[Federal Register Volume 62, Number 193 (Monday, October 6, 1997)]
[Rules and Regulations]
[Pages 52029-52032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26444]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIPTRAX No.VA-076-5028; FRL-5904-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA has determined that the Richmond moderate ozone 
nonattainment area has attained the 1-hour .12 parts per million (ppm) 
National Ambient Air Quality Standard (NAAQS) for ozone. This 
determination is based upon the latest four years of ambient air 
monitoring data for the years 1993-96 that demonstrate that the 1-hour 
ozone NAAQS is being attained in this area. EPA has also determined 
that the Richmond area has continued to attain the 1-hour 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 (CAA), are not applicable to the 
Richmond area so long as this area continues to attain the ozone NAAQS, 
or until the area is redesignated to attainment.

EFFECTIVE DATE: This final rule is effective on November 5, 1997.

ADDRESSES: 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: Kristeen Gaffney, 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) 566-2092. Questions may 
also be sent via e-mail, to the following address: 
Gaffney.K[email protected].


[[Page 52030]]


SUPPLEMENTARY INFORMATION: On June 13, 1997, EPA published its 
determination that the Richmond ozone nonattainment area has attained 
the National Ambient Air Quality Standard (NAAQS) for ozone, and that 
Richmond has continued to attain the standard to date. On the basis of 
this determination, EPA further determined that certain reasonable 
further progress and attainment demonstration requirements, along with 
certain other related requirements of part D of Title I of the CAA are 
not applicable to this area as long as this area continues to attain 
the ozone NAAQS. See 62 FR 32204.
    EPA made these determinations through direct final rulemaking 
without prior proposal because the Agency viewed the action as 
noncontroversial and anticipated no adverse comments. The final rule 
was published in the Federal Register with a provision for a 30-day 
public comment period. The final rule stated that if adverse comments 
were received during the comment period, the final rulemaking action 
would be withdrawn by publishing a notice announcing withdrawal of the 
final action in the Federal Register. At the same time, EPA published a 
proposed rule for the same action in the event that adverse comments 
were submitted to EPA within 30 days of publication of the rule in the 
Federal Register [62 FR 32258, June 13, 1997].
    In a separate action, also on June 13, 1997, EPA proposed approval 
of the redesignation request and maintenance plan submitted by the 
Commonwealth of Virginia for the Richmond area and provided a 30-day 
public comment period. [62 FR 32258] On July 14, 1997, EPA received a 
letter from the New York State Department of Environmental Conservation 
(NYSDEC) submitting adverse comments that referenced both the 
determination of attainment rulemaking and the proposed approval of the 
redesignation request and maintenance plan rulemaking. The adverse 
comments all appear to pertain to the proposed approval of the 
redesignation request, and several comments were clearly identifiable 
as addressed solely to the proposal to approve the redesignation 
request. It was thus at best ambiguous as to whether any comments 
pertained to the rulemaking on the determination of attainment. 
However, to ensure that this comment letter was given proper 
consideration as it relates to EPA's determination of attainment and 
the resulting inapplicability of the RFP, attainment demonstration and 
section 172(c)(9) contingency measure requirements for the Richmond 
area, EPA removed the June 13, 1997 final rulemaking action in order to 
address the comments. [See 62 FR 43471, August 14, 1997.]
    In today's action, the EPA is responding to the comments in 
NYSDEC's letter only as they may relate to the determination of 
attainment and the inapplicability of certain RFP and attainment 
demonstration requirements, along with certain other related 
requirements of part D of Title I of the CAA. EPA will respond to the 
comments received from NYSDEC related to the redesignation request and 
maintenance plan in a separate rulemaking on EPA's final action in the 
context of the requirements for redesignation to attainment under the 
CAA.
    On July 18, 1997, EPA promulgated a new NAAQS for ozone replacing 
the 1-hour .12 ppm standard with an 8-hour 0.08 ppm standard [62 FR 
38856]. EPA is in the process of developing guidance and proposed rules 
to implement the new ozone standard based on a Presidential Directive 
signed on July 16, 1997 and also published in the Federal Register on 
July 18, 1997. Today's action is a determination of attainment for the 
Richmond area of the 1-hour .12 ppm ozone standard and a determination 
of inapplicability of certain CAA requirements related to that standard 
only. Today's decision does not in any way make a determination 
regarding Richmond's attainment status for the newly promulgated 8-hour 
.08 ppm ozone standard. Decisions regarding the attainment status of 
areas for the new 8-hour .08 ppm ozone NAAQS will be conducted through 
a separate rulemaking to be published at a later date at the time EPA 
designates all areas as attainment or nonattainment under the new 8-
hour NAAQS.
    EPA's decision that certain CAA requirements related to the 1-hour 
.12 ppm ozone standard are inapplicable is based on an EPA policy memo 
of 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.'' See the discussion and rationale 
contained in EPA's prior determination of attainment rulemakings for: 
Grand Rapids, MI [61 FR 31831, 31832-31834, June 21, 1996], Cleveland/
Akron/Lorain, OH [61 FR 20458, May 7, 1996] and Salt Lake City/Davis 
County, UT [60 FR 36723, July 18, 1995]. See also the decision of the 
U.S. Court of Appeals for the 10th Circuit upholding the statutory 
interpretation contained in the May 10, 1995 Seitz memo. Sierra Club v. 
EPA 99f.3d 1551 (10th Cir. 1996).

Response to Public Comments

    Comment #1
    NYSDEC disagrees with EPA's statement in the proposed rulemaking 
for approval of the redesignation request and maintenance plan that the 
Richmond area has met all relevant requirements of the CAA that were 
due as of July 26, 1996, the date Virginia submitted its redesignation 
request. NYSDEC states that the Commonwealth of Virginia missed the 
``November 15, 1995'' statutory deadline for implementing the nitrogen 
oxides (NOX) reasonably available control technology (RACT) 
requirements of the CAA and continues to be delinquent.1 It 
was noted that the Commonwealth of Virginia responded to EPA's July 8, 
1994 finding of failure to submit a NOX RACT state 
implementation plan (SIP) for the Richmond area with a petition for an 
exemption from the NOX RACT requirement submitted on 
December 18, 1995. NYSDEC states that this December 18, 1995 petition 
was well after the mandated date of November 15, 1993 for submittal of 
a NOX RACT SIP and after the mandatory implementation date. 
NYSDEC concludes that ``[t]herefore, not implementing NOX 
RACT in the Richmond area was not an option.'' NYSDEC objects to the 
proposed approval of the redesignation request on the grounds that the 
area failed to implement RACT on major sources of NOX.
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    \1\ Section 182(b) of the Act specifies that RACT is to be 
implemented not later than May 15, 1995. The discrepancy in dates 
does not substantively affect the commenters argument.
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    Response #1
    Upon careful consideration of this comment, EPA concludes that this 
comment is relevant only to the proposed approval of the redesignation 
to attainment and not EPA's July 13, 1997 decision that the RFP, 
attainment demonstration and section 172(c)(9) contingency measure 
requirements of the CAA are inapplicable to Richmond. Section 107 of 
the CAA requires that the Commonwealth meet all applicable part D 
requirements prior to redesignation. However, there is no linkage of 
the section 182(f) NOX RACT requirement with the 
determination of attainment and resulting inapplicability of certain 
part D requirements for RFP, the attainment demonstration and other 
requirements of CAA sections 172(c)(2), 172(c)(9), and 182(b)(1). 
Eligibility for this

[[Page 52031]]

determination is based solely on monitored air quality. Furthermore, on 
July 21, 1997, EPA published final approval of an exemption from the 
NOX RACT requirement for the Richmond area contingent upon 
air quality monitoring that demonstrates continued attainment of the 
ozone NAAQS [62 FR 38922].
    As discussed in the June 13, 1997 direct final rulemaking, 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 where an area is monitoring attainment of the ozone standard. 
See 57 FR 13498, 57 FR 13564 (April 16, 1992). As discussed in the 
direct final rulemaking and in previous rulemakings in other areas 
cited above, EPA has concluded that it is appropriate to interpret the 
more specific RFP, attainment demonstration and related provisions of 
subpart 2 in the same manner. This conclusion was upheld by the U.S. 
Court of Appeals for the 10th Circuit, Sierra Club v. EPA 99f.3d 1551 
(10th Cir. 1996). According to the May 10, 1995 policy memo, three 
consecutive years of complete, quality assured ambient air quality 
monitoring data is the sole determinant of whether the Richmond area 
has attained the standard and is therefore eligible for a determination 
that certain part D requirements do not apply, for as long as the 
Richmond area continues to attain the standard, or until the area is no 
longer designated nonattainment.
    Comment #2
    NYSDEC also contests EPA's statement in the redesignation request 
and maintenance plan proposed rulemaking that the Commonwealth of 
Virginia has a fully approved SIP for the Richmond area under section 
110(a)(2). NYSDEC states that any NOX exemption petition 
would also be invalid because section 110(a)(2)(D) prohibits granting 
an exemption from NOX RACT pursuant to section 182(f) of the 
CAA where there is evidence that the exemption would interfere with 
attainment of a NAAQS in another state. Therefore, NSYDEC claims the 
redesignation request does not meet this prerequisite for redesignation 
of section 107 of the CAA that the Commonwealth have a fully approved 
SIP under section 110(a)(2).
    Response #2
    Upon careful consideration of this comment, EPA concludes that this 
comment is relevant only to the proposed approval of the redesignation 
to attainment and not EPA's July 13, 1997 decision that the RFP, 
attainment demonstration and section 172(c)(9) contingency measure 
requirements of the CAA are inapplicable to Richmond. The commenter 
objected to the proposed approval of the redesignation request on the 
grounds that the area failed to implement RACT on major sources of 
NOX. The commenter did not object to the determination that 
the area has attained the standard or that certain requirements of the 
CAA are no longer applicable for so long as the area continues to 
attain the standard, or until the area is no longer designated 
nonattainment.
    While section 107 of the CAA requires the Commonwealth to have a 
fully approved SIP under section 110(a)(2) prior to redesignation to 
attainment, the determination of the inapplicability of certain part D 
requirements is based solely on air quality data. There is no 
requirement to have a fully approved SIP under section 110(a)(2) to be 
eligible for a determination that the area is attaining the standard 
and that, therefore, certain part D requirements of the CAA for RFP, 
attainment demonstration and other requirements of sections 172(c)(2), 
172(c)(9) and 182(b)(1) are inapplicable.
    On July 21, 1997, EPA published final approval of an exemption from 
the NOX RACT requirement for the Richmond area contingent 
upon air quality monitoring that demonstrates continued attainment of 
the ozone NAAQS [62 FR 38922]. In the July 21, 1997 final rulemaking 
action on the NOX exemption, EPA responded to adverse 
comments received that section 110(a)(2)(D) prohibits granting 
exemptions pursuant to section 182(f) where there is evidence that 
granting of the exemption would interfere with attainment of the ozone 
NAAQS in downwind areas. See 62 FR 38926. Furthermore, as EPA responded 
in the final rulemaking, the action to provide a NOX RACT 
waiver under section 182(f) for any area would not shield that state 
from the obligation, in response to a SIP call under section 110 by 
EPA, to obtain NOX emission reductions, if evidence such as 
photochemical grid modeling shows that NOX emissions 
contribute significantly to downwind nonattainment or maintenance in 
another state.
    Comment #3: NSYDEC states that it is not a relevant factor that 
Richmond is now attaining the ozone NAAQS because the Richmond area has 
avoided implementing the NOX RACT requirements of the Act.
    Response #3: As stated above, air quality data is directly relevant 
to this action. As set forth in the May 10, 1995 Seitz memo and 
subsequent rulemakings, EPA is authorized to conduct individual 
rulemakings concerning areas that have three consecutive years of clean 
air quality monitoring data demonstrating attainment of the ozone 
standard to make binding determinations that the areas have attained 
the standard and thus need not make the required SIP submissions for 
RFP, the attainment demonstration and the section 172(c)(9) contingency 
measure requirements for so long as the area remains in attainment, or 
until the area is redesignated to attainment. The fact that the 
Richmond area has not implemented the NOX RACT requirements 
of the CAA is not relevant to EPA's determination of inapplicability of 
these other CAA requirements.
    Other specific requirements of section 110 and the rationale for 
EPA's proposed action are explained in the June 13, 1997 direct final 
rulemaking and other rulemakings referenced in today's action, and will 
not be restated here.

Final Action

    EPA has determined that the Richmond ozone nonattainment area has 
attained the 1-hour .12 ppm ozone standard and continues to attain that 
standard at this time. As a consequence of this determination, the 
requirements of sections 182(b)(1) and 172(c)(2) 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 1-hour .12 ppm ozone standard, or until the area is 
redesignated to attainment.
    EPA emphasizes that this determination is contingent upon the 
continued monitoring and continued attainment and maintenance of the 
ozone NAAQS in the affected area. In the event the area is still 
designated nonattainment and a violation of the ozone NAAQS is 
monitored in the Richmond nonattainment area (consistent with the 
requirements contained in 40 CFR part 58), 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.
    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

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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

    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, EPA certifies 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 approval action proposed/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 section 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 December 5, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
regarding a determination of attainment of ozone standard and a 
determination regarding the applicability of certain CAA requirements 
in the Richmond area 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).)

List of Subjects in 40 CFR Part 52

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

    Dated: September 27, 1997.
William T. Wisniewski,
Acting Regional Administrator, Region III.

    40 CFR part 52, subpart VV of chapter I, title 40 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 November 5, 1997, the 
Richmond ozone nonattainment area, which consists of the counties of 
Chesterfield, Hanover, Henrico, and part of Charles City County, and of 
the cities of Richmond, Colonial Heights and Hopewell, has attained the 
1-hour .12 ppm ozone standard based on three years of air quality data 
for 1993, 1994 and 1995. EPA has further determined 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 the Richmond area for so long as the area does 
not monitor any violations of the 1-hour .12 ppm ozone standard, or 
until the area is no longer designated nonattainment. If a violation of 
the ozone NAAQS is monitored in the Richmond ozone nonattainment area 
while the area is designated nonattainment, these determinations shall 
no longer apply.

[FR Doc. 97-26444 Filed 10-3-97; 8:45 am]
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