Attainment and
Approval of the Maintenance Plan

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

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve a redesignation request and a
State Implementation Plan (SIP) revision for the West Virginia portion
of the Wheeling, WV-OH interstate area (herein referred to as the
``Area'') from nonattainment to attainment of the 8-hour ozone National
Ambient Air Quality Standard (NAAQS). The West Virginia Department of
Environmental Protection (WVDEP) is requesting that the Marshall and
Ohio County, West Virginia (Wheeling) portion of the area be
redesignated as attainment for the 8-hour ozone NAAQS. The interstate
8-hour ozone nonattainment area is comprised of three counties
(Marshall and Ohio Counties, West Virginia (Wheeling) and Belmont
County, Ohio (Belmont)). EPA is proposing to approve the ozone
redesignation request for the Wheeling portion of the area. In
conjunction with its redesignation request, the WVDEP submitted a SIP
revision consisting of a maintenance plan for Wheeling that provides
for continued attainment of the 8-hour ozone NAAQS for the next 12
years. EPA is proposing to make a determination that Wheeling 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 Wheeling 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 Wheeling maintenance plan 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 November 1, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0682 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-2006-0682, Makeba Morris, Chief, Air Quality
Planning Branch
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-
2006-0682. 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

[[Page 57895]]

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 Wheeling Maintenance Plan Adequate and Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews

I. What Actions Are EPA Proposing To Take?

On July 24, 2006, WVDEP formally submitted a request to redesignate
Wheeling from nonattainment to attainment of the 8-hour NAAQS for
ozone. On July 24, 2006, West Virginia submitted a maintenance plan for
Wheeling as a SIP revision, to ensure continued attainment over the
next 12 years. Wheeling is comprised of Marshall and Ohio Counties.
Wheeling is currently designated as a basic 8-hour ozone nonattainment
area. EPA is proposing to determine that Wheeling 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 Wheeling from nonattainment to attainment for the 8-hour
ozone NAAQS. EPA is also proposing to approve the maintenance plan SIP
revision for Wheeling, such approval being one of the CAA requirements
for approval of a redesignation request. The maintenance plan is
designed to ensure continued attainment throughout Wheeling for the
next 12 years. Additionally, EPA is announcing its action on the
adequacy process for the MVEBs identified in the Wheeling maintenance
plan, and proposing to approve the MVEBs identified for volatile
organic compounds (VOC) and nitrogen oxides (NO_X) for
transportation conformity purposes. These MVEBs are state MVEBs for the
West Virginia portion of the Area. In a separate redesignation request,
the State of Ohio is establishing MVEBs and requesting redesignation to
attainment for the remainder of the Area (i.e., Belmont County).

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
Area was designated as basic 8-hour ozone nonattainment status in a
Federal Register notice signed on April 15, 2004 and published on April
30, 2004 (69 FR 23857). On June 15, 2005 (69 FR at 23996), the 1-hour
ozone NAAQS was revoked in the Area (as well as most other areas of the
country). See 40 CFR 50.9(b); 69 FR at 23996 (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 a
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
subpart 2 requirements). All other areas are covered under subpart 1,
based upon their 8-hour design values. In 2004, the 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 concentrations 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 indicates that the area has a design value of 0.078 ppm
for the 3-year period of 2002-2004 and a design value of

[[Page 57896]]

design value of 0.076 ppm for the 3-year period of 2003-2005.
Therefore, the ambient ozone data for the area indicates no violations
of the 8-hour ozone standard. Final monitoring data for 2005 indicates
continued attainment of the 8-hour ozone standard in the area.

B. The Wheeling, WV-OH Area

The Area consists of Marshall and Ohio Counties, West Virginia and
Belmont County, Ohio. Prior to its designation as an 8-hour ozone
nonattainment area, the Area was an attainment/unclassifiable area for
the 1-hour ozone nonattainment NAAQS. See 56 FR 56694 (November 6, 1991).
On July 24, 2006, the WVDEP requested that Wheeling 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 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 (TSD's) 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 July 24, 2006, the WVDEP requested redesignation of Wheeling to
attainment for the 8-hour ozone standard. On July 24, 2006, the WVDEP
submitted a maintenance plan for Wheeling as a SIP revision, to assure
continued attainment over the next 12 years, until 2018. EPA has
determined that Wheeling 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 Wheeling 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 Wheeling 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
MVEBs for NO_X and VOC for transportation conformity purposes
for the years 2004, 2009 and 2018. These motor vehicle emissions (2004)
and MVEBs (2009 and 2018) are displayed in the following table:

Table 1.--Motor Vehicle Emissions Budgets in Tons per Day (tpd)
------------------------------------------------------------------------
Year NOX VOC
------------------------------------------------------------------------
2004.................................................... 4.7 2.8
2009.................................................... 4.3 2.5
2018.................................................... 1.7 1.4
------------------------------------------------------------------------

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

EPA is proposing to determine that Wheeling 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 July 24, 2006
submittal satisfies the requirements of section 107(d)(3)(E) of the CAA.

A. The Wheeling, WV-OH Area Has Attained the 8-Hour Ozone NAAQS

EPA is proposing to determine that the Area has attained the 8-hour
ozone NAAQS. For ozone, an area may be considered to be attaining the
8-hour

[[Page 57897]]

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 Air Quality
System (AQS). The monitors generally should have remained at the same
location for the duration of the monitoring period required for
demonstrating attainment.
In the area there is one ozone monitor, located in Ohio County,
West Virginia that measures air quality with respect to ozone.\1\ As
part of its redesignation request, West Virginia submitted ozone
monitoring data for the years 2000-2005 for the area. This data has
been quality assured and is recorded in AQS. The fourth high 8-hour
daily maximum concentrations, along with the three-year averages, are
summarized in Table 2.
---------------------------------------------------------------------------

\1\ While this monitor has been relocated twice, it remains
within five miles of its original location. Statistical analysis
indicates that the ozone monitoring sites have maintained the
integrity of the 8-hour NAAQS. (See Technical Support Document (TSD).)

Table 2.--Wheeling, WV-OH Fourth Highest 8-Hour Average Values; Ohio
County Monitor, AQS ID 54-069-0007
------------------------------------------------------------------------
Annual 4th high reading
Year (ppm)
------------------------------------------------------------------------
2000.......................................... 0.071
2001.......................................... 0.088
2002.......................................... 0.097
2003.......................................... 0.076
2004.......................................... 0.063
2005.......................................... 0.089
------------------------------------------------------------------------
The average for the 3-year period 2002 through 2004 is 0.078 ppm.
The average for the 3-year period 2003 through 2005 is 0.076 ppm.
------------------------------------------------------------------------

The air quality data for 2002-2004 show that the entire area has
attained the standard with a design value of 0.078 ppm. Also, the air
quality data for 2003-2005 show that the entire area is still attaining
the 8-hour standard with a design value of 0.076 ppm. The data
collected at the Ohio County 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 Wheeling indicates that the data
was quality assured in accordance with 40 CFR part 58. The WVDEP uses
AQS 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 and data taken
from AQS indicates that the area has attained the 8-hour ozone NAAQS.

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

EPA has determined that Wheeling has met all SIP requirements
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 Wheeling, and determined that the
applicable portions of the SIP 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 came 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 submittal of a complete redesignation request for an
area 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

[[Page 57898]]

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. West Virginia and Ohio will still be subject to these
requirements after the 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 53090 (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 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's 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 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. As discussed previously, the Area was designated attainment/
unclassifiable for the 1-hour standard, therefore, there are no
outstanding Part D submittals under the 1-hour standard for the 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 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
West Virginia's 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 Wheeling's redesignation request. Because the State submitted a
complete redesignation request for Wheeling 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 Wheeling for the purposes
of redesignation.
In addition to the fact that Part D requirements applicable for
purposes of redesignation did not become due prior 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 Wheeling, 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 Wheeling upon redesignation to attainment. 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. Wheeling Has a Fully Approved SIP for the Purposes of Redesignation
EPA has fully approved the West Virginia SIP for the purposes of
this 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 Area was a 1-hour attainment/
unclassifiable area at the time of its designation as a basic 8-hour
ozone nonattainment area on April 30, 2004. Because the Area was never
designated as a Part D nonattainment area, there were no previous Part
D SIP submittal requirements for the Area. Nor

[[Page 57899]]

have any Part D submittal requirements have come due prior to the
submittal of the 8-hour maintenance plan for the area. Therefore, all
Part D submittal requirements have been fulfilled. Because there are no
outstanding SIP submission requirements applicable for the purposes of
redesignation of Wheeling, 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 Area, and therefore they need
not be approved into the SIP prior to redesignation.
4. The Air Quality Improvement in the Wheeling, WV-OH 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 States have 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 in the Area are shown in Table 3.

Table 3.--Wheeling (Marshall and Ohio County, West Virginia) Total VOC and NOX Emissions for 2002 and 2004
(tpd)*
----------------------------------------------------------------------------------------------------------------
Year Point Area Nonroad Mobile Total
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 3.0 14.8 2.3 3.4 23.5
Year 2004................................................ 3.0 15.4 2.3 2.8 23.5
------------------------------------------------------
Diff. (02-04)........................................ 0 +0.6 0 -0.6 0
----------------------------------------------------------------------------------------------------------------
Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 152.2 3.4 5.6 5.5 166.7
Year 2004................................................ 85.8 3.4 7.3 4.7 101.2
------------------------------------------------------
Diff. (02-04)........................................ -66.4 0 +1.7 -0.8 -65.5
----------------------------------------------------------------------------------------------------------------
Belmont (Belmont County, Ohio) Total VOC and NOX Emissions for 2002 and 2004 (tpd)*
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 0.2 4.1 1.0 4.4 9.7
Year 2004................................................ 0.2 4.0 0.9 3.7 8.8
------------------------------------------------------
Diff. (02-04)........................................ 0 -0.1 -0.1 -0.8 -0.9
----------------------------------------------------------------------------------------------------------------
Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 31.8 0.3 3.0 7.4 42.5
Year 2004................................................ 28.7 0.3 2.9 6.3 38.2
------------------------------------------------------
Diff. (02-04)........................................ -3.1 0 -0.1 -1.1 -4.3
----------------------------------------------------------------------------------------------------------------
* Emissions not exact, due to rounding.

Between 2002 and 2004, Wheeling VOC emissions stayed the same, and
NO_X emissions were reduced by 65.5 tpd, due to the following
permanent and enforceable measures implemented or in the process of
being implemented in Wheeling:

Programs Currently in Effect

(a) National Low Emission Vehicle (NLEV);
(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 NO_X
emissions. Also, between 2002 and 2004, Belmont VOC emissions were
reduced by 0.9 tpd and NO_X emissions were reduced by 4.3
tpd. Therefore, the entire Area is seeing a decrease in VOC and
NO_X emissions, due to permanent and enforceable measures.
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 Area. NO_X emissions from EGUs in Marshall and
Ohio Counties, West Virginia were reduced by 60.3 tpd between 2002 and
2004. NO_X emissions from EGU's in Belmont County, Ohio were
reduced by 3.1 tpd between 2002 and 2004. Also, NO_X
emissions from non-EGU sources in Marshall and Ohio Counties, West
Virginia were reduced by 6.1 tpd between 2002 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.

[[Page 57900]]

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 38958 (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 Ohio County 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. Wheeling Has a Fully Approved Maintenance Plan Pursuant to Section
175A of the CAA
In conjunction with its request to redesignate Wheeling to
attainment status, West Virginia submitted a SIP revision to provide
for maintenance of the 8-hour ozone NAAQS in Wheeling for at least 12
years after redesignation. West Virginia is requesting that EPA approve
this SIP revision as meeting the requirement of CAA 175A. Once
approved, the maintenance plan for the 8-hour ozone NAAQS will ensure
that the SIP for Wheeling 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. 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 Wheeling 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 Wheeling
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 Wheeling, 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. 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.
(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 MVEBs. This applies to the maintenance
plan submitted by WVDEP on July 24, 2006. Therefore, the WVDEP has
consulted with the Wheeling MPO, the Bel-O-Mar Regional Council (Bel-O-
Mar), as well as the West Virginia Department of Transportation (WVDOT)
and the Ohio Department of Transportation (ODOT), to develop state
MVEBs for the West Virginia portion of the nonattainment area. The ODOT
maintains the Travel Damand Model (TDM) for the Bel-O-Mar area and
provided base year and projection emissions data consistent with their
most recent available 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 Bel-O-Mar and ODOT to develop
highway emissions budgets for VOC and NO_X.
Bel-O-Mar, WVDOT, and ODOT must evaluate future Long Range
Transportation Plans (LRTP) and Transportation Improvement Programs
(TIP) to ensure that the associated emissions are equal to or less then
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 the MVEBs and budgets only
represent the Wheeling (Marshall and Ohio Counties) portion of the
nonattainment area.
(iv) Mobile non-road emissions--Emissions for the 2002 inventory
from nonroad sources were estimated in two steps. First, emissions for
nonroad source categories that are included in the NONROAD model were
developed. Second, emissions from sources not included in the NONROAD
model were estimated.
The 2002 mobile non-road emissions inventory was developed by WVDEP
staff using the NONROAD2005b Model. NONROAD estimates fuel consumption
and emissions of total hydrocarbons, carbon monoxide, nitrogen oxides,
sulfur dioxide, and particulate matter for all nonroad mobile source
categories

[[Page 57901]]

except for aircraft, locomotives, and commercial marine vessels (CMV).
The 2004 attainment year VOC and NO_X emissions for the
Area are summarized along with the 2009 and 2018 projected emissions
for this area in table 4, which covers 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 the Area.
(b) Maintenance Demonstration--On July 24, 2006, the WVDEP
submitted a SIP revision to supplement its July 24, 2006 redesignation
request. The submittal by WVDEP consists of the maintenance plan as
required by section 175A of the CAA. The Wheeling 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 Wheeling through the
year 2018. The Wheeling 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).
Table 4 specifies the Area's VOC and NO_X emissions for
2004, 2009, and 2018. The WVDEP and Ohio EPA 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.--Wheeling, WV-OH Nonattainment Area Summary of Emissions
[All emissions in tpd for an ozone season day]
----------------------------------------------------------------------------------------------------------------
Emissions in tpd
--------------------------------------------------------------------------------
2004 2009 2018
--------------------------------------------------------------------------------
WV \1\ OH \2\ Total WV \1\ OH \2\ Total WV \1\ OH \2\ Total
----------------------------------------------------------------------------------------------------------------
Point:
NOX........................ 85.8 28.7 114.5 61.7 21.1 82.8 26.2 19.0 45.2
VOC........................ 3.0 0.2 3.2 2.8 0.1 2.9 3.3 0.2 3.5
Area:
NOX........................ 3.4 0.3 3.7 1.8 0.4 2.2 2.0 0.4 2.4
VOC........................ 15.4 4.0 19.4 7.3 3.9 11.2 8.4 3.9 12.3
Nonroad: \3\
NOX........................ 7.3 2.9 10.2 5.2 2.5 7.7 4.6 1.9 6.5
VOC........................ 2.3 0.9 3.2 2.1 0.8 2.9 1.8 0.6 2.4
MVEBs: \4\
NOX........................ 4.7 6.3 11.0 4.3 4.7 9.0 1.7 1.9 3.6
VOC........................ 2.8 3.5 6.3 2.5 2.6 5.1 1.4 1.5 2.9
Total: \5\
NOX........................ 101.2 38.2 139.4 72.9 28.7 101.6 34.5 23.2 57.7
VOC........................ 23.5 8.6 32.2 14.7 7.4 22.1 14.9 6.2 21.1
----------------------------------------------------------------------------------------------------------------
\1\ WV emissions are total emissions for Ohio and Marshall Counties in West Virginia.
\2\ OH emissions are total emissions for Belmont County in Ohio, as provided by Ohio EPA (see Appendix E).
\3\ Nonroad includes nonroad model results plus Commercial Marice Wessels, Railroad and Airports.
\4\ MVEBs for 2004 are actual; budgets established for 2009 and 2018 include 15% reallocation from the safety
margin.
\5\ Sums may not total exactly due to rounding.

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, CAIR,
promulgated May 12, 2005 (70 FR 25161) should have positive impacts on
West Virginia and Ohio'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 air quality in the Area.
Currently, West Virginia is in the process of adopting rules to
address CAIR through state rules 45CSR39, 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 were
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 Area.
(c) Monitoring Network--There is currently one monitor measuring
ozone in the Area, located in Ohio County, West Virginia. 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 Tier 2/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 Area to maintain attainment.
In addition to maintaining the key elements of its regulatory
program, West Virginia 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

[[Page 57902]]

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 the same techniques as the 2002 ozone
inventory. 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 WVDOT for the subject
year and calculating emissions using the latest approved MOBILE model.
Alternatively, the motor vehicle emissions may be obtained in
consultation with the MPO, Bel-O-Mar, using methodology similar to that
used for transportation conformity purposes. The WVDEP shall also
continue to operate the existing ozone monitoring station in the areas
pursuant to 40 CFR part 58 throughout the maintenance period and submit
quality-assured ozone data to EPA through the AQS system.
(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 Wheeling to stay in compliance with the 8-hour ozone
standard after redesignation depends upon VOC and NO_X
emissions in Wheeling 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 significant emissions
growth above the 2004 maintenance base-year inventory or if a monitored
air quality exceedance pattern indicates that an ozone NAAQS violation
may be imminent--Then WVDEP will evaluate existing control measures to
ascertain if additional regulatory revisions are necessary to maintain
the ozone standard. The maintenance plan also states that an exceedance
pattern would include, but is not limited to, the measurement of five
exceedances or more occurring at the monitor during a calendar year.
(ii) In the event that a violation of the 8-hour ozone standard
occurs at the Ohio County, West Virginia monitor--The maintenance plan
states that in the event that a violation of the ozone standard occurs
at the Ohio County, West Virginia ozone the State of West Virginia will
select and adopt 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 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 within 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 Wheeling by the start of the following ozone season.
(f) An Additional Provision of the Maintenance Plan--The State's
maintenance plan for Wheeling 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 will
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. 40 CFR
part 51, the CERR (67 FR 39602) requires that states submit an annual
inventory of criteria pollutants for large point sources with actual
emissions greater than or equal to any of the emission thresholds to
EPA. 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 Wheeling meets the requirements of
section 175A of the Act.

[[Page 57903]]

VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Wheeling Maintenance Plan 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 SIP.
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 PM2.5 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 Wheeling 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 (safety margin allocation for 2009 and 2018 only). 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: Wheeling 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 Wheeling. The total emissions from
point, area, mobile on-road, and mobile non-road sources in 2004
equaled 23.6 tpd of VOC and 101.2 tpd of NO_X. The WVDEP
projected emissions out to the year 2018 and projected a total of 14.9
tpd of VOC and 34.6 tpd of NO_X from all sources in Wheeling.
The safety margin for 2018 would be the difference between these
amounts, or 8.7 tpd of VOC and 66.6 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 5 shows the safety
margins for the 2009 and 2018 years.

Table 5.--2009 and 2018 Safety Margins for Wheeling
------------------------------------------------------------------------
VOC NOX
Inventory year emissions emissions
(tpd) (tpd)
------------------------------------------------------------------------
2004 Attainment................................. 23.6 101.2
2009 Interim.................................... 14.8 72.9
2009 Safety Margin.............................. 8.8 28.3
2004 Attainment................................. 23.6 101.2
2018 Final...................................... 14.9 34.6
2018 Safety Margin.............................. 8.7 66.6
------------------------------------------------------------------------

The WVDEP allocated 0.56 tpd NO_X and 0.33 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 WVDEP allocated 0.22 tpd NO_X and 0.19 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 6 shows the final 2009 and 2018 MVEBS for Wheeling.

Table 6.--2009 and 2018 Final MVEBs for Wheeling
------------------------------------------------------------------------
VOC NOX
Inventory year emissions emissions
(tpd) (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source projected 2.21 3.74
emissions....................................
2009 Safety Margin Allocated to MVEBs......... 0.33 0.56
2009 MVEBs *.................................. 2.54 4.30

[[Page 57904]]

2018 projected on-road mobile source projected 1.24 1.47
emissions....................................
2018 Safety Margin Allocated to MVEBs......... 0.19 0.22
2018 MVEBs *.................................. 1.43 1.69
------------------------------------------------------------------------
*Highway budgets are shown at a precision of two decimal places for
conformity purposes.

C. Why Are the MVEBs Approvable?

The 2009 and 2018 MVEBs for Wheeling 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
Wheeling Maintenance Plan?

The MVEBs for the Wheeling 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 Wheeling 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 Wheeling 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 Area has attained the 8-hour
ozone NAAQS. EPA is also proposing to approve the redesignation of the
Wheeling portion of the Area from nonattainment to attainment for the
8-hour ozone NAAQS. 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 Wheeling has
attained the 8-hour ozone standard. The final approval of this
redesignation request would change the designation of Wheeling from
nonattainment to attainment for the 8-hour ozone standard. EPA is also
proposing to approve the associated maintenance plan for Wheeling,
submitted on July 24, 2006, as a revision to the West Virginia SIP. EPA
is proposing to approve the maintenance plan for Wheeling 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 Wheeling 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.

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

[[Page 57905]]

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 Wheeling 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 Wheeling 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: September 21, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E6-16177 Filed 9-29-06; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the West Virginia Portion of the Wheeling, WV-OH 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Maintenance Plan

Local Navigation