[Federal Register Volume 70, Number 94 (Tuesday, May 17, 2005)]
[Proposed Rules]
[Pages 28264-28267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9785]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-WV-0001; FRL-7914-1]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia, Attainment Demonstration for the Eastern Panhandle 
Region Ozone Early Action Compact Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of West Virginia. This proposed 
revision consists of an Early Action Compact (EAC) Plan that will 
enable the Eastern Panhandle Region Ozone EAC Area to demonstrate 
attainment and maintenance of the 8-hour ozone national ambient air 
quality (NAAQS) standard. This action is being taken under the Clean 
Air Act (CAA).

DATES: Written comments must be received on or before June 16, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-WV-0001 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: [email protected].
    D. Mail: R03-OAR-2005-WV-0001, David Campbell, Chief, Air Quality 
Planning Branch, 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 RME ID No. R03-OAR-2005-WV-
0001. 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.docket.epa.gov/rmepub/, 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 RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or 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 
RME index at http://www.docket.epa.gov/rmepub/. 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 RME 
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, 7012 MacCorkle Avenue, SE., 
Charleston, West Virginia 25304-2943.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On December 29, 2004, the State of West 
Virginia submitted a revision to its SIP. This revision consists of the 
Early Action Plan (EAP) for the Eastern Panhandle Region Ozone EAC Area 
which consists of Berkeley and Jefferson Counties.

I. Background

    In 1997, EPA established a new 8-hour ozone NAAQS that addresses 
the longer-term impact of ozone at lower levels. As such, the new 
standard is set at a lower level, 0.08 parts per million (ppm) than the 
previous 1-hour standard, 0.120 ppm, and is more protective of human 
health. Attainment of the 8-hour ozone standard is determined by 
averaging three years of the fourth highest 8-hour ozone levels as 
recorded by ambient air quality monitor(s) in an area. This number, 
called the design value, must be lower than 85 parts per billion (ppb) 
to comply with the standard. Currently, Berkeley and Jefferson 
Counties' official design value based on quality-assured air quality 
data for the period 2001-2003 is 86 ppb.\1\
---------------------------------------------------------------------------

    \1\ To attain the 8-hour national ambient air quality standard 
(NAAQS) for ozone requires the fourth highest 8-hour daily maximum 
ozone concentration, average over three consecutive years, to be <= 
80 parts per billion (ppb) at each monitoring site (See 40 CFR Part 
50.10, Appendix I, paragraph 2.3). Because of the stipulations for 
rounding significant figures, this equates to a modeled attainment 
target of <= 84 ppb. Because non-significant figures are truncated, 
a modeling estimate of < 85 ppb is equivalent to <= 84 ppb.

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

[[Page 28265]]

    To begin to address the elevated ozone concentrations in the 
Eastern Panhandle Region, the West Virginia Department of Environmental 
Protection (WVDEP) investigated voluntary actions that could be 
implemented proactively to improve air quality. West Virginia found the 
most promising of all the options explored is EPA's EAC program. EAC's 
are voluntary agreements entered into by affected local jurisdictions, 
state regulatory agencies, and EPA to develop EAPs to reduce ozone 
precursor pollutants, such as nitrogen oxides (NOX) and 
volatile organic compounds (VOCs) and improve local air quality. The 
goal of the EAP is to bring about a positive change to local air 
quality on a schedule that is faster than the traditional regulatory 
nonattainment area designation and air quality planning process. These 
plans include the same components of traditional SIPs for nonattainment 
areas: emissions inventories, control strategies, schedules and 
commitments, and a demonstration of attainment based on photochemical 
modeling.
    The goal of an EAP is to develop a comprehensive strategy that will 
allow an area to achieve attainment of the 8-hour ozone standard by 
2007. This goal is accomplished by selecting and implementing the local 
ozone precursor pollutant control measures and other state and 
nationally-implemented control measures that reduce emissions and 
allows the area to comply with the NAAQS for ozone. Areas successful in 
developing a plan that demonstrates attainment of the 8-hour ozone 
standard by 2007 will receive a deferral of the effective date of the 
nonattainment designation for the area from EPA. This deferral will 
remain in place as long as certain milestones are met, such as 
implementation of local controls by 2005. If the interim milestones are 
met and the area demonstrates attainment of the standard during the 
period from 2005 to 2007, based on quality-assured air quality data, 
then the nonattainment designations will be withdrawn by EPA and the 
area will face no further regulatory requirements. If an area fails at 
any point in the process, the nonattainment designation will become 
effective, along with the associated regulatory requirements of such a 
designation.
    In December 2002, a number of states entered into EAC agreements, 
pledging to reduce emissions earlier than required by the Act for 
compliance with the 8-hour ozone standard. These states and local 
communities had to meet specific criteria and agreed to meet certain 
milestones for development and implementation of their individual EAC 
agreements. States with communities participating in the EAC program 
had to submit plans for meeting the 8-hour ozone standard by December 
31, 2004, rather than the June 15, 2007 deadline applicable to all 
other areas not meeting the standard. The EACs required communities to 
develop and implement air pollution control strategies, account for 
emissions growth, and demonstrate attainment and maintenance of the 8-
hour ozone standard. Greater details on the EAC program are explained 
in EPA's December 16, 2003 (68 FR 70108) proposed Federal Register 
notice entitled, ``Deferral of Effective Date of Nonattainment 
Designations for 8-hour Ozone National Ambient Air Quality Standards 
for Early Action Compact Areas.'' In December 2002, the Eastern 
Panhandle Region entered into an EAC with both West Virginia and EPA. 
This compact was signed by all parties involved and then submitted to 
EPA by the required date of December 31, 2002.
    On April 15, 2004, EPA designated all areas for the 8-hour ozone 
standard. EPA deferred the effective date of nonattainment designations 
for EAC areas that were violating the 8-hour standard, but continued to 
meet their established EAC milestones. On April 30, 2004 (69 FR 23858), 
EPA published its formal air quality designations and classifications 
for the 8-hour ozone standard. This action included the deferral of the 
effective date for all nonattainment areas that entered into EACs and 
developed EAPs, including the Eastern Panhandle Region Ozone EAC Area. 
Specifically, the Berkeley and Jefferson Counties were designated as a 
``basic'' nonattainment area with the effective date of the designation 
deferred to September 30, 2005. In a separate notice, EPA expects to 
continue to officially defer the effective date of nonattainment 
designation for this Area, among others, in the future so long as the 
Area continues to fulfill its EAC obligations, including semi-annual 
reporting requirements, implementation of the measures in its EAP by 
December 31, 2005, and a progress assessment by June 30, 2006. EPA 
anticipates extending the currently effective deferral for all EAC 
areas from September 30, 2005 until December 31, 2006, provided the 
above conditions are met.

II. Summary of SIP Revision

A. Content of the Eastern Panhandle Region EAC Attainment Demonstration

    As part of its EAP plan, West Virginia developed an attainment 
demonstration supported by an ozone photochemical modeling study 
developed for the Eastern Panhandle Region EAC Area. The attainment 
demonstration identifies a set of measures that will result in emission 
reductions and provides analyses that predict that the measures result 
in ambient air quality concentrations that meet the 8-hour ozone 
standard in the Eastern Panhandle Region EAC Area.
    The attainment demonstration was supported by results of the 
photochemical modeling analysis and technical documentation for all 
ozone monitors in the Eastern Panhandle Region EAC Area. EPA believes 
that the WVDEP's EAC 8-hour ozone photochemical modeling study 
developed for the Eastern Panhandle Region EAC Area meets EPA's current 
modeling requirements. West Virginia has adequately followed all 
relevant EPA guidance in demonstrating that the Eastern Panhandle 
Region EAC Area will attain the 8-hour ozone NAAQS in 2007, and 
continue to do so in 2012. The modeling results predict the maximum 
2007 8-hour ozone design value for this Area to be 81.8 ppb, which is 
less than what is needed (<=84 ppb) to show modeled attainment of the 
8-hour ozone NAAQS.
    The attainment modeling information presented in this notice should 
be used in conjunction with the States's SIP submittal and EPA's 
technical support document (TSD), as certain modeling requirements 
performed by the State (i.e., details of the quality assurance 
performed, detailed analysis of data suitability, complete listings of 
all data inputs and outputs, etc.) are not reproduced in this notice.

B. Measures Included in the EAC SIP

    The Eastern Panhandle Region EAP is designed to enable a proactive 
approach to ensuring attainment of the 8-hour NAAQS. Using the EAP 
approach, the Eastern Panhandle Region EAC Area will be implementing 
emission-reduction measures directed at attaining the 8-hour standard 
starting in 2005. The Area is then required to demonstrate compliance 
with the 8-hour ozone standard by 2007, and maintenance of that 
standard through 2012. Compliance with the standard will be determined 
using ozone monitoring data.
    The EAP control measures for the Eastern Panhandle Region EAC Area

[[Page 28266]]

consist of local and Federal emission reduction strategies. Control 
measures to be implemented on the local level include a suite of non-
regulatory measures which include: Ozone action days geared toward both 
the general public and employers; public awareness program that focuses 
on increasing the public's understanding of air quality issues; bicycle 
and pedestrian measures designed to promote bicycling and walking; 
reduced engine idling for trucks and school buses; voluntary ground 
freight partnership program using incentives to reduce emissions; 
increased public awareness of compliance with open burning 
restrictions; and, school bus engine retrofits to lower emissions. 
Though not included in the modeled demonstration of attainment, 
emission reductions from the implementation of these measures will 
provide additional air quality benefits to the Eastern Panhandle Region 
EAC Area.
    In addition to local strategies, the attainment demonstration for 
the Eastern Panhandle Region EAP includes emission reductions from 
several Federal programs, including but not limited to the following: 
NOX SIP Call; exhaust emission standards for light-duty 
vehicles (passenger cars) and light-duty trucks; Tier 2 vehicle and 
gasoline sulfur program; heavy duty diesel engine and fuel sulfur 
program; and, non-road diesel engine standards (Tier I and Tier II.)
    The NOX SIP Call (63 FR 58356, October 27, 1998) 
required states to implement reductions necessary to address the ozone 
transport problem, and on May 10, 2002, West Virginia submitted its 
NOX Budget Trading Program to meet its Phase I 
NOX SIP Call obligations. West Virginia's Phase I program 
applies to electric generating units that serve a generator greater 
than 25 megawatts and to industrial units greater than 250 mmBTU/hr. 
EPA approved West Virginia's NOX Budget Program on May 10, 
2002 (67 FR 31733). The photochemical modeling that demonstrates 
attainment for the Eastern Panhandle Region EAC Area relies upon 
expected benefits from the NOX Budget Trading Program 
throughout the modeling domain.
    All these measures have been developed to address the creation of 
ozone producing emissions in the local areas as well as to lessen the 
transport of ozone into the area as a comprehensive approach to 
reducing ozone levels. A detailed description of all the control 
measures, including those that were in the attainment demonstration as 
well as those additional measures that are expected to assist the area 
in meeting attainment of the standard in 2007, can be found in the TSD 
prepared in support of this rulemaking.

C. Maintenance for Growth

    Consistent with EPA guidance, the EAP also contains components to 
ensure maintenance of the 8-hour ozone standard through 2012, five 
years beyond the 2007 attainment date. The Eastern Panhandle Region EAC 
Area has developed an emissions inventory for the year 2012, as well as 
a continuing planning process to address this essential part of the 
plan. Due to the emission control measures identified in the EAP, the 
emissions inventory predicted an overall reduction in emissions through 
2012. From 1999 to 2007, nominal increases in VOCs emissions are 
expected. By 2012, VOC emissions will be consistent with 1999 emission 
levels. For NOX, emissions are expected to decline from 1999 
to 2007 by 7.9 percent. By 2012, emissions are predicted to be 3.2 
percent less than those modeled in 2007 for NOX. Using air 
quality models to anticipate the impact of growth, as well as the 
Federal, state-assisted, and locally-implemented measures to reduce 
emissions, West Virginia has projected the Area will be in attainment 
of the 8-hour ozone standard in 2007 and will remain in attainment 
through 2012.
    To fulfill the continuing planning process that will ensure that 
the Eastern Panhandle Region EAC Area will maintain the 8-hour ozone 
standard through 2012, the Eastern Panhandle Region EAP establishes a 
commitment and mechanism to work with local stakeholders to identify 
and require additional measures to further reduce ozone precursor 
emissions. In addition, the EAC signatories and implementing agencies 
will review all EAC activities and report on these results in semi-
annual reports beginning in June 2006. The semi-annual reports will 
track and document, at a minimum, control strategy implementation and 
results, monitoring data, and future plans. Furthermore, as part of the 
SIP submittal, the Eastern Panhandle Region EAC Area commits to submit 
periodic updates to WVDEP and EPA on the implementation status and 
results of the local control program with sufficient details to make 
program sufficiency determinations. Although not required by EPA, the 
Eastern Panhandle Region EAP contains contingency measures which could 
be implemented in response to any unexpected shortfall in anticipated 
reductions. These additional strategies include: Implementation of 
WVDEP reasonably available control technology (RACT) to control VOCs; 
alternative fuels program; truck-stop electrification to discourage 
engine idling; and, the sale of lower Reid Vapor Pressure (RVP) 
gasoline in the area.

III. Proposed Action

    EPA is proposing to approve the attainment demonstration and the 
EAP for the West Virginia Eastern Panhandle Region EAC Area. The 
modeling of the ozone and ozone precursor emissions from sources 
affecting the Eastern Panhandle Region EAC Area demonstrates that the 
specified control strategies will provide for attainment of the 8-hour 
ozone NAAQS by December 31, 2007 and maintenance of that standard 
through 2012. To date, the Eastern Panhandle Region EAC Area has met 
all of its EAC milestones and, as long as the Area continues to meet 
the agreed upon milestones, the nonattainment designation for this Area 
will be deferred until September 30, 2005. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

IV. 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. 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

[[Page 28267]]

specified by Executive Order 13175 (65 FR 67249, 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 approve a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This proposed rule pertaining to the attainment demonstration and EAP 
for the Eastern Panhandle Region Ozone EAC Area, 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 3, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-9785 Filed 5-16-05; 8:45 am]
BILLING CODE 6560-50-P