[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Rules and Regulations]
[Pages 3349-3352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1008]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81

[VA37-1-6812a; FRL-5139-8]


Clean Air Act Promulgation of Reclassification of Ozone 
Nonattainment Areas in Virginia, and Attainment Determinations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action reclassifies the Norfolk-Virginia Beach-Newport 
News (Hampton Roads), VA ozone nonattainment area from marginal 
nonattainment to moderate nonattainment. This action also determines 
that the Sussex, DE; Allentown-Bethlehem-Easton, PA-NJ; Altoona, PA; 
Erie, PA; Harrisburg-Lebanon-Carlisle, PA; Johnstown, PA; Lancaster, 
PA; Scranton-Wilkes-Barre, PA; Youngstown-Warren-Sharon, PA-OH; York, 
PA; and Greenbrier, WV ozone nonattainment areas classified as marginal 
have attained the ozone air quality standard by the November 15, 1993 
attainment date. In addition, this action determines that the Kent and 
Queen Anne's Counties, MD marginal ozone nonattainment area attained 
the ozone standard by November 1994. These actions are based on 
monitored air quality readings for ozone during the years 1991-1994. 
This is not a redesignation action for these marginal areas for which 
air quality monitoring data indicates attainment of the standard. The 
Clean Air Act requires that a separate redesignation request be 
submitted by the appropriate states to EPA. Finally, this document sets 
forth the method which EPA will use throughout the country henceforth 
to notify the public that areas have attained an air quality standard. 
EPA is taking no action in this document regarding the Smyth County, VA 
nonattainment area.

DATES: This action will be effective March 20, 1995, unless notice is 
received by February 16, 1995 that someone wishes to submit adverse or 
critical comments. If the effective date is delayed timely notice will 
be published in the Federal Register.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 597-9337, at the 
EPA Regional office listed above.

SUPPLEMENTARY INFORMATION:

I. Background

A. Clean Air Act Requirements and EPA Actions Concerning Designation 
and Classification

    Section 107(d)(4) of the Clean Air Act (the Act) required the 
States and EPA to designate areas as attainment, nonattainment, or 
unclassifiable for ozone as well as other pollutants for which national 
ambient air quality standards (NAAQSs) have been set. Section 181(a)(1) 
(table 1) required that ozone nonattainment areas be classified as 
marginal, moderate, serious, severe, or extreme, depending on their air 
quality.
    In a series of Federal Register documents, EPA completed this 
designation and classification process. See 56 FR 58694 (November 6, 
1991); 57 FR 56762 (Nov. 30, 1992); and 59 FR 18967 (April 21, 1994). 
By these documents, EPA designated and classified all areas of the 
country for ozone.
    Areas designated nonattainment for ozone are required to meet 
attainment dates specified under the Act. For areas classified Marginal 
through Extreme, the attainment dates range from November 15, 1993 
through November 15, 2010. A discussion of the attainment dates is 
found in the General Preamble, 57 FR 13498 (April 16, 1992).
    The Sussex, DE; Kent and Queen Anne's Counties, MD; Allentown-
Bethlehem-Easton, PA-NJ; Altoona, PA; Erie, PA; Harrisburg-Lebanon-
Carlisle, PA; Johnstown, PA; Lancaster, PA; Scranton-Wilkes-Barre, PA; 
Youngstown-Warren-Sharon, PA-OH; York, PA; Norfolk-Virginia Beach-
Newport News (Hampton Roads), VA; Smyth County, VA (portion of White 
Top Mountain); and Greenbrier, WV areas were designated nonattainment 
and classified marginal for ozone pursuant to 56 FR 56694 (November 6, 
1991). By this classification, their attainment date became November 
15, 1993.

B. Clean Air Act Requirements and EPA Actions Concerning 
Reclassification

    Section 181(b)(2)(A) requires the Administrator, shortly after the 
attainment date, to determine whether ozone nonattainment areas 
attained the NAAQS. This provision states:

    [[Page 3350]] Within 6 months following the applicable 
attainment date (including any extension thereof) for an ozone 
nonattainment area, the Administrator shall determine, based on the 
areas design value (as of the attainment date), whether the area 
attained the standard by the date.

    This provision further states that, for areas classified as 
marginal, moderate, or serious, if the Administrator determines that 
the area did not attain the standard by its attainment date, the area 
must be reclassified upwards (bumped-up):

    Except for any severe or extreme area, any area that the 
Administrator finds has not attained the standard by that date shall 
be reclassified by operation of law in accordance with table 1 of 
subsection (a) of this section to the higher of--
    (i) The next higher classification for the area,

or
    (ii) The classification applicable to the area's design value as 
determined at the time of the notice required under subparagraph 
(B).

    Finally, subparagraph (B) of section 181(b)(2) mandates that the 
Administrator publish a document in the Federal Register identifying 
each area that failed to attain the NAAQS.
    As quoted above, section 181(b)(2)(A) states that the determination 
of attainment status be based on the area's ``design value''. EPA 
interprets this provision generally to refer to EPA's methodology for 
determining attainment status. See generally, H Comm. Rep. 101-490 pp. 
197, 232 (1990) (House Energy and Commerce Committee Report).
    For ozone, EPA determines attainment status on the basis of the 
expected number of exceedances of the NAAQS over the three-year period 
up to, and including, the attainment date. See 57 FR 13506 (April 16, 
1992) (the ``General Preamble''). Under these requirements, for 
marginal ozone nonattainment areas, EPA reviewed air quality during the 
years 1991-1993 to determine whether the area met its attainment date.

II. Summary of Action

A. Determinations of Attainment

    By this action, EPA is issuing a final rule that determinations 
under section 181(b)(2)(A) of whether an area attained the ozone NAAQS 
by its attainment date will be made on the basis of air quality 
monitoring data for the three-year period up to and including the 
attainment date. The air quality data relied on for these 
determinations must be consistent with 40 CFR part 58 requirements and 
other relevant EPA guidance and recorded in EPA's Aerometric 
Information Retrieval System (AIRS).
    If this rule takes effect, future EPA determinations of whether an 
ozone nonattainment area attained the NAAQS by its attainment date will 
be made solely by reference to AIRS data. EPA would not be required to 
publish a Federal Register document concerning areas that attained the 
ozone NAAQS. EPA would continue to be required to publish a Federal 
Register document for areas that failed to attain the ozone NAAQS and 
that are subject to reclassification. However, this notice would be a 
final action not subject to notice and comment under the Administrative 
Procedures Act, 5 U.S.C. 553(b). Instead, EPA will invoke the ``good 
cause'' exemption from notice-and-comment rulemaking, under 5 U.S.C. 
553(b)(B). The ``good cause'' exemption applies when the agency ``for 
good cause finds * * * that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' This 
exemption applies to merely ministerial actions, and EPA takes the 
position that a reclassification based on air quality data amounts to a 
ministerial action.
    The system described above would fulfill the requirements of 
section 181(b)(2) of the Act. EPA intends to undertake the same system 
for making attainment determinations with respect to areas that are 
nonattainment for carbon monoxide (CO) under section 186(b)(2). By this 
action, EPA is issuing a final rule to this effect, which will be 
effective March 20, 1995 unless notice is received by February 16, 1995 
that someone wishes to submit adverse or critical comments. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

B. Region III Nonattainment Areas

    EPA is today determining that the Hampton Roads nonattainment area 
in Virginia failed to demonstrate attainment by its attainment date of 
November 15, 1993. The Hampton Roads ozone nonattainment area is 
comprised of Chesapeake, Hampton, James City County, Newport News, 
Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach, Williamsburg, 
and York County in Virginia. This determination is based on air quality 
monitors revealing exceedances of the ozone NAAQS during the three year 
period 1991-1993.
    In order to attain the NAAQS for ozone, each monitoring site in a 
nonattainment area must average no more than 1.0 expected exceedance of 
the standard (0.12 parts per million (ppm) ozone) per year in a three 
year period. The number of expected exceedances is calculated by 
adjusting the number of actual monitored exceedances to account for 
missing data. Monitors in the Hampton Roads area in Virginia recorded 
eight exceedances of the ozone NAAQS in the three year period 1991 to 
1993. In the Hampton Roads area, the Suffolk monitor (No. 51-800-0004) 
recorded five exceedances in that time period. Consequently, the 
average annual expected exceedances for the Hampton Roads area was 1.7 
for the 1991-1993 period. The ozone data measured during that same 
period for this area indicates a design value of 0.131 parts per 
million (ppm).
    Monitoring data in the Hampton Roads area for the 1992-1994 period 
indicates that the expected number of exceedances remains 1.7 and the 
design value remains 0.131 ppm ozone. Therefore, the area did not 
attain the NAAQS for ozone by November 15, 1993 and continues to 
violate the ozone standard. Pursuant to section 181 of the Act, EPA is 
required to reclassify (bump-up) the area to moderate.
    This document fulfills EPA's obligations under section 181(b)(2) to 
determine whether the Hampton Roads, Virginia marginal ozone 
nonattainment area attained the ozone NAAQS by their attainment date, 
and to publish its determination in the Federal Register.
    Under Section 182(i) of the Act, reclassifying the Hampton Roads, 
Virginia area to moderate means that the Commonwealth of Virginia will 
be required to submit State Implementation Plan (SIP) revisions for 
this area appropriate for moderate areas under section 182(b). Section 
182(i) further provides that deadlines provided under the requirements 
of section 182(b) remain applicable to these areas, except that the 
Administrator (or the Administrator's delegate) ``may adjust any 
applicable deadlines (other than attainment dates) to the extent such 
adjustment is necessary or appropriate to assure consistency among 
required submissions.'' Accordingly, reclassification to moderate 
results in an attainment date for the Hampton Roads area of November 
15, 1996 under section 181(a)(1) (table 1).
    However, EPA is exercising its authority to adjust the SIP 
submission schedule for the moderate area controls. All SIP submissions 
required under section 182(b) must be submitted by November 15, 1995. 
All required controls and emission reductions must be implemented or 
achieved on a schedule that facilitates attainment by November 15, 1996 
(the attainment date for marginal areas). This submittal date will 
assure consistency in SIP submittal [[Page 3351]] schedules and afford 
the States sufficient time to prepare the submittals, while also 
assuring that the required controls may be implemented by the 
attainment date. EPA cautions that because the determination of whether 
the areas attain the NAAQS by the end of 1996 must be based on air 
quality during the 1994-1996 period, the sooner the moderate controls 
are implemented, the more likely the area will reach attainment by the 
end of 1996.
    In addition, this notice serves to announce EPA's determination 
that the Sussex, Delaware; Allentown-Bethlehem-Easton, Pennsylvania-New 
Jersey; Altoona, Pennsylvania; Erie, Pennsylvania; Harrisburg-Lebanon-
Carlisle, Pennsylvania; Johnstown, Pennsylvania; Lancaster, 
Pennsylvania; Scranton-Wilkes-Barre, Pennsylvania; Youngstown-Warren-
Sharon, Pennsylvania-Ohio; York, Pennsylvania; and Greenbrier, West 
Virginia marginal ozone nonattainment areas succeeded in demonstrating 
attainment of the ozone NAAQS by their attainment date of November 15, 
1993. This determination is also based on ozone air quality data 
measured during the 1991-1993 period. All of these areas have average 
annual expected exceedances less than or equal to 1.0 for the 1991-1993 
three year period.
    Furthermore, EPA has determined that the Kent and Queen Anne's 
Counties area, Maryland did not attain the ozone standard by its 
attainment date, but has now attained the standard. During the 1991-
1993 period, eight exceedances were monitored at the only monitoring 
site in the area, the Millington site (No. 24-029-0002). The average 
annual expected exceedances was 2.8 for the Kent and Queen Anne's areas 
in that period, and the design value was 0.133 ppm. However, data for 
the most recent three years period, 1992-1994, indicates that the area 
has now attained the ozone standard. Only two exceedance were recorded 
in that time period, making the average annual expected exceedances 
0.66 and the ozone design value 0.121 ppm. (Because the ozone standard 
is 0.12 ppm ozone, design values 0.124 ppm, which are 
rounded off to 0.12 ppm, meet this standard. Design values 
0.125 ppm do not meet the standard because they are rounded 
off to 0.13 ppm.) Since this area is no longer violating the 
ozone standard, reclassification to moderate is not warranted.
    Although EPA has determined that the marginal nonattainment areas 
of Sussex County, DE; Kent and Queen Anne's Counties, MD; Allentown-
Bethlehem-Easton, Altoona, Erie, Harrisburg-Lebanon-Carlisle, 
Johnstown, Lancaster, Scranton-Wilkes-Barre, Youngstown-Warren-Sharon, 
and York areas, PA; and Greenbrier County, WV have attained the ozone 
NAAQS, they will continue to carry the designation of nonattainment and 
the classification of marginal. They are eligible to be redesignated to 
attainment under section 107(d)(3), if the criteria of that provision 
are met. A redesignation of an area to attainment must be a formal 
request by a State to EPA and include, among other things, a public 
hearing, all section 110 and part D requirements, and a ten year 
maintenance plan. EPA must review the request and follow the usual 
procedures of completeness review, a notice of proposed rulemaking, and 
a final action after reviewing public comments.
    There was no ozone air quality monitoring in Smyth County, Virginia 
in the 1991-1993 period. Consequently, no determination can be made as 
to whether or not this area attained the ozone NAAQS. Therefore, EPA is 
taking no action in this notice regarding this nonattainment area. 
Smyth County's classification of marginal and rural transport will 
remain in place.
    A detailed discussion of the air quality data used in EPA's 
attainment determinations is contained in the technical support 
document (TSD) prepared for this action. Copies of the TSD are 
available from the EPA Regional office listed in the ADDRESSES section 
of this document.

Final Action

    In this action, EPA is promulgating a reclassification to moderate 
for the Hampton Roads, Virginia nonattainment area. Also in this 
action, EPA is notifying the public that future EPA determinations of 
whether an ozone nonattainment area attained the NAAQS by its 
attainment date will be made solely by reference to the AIRS data. EPA 
would not be required to publish a Federal Register notice concerning 
areas that attained the ozone NAAQS. Finally, this action serves to 
notify the public that the marginal nonattainment areas of Sussex 
County in Delaware; Kent and Queen Anne's Counties in Maryland; 
Allentown-Bethlehem-Easton, Altoona, Erie, Harrisburg-Lebanon-Carlisle, 
Johnstown, Lancaster, Scranton-Wilkes-Barre, Youngstown-Warren-Sharon, 
and York areas in Pennsylvania; and Greenbrier County in West Virginia 
have attained the ozone NAAQS. These areas will continue to carry the 
designation of nonattainment and the classification of marginal. These 
areas are eligible to be redesignated to attainment under section 
107(d)(3) of the Act, if the criteria of that provision are met.
    This action is being taken without prior proposal because the 
changes are noncontroversial and EPA anticipates no significant 
comments on them. The public should be advised that this action will be 
effective 60 days from date of this Federal Register document. However, 
if notice is received within 30 days that someone wishes to submit 
adverse or critical comments, this action will be withdrawn and two 
subsequent documents will be published before the effective date. One 
document will withdraw the final action and another will begin a new 
rulemaking by announcing a proposal of the action and establishing a 
comment period.
    Under section 307(b)(1) of the CAA, 42 U.S. C. 7607(b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by March 20, 
1995. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2) of the CAA, 42 U.S.C. 7607(b)(2).]
    Under E.O. 12291, EPA is required to judge whether an action is 
``major'' and therefore subject to the requirement of a regulatory 
impact analysis. The Agency has determined that the reclassification 
made final today would result in none of the significant adverse 
economic effects set forth in section 1(b) of the E.O. as grounds for a 
finding that an action is ``major.'' The Agency has, therefore, 
concluded that this action is not a ``major'' action under E.O. 12291.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Reclassifications of nonattainment areas under section 181 of the 
Act do not, by themselves, create any new requirements. Therefore, 
because this action does not impose any new requirements, I certify 
that it does not have a significant impact on small 
[[Page 3352]] entities. Moreover, due to the nature of the federal-
state relationship under the Act, preparation of a regulatory 
flexibility analysis would constitute federal inquiry into the economic 
reasonableness of state action. The Act forbids EPA to base its actions 
concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    By action dated December 20, 1994, the EPA Administrator delegated 
to the Regional Administrators the authority to determine whether ozone 
nonattainment areas attained the NAAQS. The Office of Management and 
Budget has exempted this action from review under Executive Order 
12866. The Regional Administrator's decision to reclassify the Hampton 
Roads ozone nonattainment area from marginal to moderate is based on 
whether it has attained the NAAQS by its attainment date, pursuant to 
section 181 of the Act.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Ozone.

    Dated: January 5, 1995.
Peter H. Kostmayer,
Regional Administrator.

    40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

    2. In Sec. 81.347 the ``Virginia-Ozone'' table is amended by 
revising the entry for ``Norfolk-Virginia Beach-Newport News (Hampton 
Roads) Area'' and all of the subentries to read as follows:


Sec. 81.347  Virginia.

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                                                 Virginia--Ozone                                                
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                                         Designation                               Classification               
     Designated area      --------------------------------------------------------------------------------------
                             Date\1\               Type                       Date\1\                 Type      
----------------------------------------------------------------------------------------------------------------
Norfolk-Virginia Beach-                                                                                         
 Newport News (Hampton                                                                                          
 Roads) Area:                                                                                                   
    Chesapeake...........       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Hampton..............       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    James City County....       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Newport News.........       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Norfolk..............       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Poquoson.............       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Portsmouth...........       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Suffolk..............       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Virginia Beach.......       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    Williamsburg.........       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
    York County..........       1/6/92  Nonattainment.............  Mar. 20, 1995\2\..........  Moderate.       
                                                                                                                
        *                  *                  *                  *                  *                  *        
                                                        *                                                       
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\1\This date is November 15, 1990, unless otherwise noted.                                                      
\2\However, the effective date is November 15, 1990 for the purposes of determining the scope of a ``covered    
  area'' under section 211(k)(10)(D), opt-in under section 211(k)(6), and the baseline determination of the 15% 
  reduction in volatile organic compounds under section 182(b)(1).                                              

[FR Doc. 95-1008 Filed 1-13-95; 8:45 am]
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