[Federal Register Volume 62, Number 114 (Friday, June 13, 1997)]
[Rules and Regulations]
[Pages 32204-32207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15567]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA-076-5022a; FRL-5841-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia: Determination of Attainment of Ozone Standard and 
Determination Regarding Applicability of Certain Requirements in the 
Richmond Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA has determined that the Richmond ozone nonattainment area 
has attained the National Ambient Air Quality Standard (NAAQS) for 
ozone. This determination is based upon three years of ambient air 
monitoring data for the years 1993-95 that demonstrate that the ozone 
NAAQS has been attained in this area. EPA has also determined that 
Richmond has continued to attain the standard to date. On the basis of 
this determination, EPA is also determining that certain reasonable 
further progress and attainment demonstration requirements, along with 
certain other related requirements, of Part D of Title I of the Clean 
Air Act are not applicable to this area as long as this area continues 
to attain the ozone NAAQS.

DATES: This final rule is effective July 28, 1997 unless within July 
14, 1997,

[[Page 32205]]

adverse or critical comments are received. If the effective date is 
delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, 
Ozone/Carbon Monoxide, and Mobile Sources Section, Mailcode 3AT21, 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. Persons interested in examining these documents 
should schedule an appointment with the contact person (listed below) 
at least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, Ozone/Carbon 
Monoxide and Mobile Sources Section (3AT21), U.S. Environmental 
Protection Agency--Region III, 841 Chestnut Building, Philadelphia, 
Pennsylvania 19107, or by telephone at: (215) 566-2179. Questions may 
also be sent via e-mail, to the following address: 
Cripps.C[email protected] (Please note that only written 
comments can be accepted for inclusion in the docket.)

SUPPLEMENTARY INFORMATION:

I. Background

    Subpart 2 of Part D of Title I of the Clean Air Act contains 
various air quality planning and State Implementation Plan (SIP) 
submission requirements for ozone nonattainment areas. EPA considers it 
is reasonable to interpret provisions regarding reasonable further 
progress (RFP) and attainment demonstrations, along with certain other 
related provisions, so as not to require SIP submissions if an ozone 
nonattainment area subject to those requirements is monitoring 
attainment of the ozone standard (i.e., attainment of the NAAQS 
demonstrated with three consecutive years of complete, quality assured 
air quality monitoring data). As described below, EPA has previously 
interpreted the general provisions of subpart 1 of part D of Title I 
(sections 171 and 172) so as not to require the submission of SIP 
revisions concerning RFP, attainment demonstrations, or contingency 
measures. As explained in a memorandum dated May 10, 1995, from John S. 
Seitz, Director, Office of Air Quality Planning and Standards to the 
Regional Air Division Directors, entitled ``Reasonable Further 
Progress, Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard'', EPA concludes that it is appropriate to interpret the more 
specific RFP, attainment demonstration and related provisions of 
subpart 2 in the same manner.
    First, with respect to RFP, section 171(1) states that, for 
purposes of part D of Title I, RFP ``means such annual incremental 
reductions in emissions of the relevant air pollutant as are required 
by this part or may reasonably be required by the Administrator for the 
purpose of ensuring attainment of the applicable national ambient air 
quality standard by the applicable date.'' Thus, whether dealing with 
the general RFP requirement of section 172(c)(2), or the more specific 
RFP requirements of subpart 2 for classified ozone nonattainment areas 
(such as the 15 percent plan requirement of section 182(b)(1)), the 
stated purpose of RFP is to ensure attainment by the applicable 
attainment date.1 If an area has in fact attained the 
standard, the stated purpose of the RFP requirement will have already 
been fulfilled and EPA concludes that the area does not need to submit 
revisions providing for the further emission reductions described in 
the RFP provisions of section 182(b)(1).
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    \1\ EPA notes that paragraph (1) of subsection 182(b) is 
entitled ``Plan Provisions for Reasonable Further Progress'' and 
that subparagraph (B) of paragraph 182(c)(2) is entitled 
``Reasonable Further Progress Demonstration,'' thereby making it 
clear that both the 15 percent plan requirement of section 182(b)(1) 
and the 3 percent per year requirement of section 182(c)(2) are 
specific varieties of RFP requirements.
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    EPA notes that it took this view with respect to the general RFP 
requirement of section 172(c)(2) in the General Preamble for the 
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57 
FR 13498 (April 16, 1992)), and it is now extending that interpretation 
to the specific provisions of subpart 2. In the General Preamble, EPA 
stated, in the context of a discussion of the requirements applicable 
to the evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the Commonwealth will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR at 
13564.) 2
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    \2\ See also ``Procedures for Processing Requests to Redesignate 
Areas to Attainment,'' from John Calcagni, Director, Air Quality 
Management Division, to Regional Air Division Directors, September 
4, 1992, at page 6 (stating that the ``requirements for reasonable 
further progress * * * will not apply for redesignations because 
they only have meaning for areas not attaining the standard'') 
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
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    Second, with respect to the attainment demonstration requirements 
of section 182(b)(1), an analogous rationale leads to the same result. 
Section 182(b)(1) requires that the plan provide for ``such specific 
annual reductions in emissions * * * as necessary to attain the 
national primary ambient air quality standard by the attainment date 
applicable under this Act.'' As with the RFP requirements, if an area 
has in fact monitored attainment of the standard, EPA concludes there 
is no need for an area to make a further submission containing 
additional measures to achieve attainment. This is also consistent with 
the interpretation of certain section 172(c) requirements provided by 
EPA in the General Preamble to Title I, as EPA stated there that no 
other measures to provide for attainment would be needed by areas 
seeking redesignation to attainment since ``attainment will have been 
reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum 
at page 6.) Upon attainment of the NAAQS, the focus of state planning 
efforts shifts to maintenance of the NAAQS and the development of a 
maintenance plan under section 175A.
    Similar reasoning applies to the contingency measure requirements 
of section 172(c)(9). EPA has previously interpreted the contingency 
measure requirement of section 172(c)(9) as no longer being applicable 
once an area has attained the standard since those ``contingency 
measures are directed at ensuring RFP and attainment by the applicable 
date.'' (57 FR at 13564; see also September 1992 Calcagni memorandum at 
page 6.) Similarly, as the section 172(c)(9) contingency measures are 
linked with the RFP requirements of section 182(b)(1), the requirement 
no longer applies once an area has attained the standard.
    EPA emphasizes that the lack of a requirement to submit the SIP 
revisions discussed above exists only for as long as an area designated 
nonattainment continues to attain the standard. If EPA subsequently 
determines that such an area has violated the NAAQS, the basis for the 
determination that the area need not make the pertinent SIP revisions 
would no longer exist. The EPA would notify the Commonwealth of that 
determination and would also provide notice to the public in the 
Federal

[[Page 32206]]

Register. Such a determination would mean that the area would have to 
address the pertinent SIP requirements within a reasonable amount of 
time, which EPA would establish taking into account the individual 
circumstances surrounding the particular SIP submissions at issue. 
Thus, a determination that an area need not submit one of the SIP 
submittals amounts to no more than a suspension of the requirement for 
so long as the area continues to attain the standard.
    The Commonwealth must continue to operate an appropriate air 
quality monitoring network, in accordance with 40 CFR Part 58, to 
verify the attainment status of the area. The air quality data relied 
upon to determine that the area is attaining the ozone standard must be 
consistent with 40 CFR Part 58 requirements and other relevant EPA 
guidance and recorded in EPA's Aerometric Information Retrieval System 
(AIRS).
    The determinations that are being made by this action are not 
equivalent to the redesignation of the area to attainment. Attainment 
of the ozone NAAQS is only one of the criteria set forth in section 
107(d)(3)(E) that must be satisfied for an area to be redesignated to 
attainment. To be redesignated the Commonwealth must submit and receive 
full approval of a redesignation request for the area that satisfies 
all of the criteria of that section, including the requirement of a 
demonstration that the improvement in the area's air quality is due to 
permanent and enforceable reductions, that the area has a fully-
approved SIP meeting all of the applicable requirements under section 
110 and Part D, and of a fully-approved maintenance plan. On July 26, 
1996 the Commonwealth of Virginia submitted a redesignation request and 
maintenance plan for the Richmond area.
    The redesignation request and maintenance plan is the subject of a 
separate rulemaking action.
    Furthermore, the determinations of this action will not shield an 
area from future EPA action to require emissions reductions from 
sources in the area where there is evidence, such as photochemical grid 
modeling, showing that emissions from sources in the area contribute 
significantly to nonattainment in, or interfere with maintenance by, 
other nonattainment areas. EPA has authority under sections 
110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions as 
necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

    EPA has reviewed the ambient air monitoring data for ozone 
(consistent with the requirements contained in 40 CFR Part 58 and 
recorded in AIRS) for the Richmond moderate ozone nonattainment area in 
the Commonwealth of Virginia from 1993 through the present time. On the 
basis of that review EPA has concluded that the area attained the ozone 
standard during the 1993-95 period and continues to attain the standard 
through the present time.
    The current design value for the Richmond nonattainment area, 
computed using ozone monitoring data for 1994 through 1996, is 116 
parts per billion (ppb). The average annual number of expected 
exceedances is 0.7 for that same time period. For the 1993 to 1995 time 
period, the average annual number of expected exceedances was 1.0, and 
the corresponding design value was 124 ppb. An area is considered in 
attainment of the standard if the average annual number of expected 
exceedances is less than or equal to 1.0. Thus, this areas is no longer 
recording violations of the air quality standard for ozone. A more 
detailed summary of the ozone monitoring data for the area is provided 
in the Technical Support Document (TSD) for this action. A copy of this 
TSD is available from the EPA Regional Office listed in the ADDRESSES 
section of this document.
    EPA's review of this material indicates that the Richmond area 
attained the NAAQS for ozone based upon air quality monitoring data for 
1993 to 1995 and has continued to attain the standard to date. EPA is 
making this determination regarding the applicability of certain 
requirements without prior proposal. However, in a separate document in 
this Federal Register publication, EPA is proposing to approve the SIP 
revision should adverse or critical comments be filed. This action will 
be effective July 28, 1997 unless, within 30 days of publication, 
adverse or critical comments are received.
    If EPA receives such comments, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any and all parties interested in commenting on this action 
should do so at this time. If no such comments are received, the public 
is advised that this action will be effective on July 28, 1997.

Final Action

    EPA has determined that the Richmond ozone nonattainment area has 
attained the ozone standard and continues to attain the standard at 
this time. As a consequence of this determination, the requirements of 
section 182(b)(1) concerning the submission of the 15 percent plan and 
ozone attainment demonstration and the requirements of section 
172(c)(9) concerning contingency measures are no longer applicable to 
the area so long as the area does not violate the ozone standard.
    EPA emphasizes that this determination will be contingent upon the 
continued monitoring and continued attainment and maintenance of the 
ozone NAAQS in the affected area. When and if a violation of the ozone 
NAAQS is monitored in the Richmond nonattainment areas (consistent with 
the requirements contained in 40 CFR Part 58 and recorded in AIRS), EPA 
will provide notice to the public in the Federal Register. Such a 
violation would mean that the area would thereafter have to address the 
requirements of section 182(b)(1) and section 172(c)(9) since the basis 
for the determination that they do not apply would no longer exist.
    As a consequence of the determination that these areas have 
attained the NAAQS and that the RFP and attainment demonstration 
requirements of section 182(b)(1) do not presently apply, the sanctions 
and Federal Implementation Plan (FIP) clocks started by EPA on January 
20, 1994, for failure to submit the RFP SIP required under section 
182(b)(1) are hereby stopped since the deficiency for which the clocks 
were started no longer exists.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

I. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR

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2214-2225), as revised by a July 10, 1995 memorandum from Mary Nichols, 
Assistant Administrator for Air and Radiation. The Office of Management 
and Budget (OMB) has exempted this regulatory action from E.O. 12866 
review.

II. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000. Today's determination does not create any new requirements, but 
suspends the indicated requirements. Therefore, because this action 
does not impose any new requirements, I certify that it does not have a 
significant impact on any small entities affected.

III. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more.
    Under section 205, EPA must select the most cost-effective and 
least burdensome alternative that achieves the objectives of the rule 
and is consistent with statutory requirements. Section 203 requires EPA 
to establish a plan for informing and advising any small governments 
that may be significantly or uniquely impacted by the rule. EPA has 
determined that the action promulgated does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate, or to the 
private sector. This Federal action does not create any new 
requirements, but suspends the indicated requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

IV. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

V. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 12, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)
    The Administrator's decision to issue a determination that the 
Richmond area has attained the NAAQS for ozone and that certain 
reasonable further progress and attainment demonstration requirements, 
along with certain other related requirements, of Part D of Title I of 
the Clean Air Act are not applicable to this area as long as this area 
continues to attain the ozone NAAQS will be based on whether it meets 
the requirements of section 110(a)(2) (A)-(K) and part D of the Clean 
Air Act, as amended, and EPA regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone.

    Dated: June 5, 1997.
W. Michael McCabe,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

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

Subpart VV--Virginia

    2. Section 52.2428 is added to read as follows:


Sec. 52.2428  Control Strategy: Carbon monoxide and ozone.

    Determination--EPA has determined that, as of July 28, 1997, the 
Richmond ozone nonattainment area, which consists of the counties of 
Charles City, Chesterfield, Hanover and Henrico, and of the cities of 
Richmond, Colonial Heights and Hopewell, has attained the ozone 
standard and that the reasonable further progress and attainment 
demonstration requirements of section 182(b)(1) and related 
requirements of section 172(c)(9) of the Clean Air Act do not apply to 
this area for so long as the Richmond ozone nonattainment area does not 
monitor any violations of the ozone standard. If a violation of the 
ozone NAAQS is monitored in the Richmond ozone nonattainment area, 
these determinations shall no longer apply.

[FR Doc. 97-15567 Filed 6-12-97; 8:45 am]
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