[Federal Register Volume 70, Number 213 (Friday, November 4, 2005)]
[Proposed Rules]
[Pages 67109-67120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22031]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[R03-OAR-2005-VA-0013; FRL-7993-6]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; Redesignation of the Shenandoah National Park Ozone 
Nonattainment Area To Attainment and Approval of the Area's Maintenance 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to approve a redesignation request and a 
State Implementation Plan (SIP) revision submitted by the Commonwealth 
of Virginia. The Virginia Department of Environmental Quality (VADEQ) 
is requesting that the Shenandoah National Park area (the SNP area) be 
redesignated as attainment for the 8-hour ozone national ambient air 
quality standard (NAAQS). In conjunction with its redesignation 
request, the VADEQ submitted a SIP revision consisting of a maintenance 
plan for the SNP area that provides for continued attainment of the 8-
hour ozone NAAQS for the next 10 years. EPA is proposing to make a 
determination that the SNP area has attained the 8-hour ozone NAAQS 
based upon three years of complete, quality-assured ambient air quality 
ozone monitoring data for 2002-2004. EPA's proposed approval of the 8-
hour ozone redesignation request is based on its

[[Page 67110]]

determination that the SNP area has met the criteria for redesignation 
to attainment specified in the Clean Air Act (CAA). EPA is providing 
information on the status of its adequacy determination for the motor 
vehicle emission budgets (MVEBs) that are identified in the maintenance 
plan for the SNP area for purposes of transportation conformity, and is 
also proposing to approve those MVEBs. EPA is proposing approval of the 
redesignation request and of the maintenance plan revision to the 
Virginia SIP in accordance with the requirements of the CAA.

DATES: Written comments must be received on or before December 5, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2005-VA-0013 by one of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Agency Web site: http://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.
    E-mail: [email protected].
    Mail: R03-OAR-2005-VA-0013, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    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-VA-
0013. 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://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://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 Virginia Department of Environmental Quality, 629 
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'', 
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. What Actions are EPA Proposing to Take?
II. What is the Background for These Proposed Actions?
III. What are the Criteria for Redesignation to Attainment?
IV. Why is EPA Taking These Actions?
V. What Would be the Effect of these Actions?
VI. What is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and 
Identified in the Maintenance Plan for the Shenandoah National Park 
Area Adequate and Approvable?
VIII. General Information Pertaining to SIP Submittals for the 
Commonwealth of Virginia
IX. Proposed Action
X. Statutory and Executive Order Reviews

I. What Actions Are EPA Proposing to Take?

    On September 21, 2005, VADEQ formally submitted a request to 
redesignate the SNP area from nonattainment to attainment of the 8-hour 
NAAQS for ozone. On September 23, 2005, Virginia submitted a 
maintenance plan for the SNP area as a SIP revision, to ensure 
continued attainment over the next 10 years. The SNP area is composed 
of those portions of Page and Madison Counties located within the 
boundaries of Shenandoah National Park. It is currently designated as a 
basic 8-hour ozone nonattainment area. EPA is proposing to determine 
that the SNP area has attained the 8-hour ozone NAAQS and that it has 
met the requirements for redesignation pursuant to section 107(d)(3)(E) 
of the CAA. EPA is, therefore, proposing to approve the redesignation 
request to change the designation of the SNP area from nonattainment to 
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve 
the maintenance plan SIP revision for the area, such approval being one 
of the CAA requirements for approval of a redesignation request. The 
maintenance plan is designed to ensure continued attainment in the SNP 
area for the next 10 years. Additionally, EPA is announcing its action 
on the adequacy process for the MVEBs identified in the maintenance 
plan, and proposing to approve the MVEBs identified for volatile 
organic compounds (VOC) and nitrogen oxides (NOX) for the 
SNP area for transportation conformity purposes.

II. What Is the Background for These Proposed Actions?

A. General

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of NOX and VOC react in the presence of sunlight 
to form ground-level ozone. The air pollutants NOX and VOC 
are referred to as precursors of ozone. The CAA establishes a process 
for air quality management through the attainment and maintenance of 
the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour ozone standard. EPA designated, as 
nonattainment, any area violating the 8-hour ozone NAAQS based on the 
air quality data for the three years of 2001-2003. These were the most 
recent three years of data at the time EPA designated 8-hour areas. The 
SNP area was designated as basic 8-hour ozone nonattainment status in a 
Federal Register notice signed on April 25, 2004

[[Page 67111]]

and published on April 30, 2004 (69 FR 23857).
    The CAA, Title I, part D, contains two sets of provisions--subpart 
1 and subpart 2--that address planning and control requirements for 
nonattainment areas. Subpart 1(which EPA refers to as ``basic'' 
nonattainment) contains general, less prescriptive requirements for 
nonattainment areas for any pollutant--including ozone--governed by a 
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment) 
provides more specific requirements for ozone nonattainment areas. Some 
8-hour ozone nonattainment areas are subject only to the provisions of 
subpart 1. Other areas are also subject to the provisions of subpart 2. 
Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004, 
an area was classified under subpart 2 based on its 8-hour ozone design 
value (i.e., the 3-year average annual fourth-highest daily maximum 8-
hour average ozone concentration), if it had a 1-hour design value at 
or above 0.121 ppm (the lowest 1-hour design value in the CAA for 
subpart 2 requirements). All other areas are covered under subpart 1, 
based upon their 8-hour design values. In 2004, the SNP area was 
designated a basic 8-hour ozone nonattainment area based upon air 
quality monitoring data from 2001-2003, and is subject to the 
requirements of subpart 1.
    Under 40 CFR part 50, the 8-hour ozone standard is attained when 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
average ambient air quality ozone concentrations is less than or equal 
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR 
23857, (April 30, 2004) for further information. Ambient air quality 
monitoring data for the 3-year period must meet data completeness 
requirements. The data completeness requirements are met when the 
average percent of days with valid ambient monitoring data is greater 
than 90 percent, and no single year has less than 75 percent data 
completeness as determined in Appendix I of 40 CFR part 50. The ozone 
monitoring data from the 3-year period of 2002-2004 indicates that the 
SNP area has a design value of 0.082 ppm. Therefore, the ambient ozone 
data for the SNP area indicates no violations of the 8-hour ozone 
standard. Available preliminary monitoring data for 2005 indicates 
continued attainment of the 8-hour ozone standard.

B. The Shenandoah National Park Area

    The SNP area consists of those portions of Page and Madison 
Counties located within the boundaries of the Shenandoah National Park. 
Prior to its designation as an 8-hour ozone nonattainment area, the SNP 
area was designated as an attainment area for the 1-hour ozone 
nonattainment NAAQS.
    On September 21, 2005, the VADEQ requested that the SNP area be 
redesignated to attainment for the 8-hour ozone standard. The 
redesignation request included 3 years of complete, quality-assured 
data for the period of 2002-2004, indicating that the 8-hour NAAQS for 
ozone had been achieved for the SNP area. The data satisfies the CAA 
requirements when the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ozone concentration (commonly referred to as the 
area's design value) is less than or equal to 0.08 ppm (i.e., 0.084 ppm 
when rounding is considered). Under the CAA, a nonattainment area may 
be redesignated if sufficient complete, quality-assured data is 
available to determine that the area has attained the standard and the 
area meets the other CAA redesignation requirements set forth in 
section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA, 
allows for redesignation, providing that:
    (1) EPA determines that the area has attained the applicable NAAQS;
    (2) EPA has fully approved the applicable implementation plan for 
the area under section 110(k);
    (3) EPA determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions;
    (4) EPA has fully approved a maintenance plan for the area as 
meeting the requirements of section 175A; and
    (5) The state containing such area has met all requirements 
applicable to the area under section 110 and part D.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:
     ``Ozone and Carbon Monoxide Design Value Calculations'', 
Memorandum from Bill Laxton, June 18, 1990;
     ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
     ``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John 
Calcagni Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSD's) for Redesignation 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from 
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
     ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On 
or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
     Memorandum from D. Kent Berry, Acting Director, Air 
Quality Management Division, to Air Division Directors, Regions 1-10, 
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and 
CO Nonattainment Areas,'' dated November 30, 1993;
     ``Part D New Source Review (part D NSR) Requirements for 
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
     ``Reasonable Further Progress, Attainment Demonstration, 
and Related Requirements for Ozone Nonattainment Areas Meeting the 
Ozone National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 10, 
1995.

IV. Why Is EPA Taking These Actions?

    On September 21, 2005, the VADEQ requested redesignation of the SNP 
area to attainment for the 8-hour ozone

[[Page 67112]]

standard. On September 23, 2005, the VADEQ submitted a maintenance plan 
for the SNP area as a SIP revision, to assure continued attainment over 
the next 10 years. EPA has determined that the SNP area has attained 
the standard and has met the requirements for redesignation set forth 
in section 107(d)(3)(E).

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the designation 
of the SNP area from nonattainment to attainment for the 8-hour ozone 
NAAQS found at 40 CFR part 81. It would also incorporate into the 
Virginia SIP a maintenance plan ensuring continued attainment of the 8-
hour ozone NAAQS in the SNP area for the next 10 years. The maintenance 
plan includes contingency measures to remedy any future violations of 
the 8-hour NAAQS (should they occur), and identifies the MVEBs for 
NOX and VOC for transportation conformity purposes for the 
years 2004, 2009 and 2015. These MVEBs are displayed in the following 
table:

     Table 1.--Motor Vehicle Emissions Budgets in Tons Per Day (tpd)
------------------------------------------------------------------------
                      Year                            NOX         VOC
------------------------------------------------------------------------
2004............................................       0.075       0.042
2009............................................       0.057       0.038
2015............................................       0.035       0.029
------------------------------------------------------------------------

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

    EPA is proposing to determine that the SNP nonattainment area has 
attained the 8-hour ozone standard and that all other redesignation 
criteria have been met. The following is a description of how the 
VADEQ's September 21, 2005 and September 23, 2005 submittals satisfy 
the requirements of section 107(d)(3)(E) of the CAA.

A. The Shenandoah National Park Area Has Attained the 8-Hour Ozone 
NAAQS

    EPA is proposing to determine that the SNP area has attained the 8-
hour ozone NAAQS. For ozone, an area may be considered to be attaining 
the 8-hour ozone NAAQS if there are no violations, as determined in 
accordance with 40 CFR 50.10 and Appendix I of part 50, based on three 
complete, consecutive calendar years of quality-assured air quality 
monitoring data. To attain this standard, the 3-year average of the 
fourth-highest daily maximum 8-hour average ozone concentrations 
measured at each monitor within the area over each year must not exceed 
the ozone standard of 0.08 ppm. Based on the rounding convention 
described in 40 CFR part 50, appendix I, the standard is attained if 
the design value is 0.084 ppm or below. The data must be collected and 
quality-assured in accordance with 40 CFR part 58, and recorded in the 
Aerometric Information Retrieval System (AIRS). The monitors generally 
should have remained at the same location for the duration of the 
monitoring period required for demonstrating attainment.
    In the SNP area there is one ozone monitor, located in Madison 
County/Big Meadows (the Big Meadows Monitor), that measures air quality 
with respect to ozone. As part of its redesignation request, Virginia 
submitted ozone monitoring data for the years 2002-2004 (the most 
recent three years of data available as of the time of the 
redesignation request). This data has been quality assured and is 
recorded in AIRS. The fourth high 8-hour daily maximum concentrations, 
along with the three-year average, are summarized in Table 2.

 Table 2.--Shenandoah National Park Nonattainment Area Fourth Highest 8-
      Hour Average Values; Big Meadows Monitor, AIRS ID 51-113-0003
------------------------------------------------------------------------
                                                              Annual 4th
                                                                 high
                            Year                                reading
                                                                 (ppm)
------------------------------------------------------------------------
2002........................................................       0.086
2003........................................................       0.086
2004........................................................       0.075
                                                             -----------
    The average for the 3-year period 2002 through 2004 is 0.082 ppm
------------------------------------------------------------------------

    The data for 2002-2004 show that the area has attained the 
standard, and preliminary data for the 2005 ozone season show that the 
area continues to attain the standard. The data collected at the Big 
Meadows monitor satisfies the CAA requirement that the 3-year average 
of the annual fourth-highest daily maximum 8-hour average ozone 
concentration is less than or equal to 0.08 ppm. The VADEQ's request 
for redesignation for the SNP area indicates that the data was quality 
assured in accordance with 40 CFR part 58. The VADEQ uses AIRS as the 
permanent database to maintain its data and quality assures the data 
transfers and content for accuracy. In addition, as discussed below 
with respect to the maintenance plan, VADEQ has committed to continue 
monitoring in accordance with 40 CFR part 58. In summary, EPA has 
determined that the data submitted by Virginia indicates that the SNP 
area has attained the 8-hour ozone NAAQS.

B. The Shenandoah National Park Area Has Met All Applicable 
Requirements Under Section 110 and Part D of the CAA and the Area Has a 
Fully Approved SIP Under Section 110(k) of the CAA

    EPA has determined that Virginia has met all SIP requirements for 
the SNP area applicable for purposes of redesignation under section 110 
of the CAA (General SIP Requirements) and that it meets all applicable 
SIP requirements under Part D of Title 1 of the CAA, in accordance with 
section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP 
is fully approved with respect to all requirements applicable for 
purposes of redesignation in accordance with section 107(d)(3)(E)(ii). 
In making these proposed determinations, EPA ascertained what 
requirements are applicable to the area, and determined that the 
applicable portions of the SIP meeting these requirements are fully 
approved under section 110(k) of the CAA. We note that SIPs must be 
fully approved only with respect to applicable requirements.
    The September 4, 1992 Calcagni memorandum (``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E) with respect to the timing of applicable requirements. 
Under this interpretation, to qualify for redesignation, states 
requesting redesignation to attainment must meet only the relevant CAA 
requirements that come due prior to the submittal of a complete 
redesignation request. See also Michael Shapiro memorandum, September 
17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of 
Detroit-Ann Arbor). Applicable requirements of the CAA that come due 
subsequent to the area's submittal of a complete redesignation request 
remain applicable until a redesignation is approved, but are not 
required as a prerequisite to redesignation. Section 175A(c)of the CAA. 
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 
25427 (May 12, 2003) (redesignation of St. Louis).
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control

[[Page 67113]]

measures, means, or techniques, provisions for the establishment and 
operation of appropriate devices necessary to collect data on ambient 
air quality, and programs to enforce the limitations. The general SIP 
elements and requirements set forth in section 110(a)(2) include, but 
are not limited to, the following:
     Submittal of a SIP that has been adopted by the state 
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate 
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for 
the implementation of Part C requirement (Prevention of Significant 
Deterioration (PSD));
     Provisions for the implementation of Part D requirements 
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in 
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a state from significantly contributing to air 
quality problems in another state. To implement this provision, EPA has 
required certain states to establish programs to address transport of 
air pollutants in accordance with the NOX SIP Call, October 
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May 
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean 
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25161). However, the 
section 110(a)(2)(D) requirements for a state are not linked with a 
particular nonattainment area's designation and classification in that 
state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classification are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state.
    Thus, we do not believe that these requirements should be construed 
to be applicable requirements for purposes of redesignation. In 
addition, EPA believes that the other section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The Commonwealth will still be subject to these 
requirements after the SNP area is redesignated. The section 110 and 
Part D requirements, which are linked with a particular area's 
designation and classification, are the relevant measures to evaluate 
in reviewing a redesignation request. This policy is consistent with 
EPA's existing policy on applicability of conformity (i.e., for 
redesignations) and oxygenated fuels requirement. See Reading, 
Pennsylvania, proposed and final rulemakings 61 FR 53174-53176 (October 
10, 1996), 62 FR 24816 (May 7, 1997); Cleveland-Akron-Lorain, Ohio, 
final rulemaking 61 FR 20458 (May 7, 1996); and Tampa, Florida, final 
rulemaking 60 FR 62748 (December 7, 1995). See also the discussion on 
this issue in the Cincinnati redesignation 65 FR 37890 (June 19, 2000), 
and in the Pittsburgh redesignation 66 FR 50399 (October 19, 2001). 
Similarly, with respect to the NOX SIP Call rules, EPA noted 
in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the 
NOX SIP Call rules are not ``an `applicable requirement' for 
purposes of section 110(l) because the NOX rules apply 
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Any section 110 requirements that are linked to the Part D requirements 
for 8-hour ozone nonattainment areas are not yet due, because, as we 
explain later in this notice, no Part D requirements applicable for 
purposes of redesignation under the 8-hour standard became due prior to 
submission of the redesignation request.
    Because the Virginia SIP satisfies all of the applicable general 
SIP elements and requirements set forth in section 110(a)(2), EPA 
concludes that Virginia has satisfied the criterion of section 
107(d)(3)(E) regarding section 110 of the Act.
2. Part D Nonattainment Area Requirements Under the 8-Hour Standard
    The SNP area was designated a basic nonattainment area for the 8-
hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of 
Part D, set forth the basic nonattainment requirements for all 
nonattainment areas. Since the SNP area was in attainment for the 1-
hour standard at the time of its designation as a basic 8-hour ozone 
nonattainment area on April 30, 2004, no Part D submittals under the 1-
hour standard were required or made for this area.
    Section 182 of the CAA, found in subpart 2 of part D, establishes 
additional specific requirements depending on the area's nonattainment 
classification. The SNP area was classified as a subpart 1 
nonattainment area; therefore, no subpart 2 requirements apply to this 
area.
    With respect to the 8-hour standard, EPA proposes to determine that 
the Virginia SIP meets all applicable SIP requirements under Part D of 
the CAA, because no 8-hour ozone standard Part D requirements 
applicable for purposes of redesignation became due prior to submission 
of the area's redesignation request. Because the Commonwealth submitted 
a complete redesignation request for the SNP area prior to the deadline 
for any submissions required under the 8-hour standard, we have 
determined that the part D requirements do not apply to the SNP area 
for the purposes of redesignation.
    In addition to the fact that Part D requirements applicable for 
purposes of redesignation did not become due prior to submission of the 
redesignation request, EPA believes it is reasonable to interpret the 
general conformity and NSR requirements as not requiring approval prior 
to redesignation.
    With respect to section 176, Conformity Requirements, section 
176(c) of the CAA requires states to establish criteria and procedures 
to ensure that Federally supported or funded projects conform to the 
air quality planning goals in the applicable SIP. The requirement to 
determine conformity applies to transportation plans, programs, and 
projects developed, funded or approved under Title 23 U.S.C. and the 
Federal Transit Act (``transportation conformity'') as well as to all 
other Federally supported or funded projects (``general conformity''). 
State conformity revisions must be consistent with Federal conformity 
regulations relating to consultation, enforcement and enforceability 
that the CAA required the EPA to promulgate.
    EPA believes it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) since state conformity rules 
are still required after redesignation and Federal conformity rules 
apply where state rules have not been approved. See Wall v. EPA, 265 F. 
3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. See 
also 60 FR 62748 (Dec. 7, 1995).
    EPA has also determined that areas being redesignated need not 
comply with the requirement that a NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
standard without Part D NSR in effect,

[[Page 67114]]

because PSD requirements will apply after redesignation. The rationale 
for this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled, 
``Part D NSR Requirements or Areas Requesting Redesignation to 
Attainment.'' Virginia has demonstrated that the area will be able to 
maintain the standard without Part D NSR in effect in the SNP area, and 
therefore, Virginia need not have a fully approved Part D NSR program 
prior to approval of the redesignation request. Virginia's SIP-approved 
PSD program will become effective in the area upon redesignation to 
attainment in the SNP area. See rulemakings for Detroit, MI (60 FR 
12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 
20469-70, May 7, 1996); Louisville, KY (66 FR 53665, October 23, 2001); 
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
3. The Area Has a Fully Approved SIP for the Purposes of Redesignation
    EPA has fully approved the Virginia SIP for the purposes of 
redesignation. EPA may rely on prior SIP approvals in approving a 
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania 
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall 
v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it 
may approve in conjunction with a redesignation action. See 68 FR 25425 
(May 12, 2003) and citations therein. The SNP area was in attainment 
for the 1-hour standard at the time of its designation as a basic 8-
hour ozone nonattainment area on April 30, 2004. Because the area had 
not previously been designated as nonattainment, no Part D SIP 
submittals were previously required. Because there are no current SIP 
submission requirements applicable for the purposes of redesignation of 
the SNP area, the applicable implementation plan satisfies all 
pertinent SIP requirements. As indicated previously, EPA believes that 
the section 110 elements not connected with Part D nonattainment plan 
submissions and not linked to the area's nonattainment status are not 
applicable requirements for purposes of redesignation. EPA also 
believes that no 8-hour Part D requirements applicable for purposes of 
redesignation have yet become due for the SNP area, and therefore they 
need not be approved into the SIP prior to redesignation.
4. The Air Quality Improvement in the Shenandoah National Park Area Is 
Due to Permanent and Enforceable Reductions in Emissions Resulting From 
Implementation of the SIP and Applicable Federal Air Pollution Control 
Regulations and Other Permanent and Enforceable Reductions
    EPA believes that the Commonwealth has demonstrated that the 
observed air quality improvement in the area is due to permanent and 
enforceable reductions in emissions resulting from implementation of 
the SIP, Federal measures, and other state-adopted measures. Emissions 
reductions attributable to these rules are shown in Table 3. It should 
be noted that within the SNP area boundaries, no point sources with 
emissions greater than 10 tons per year (tpy) of either VOC or 
NOX exist, therefore point source emissions equal zero.

                          Table 3.--Total VOC and NOX Emissions for 2002 and 2004 (tpd)
----------------------------------------------------------------------------------------------------------------
                   Year                         Point        Area\*\       Nonroad       Mobile         Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
                                           ---------------------------------------------------------------------
Year 2002.................................             0         0.390         0.182         0.052         0.624
Year 2004.................................             0         0.375         0.162         0.042         0.579
Diff. (02-04).............................             0        -0.014        -0.020        -0.010        -0.044
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
 Year 2002................................             0         0.212         0.145         0.089         0.446
Year 2004.................................             0         0.204         0.136         0.075         0.415
Diff. (02-04).............................             0        -0.008        -0.009        -0.014       -0.031
----------------------------------------------------------------------------------------------------------------
\*\ Area source category includes emissions from motor vehicle refueling.

    Between 2002 and 2004, VOC emissions were reduced by 0.044 tpd, and 
NOX emissions were reduced by 0.031 tpd, due to the 
following permanent and enforceable measures implemented or in the 
process of being implemented in the SNP area:

Programs Currently in Effect

    (a) National Low Emission Vehicle (NLEV);
    (b) Motor vehicle fleet turnover with new vehicles meeting the Tier 
2 standards; and,
    (c) Low-sulfur gasoline.
    Virginia has demonstrated that the implementation of permanent 
enforceable emissions controls have reduced local VOC and 
NOX emissions. Nearly all of these reductions are 
attributable to mobile source emission controls such as NLEV and Tier I 
programs. These mobile programs produced 0.010 tpd of VOC reductions 
and 0.014 tpd of NOX reductions.
    Additionally, Virginia has indicated in its submittal that the 
NOX SIP Call took effect in 2004. While there are no subject 
sources currently located in the SNP area, Virginia's redesignation 
request explains that the SNP area indirectly benefits in terms of 
improved air quality due to this program. The VADEQ estimates that 
between 2003 and 2004, emissions of NOX were reduced from 
facilities located within Virginia and subject to the NOX 
SIP Call by approximately 7,400 tons during the ozone season (May 1st 
through September 30th). The VADEQ believes that these emission 
reductions, which are taking place outside the SNP area, are 
significant in improving the SNP area's air quality.
    Other regulations, such as the non-road diesel, 69 FR 39858 (June 
29, 2004), the heavy duty engine and vehicle standards, 66 FR 5002 
(January 18, 2001) and the new Tier 2 tailpipe standards for 
automobiles, 65 FR 6698 (January 10, 2000), are also expected to 
greatly reduce emissions throughout the country and thereby reduce the 
transported emissions impacting the SNP area monitor. The Tier 2 
standards came into effect in 2004, and by 2030, EPA expects that the 
new Tier 2 standards will reduce NOX emissions by about 74 
percent. EPA believes that permanent and enforceable emissions 
reductions are the cause of the long-term improvement in ozone levels 
and are the cause of the area achieving

[[Page 67115]]

attainment of the 8-hour ozone standard.
5. The Shenandoah National Park Area Has a Fully Approved Maintenance 
Plan Pursuant to Section 175A of the CAA
    In conjunction with its request to redesignate the SNP area to 
attainment status, Virginia submitted a SIP revision to provide for 
maintenance of the 8-hour ozone NAAQS in the area for at least 10 years 
after redesignation.

What Is Required in a Maintenance Plan?

    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after approval of a 
redesignation of an area to attainment. Eight years after the 
redesignation, the Commonwealth must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 
next 10-year period following the initial 10-year period. To address 
the possibility of future NAAQS violations, the maintenance plan must 
contain such contingency measures, with a schedule for implementation, 
as EPA deems necessary to assure prompt correction of any future 8-hour 
ozone violations. Section 175A of the CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni memorandum dated September 4, 1992, provides 
additional guidance on the content of a maintenance plan. An ozone 
maintenance plan should address the following provisions:
    (a) An attainment emissions inventory;
    (b) A maintenance demonstration;
    (c) A monitoring network;
    (d) Verification of continued attainment; and
    (e) A contingency plan.

Analysis of the Shenandoah National Park Area Maintenance Plan

    (a) Attainment Inventory--An attainment inventory includes the 
emissions during the time period associated with the monitoring data 
showing attainment. The VADEQ determined that the appropriate 
attainment inventory year is 2004. That year establishes a reasonable 
year within the 3-year block of 2002-2004 as a baseline and accounts 
for reductions attributable to implementation of the CAA requirements 
to date.
    The VADEQ prepared comprehensive VOC and NOX emissions 
inventories for the SNP area, including area, mobile on-road, and 
mobile non-road sources for a base year of 2002. The SNP area does not 
have any point sources with actual emissions greater than 10 tpy, 
therefore they were not included in the emissions inventory (see the 
point source discussion). All inventories are based on actual emissions 
for a ``typical summer day'' and consist of a list of sources and their 
associated emissions. An attainment year of 2004 was used for the SNP 
area since it is a reasonable year within the 3-year block of 2002-2004 
and accounts for reductions attributable to implementation of the CAA 
requirements to date.
    To develop the NOX and VOC base year emissions 
inventories, VADEQ used the following approaches and sources of data:
    (i) Point source emissions--The SNP area is rural and considered a 
Class I area. No industrial facilities exist within the Shenandoah 
National Park boundaries. Also, there are no other point sources, such 
as those used for heating purposes, with actual emissions of more than 
10 tpy of either NOX or VOC. A complete point source 
emissions inventory may be found in Air Emissions Inventory for 
Shenandoah National Park, which is in Appendix B of both the 
maintenance plan and the redesignation request that are in the docket 
for this proposed action. The registration database used and maintained 
by VADEQ also does not contain any sources emitting more than 10 tpy of 
ozone precursors. Because the SNP area lies solely within the 
boundaries of Shenandoah National Park, EPA believes VADEQ's assumption 
that there will be no point source growth in this inventory area is 
reasonable.
    (ii) Area source emissions--The area source emissions were 
developed using the 2002 periodic year stationary area source emissions 
inventories along with growth factors. Before attempting to calculate 
the growth factors, VADEQ determined the appropriate annual growth rate 
representative of each industry or indicator. ``Growth Rate'' refers to 
the annual percentage of growth that occurs in a category per year. The 
area source growth rate estimates also involve the use of current local 
source data, including area populations and employment data by source 
type.
    The 2002 emissions data for forest fires was developed to estimate 
wildfire emissions. However, 2002 was not considered a typical year for 
wildfires. The VADEQ stated that an analysis of 10 years of fire data 
was used to develop a ``typical'' year's estimates for wildfire 
emissions in the SNP area. This ``typical'' year is approximately 20 
percent less than actual emissions estimated for 2002. Based on this 
information, the SNP area wildfire data were estimated by decreasing 
the emissions from 2002 downward 20 percent. It should be noted that 
the Shenandoah National Park has a fire management plan that looks 
forward 5 years and recommends prescribed burning for the health and 
well being of the wilderness. These 5-year plans are conservative in 
nature; generally weather and resource constraints do not allow the 
full implementation of all planned fires in any year. The 5-year plan 
tries to manage prescribed burning throughout the Shenandoah National 
Park; therefore assuming a growth factor larger than 1.0000 would 
overestimate emissions from this category.
    (iii) On-road mobile source emissions--The process of estimating 
on-road mobile source emissions consists of two components: Vehicular-
related activity (i.e., VMT) and an average rate of pollutant produced 
as a result of a particular level of activity. The SNP area traffic 
data was obtained from the report entitled, ``NPS Traffic Monitoring 
Program, Coverage Count, and Data Reporting Project for Shenandoah 
National Park,'' dated March 12, 2004, which is in Appendix B of both 
the maintenance plan and the redesignation request that are in the 
docket for this proposed action. This report included VMT for 5 roadway 
segments within Shenandoah National Park. Since the SNP area only 
includes the portion of Shenandoah National Park within the boundaries 
of Page and Madison Counties, the VMT was adjusted downward to exclude 
that occurring outside the SNP area boundary. Based on information 
found in the previously cited document, vehicle travel through the Park 
appears to have been declining in recent years. A pollutant emission 
rate, associated with these particular levels of activity, was 
estimated using MOBILE6.2 emissions factors. The VADEQ has provided 
detailed data summaries to document the calculations of mobile on-road 
VOC and NOX emissions for 2002, as well as for the 
projection years of 2004, 2009, and 2015 (shown in tables 4 and 5 
below). The mobile on-road source emissions projections include the 
National Low Emissions Vehicle Program (NLEV), the 2004 Tier 2 and Low 
Sulfur Gasoline Rule, the 2004 and 2007 Heavy-Duty Diesel Vehicle 
Rules, and the 2006 Low Sulfur Diesel Rule.
    (iv) Mobile non-road emissions--The mobile non-road emissions were 
calculated using the NONROAD2004

[[Page 67116]]

model, which incorporates the projected emission reductions resulting 
from EPA's Clean Air Non-road Diesel Rule. The mobile non-road 
emissions calculated by the model were scaled down based on equipment 
population data to account for a growth factor of 1.0 in the non-road 
category. The assumption of no growth is supported by the very nature 
of the Shenandoah National Park, which strives to minimize the human 
footprint on the wilderness area, as well as the visitation data that 
shows a declining trend in Shenandoah National Park visitors since 
1993.
    The 2004 attainment year VOC and NOX emissions for the 
SNP area are summarized along with the 2009 and 2015 projected 
emissions for this area in tables 4 and 5 below, which covers the 
demonstration of maintenance for this area. EPA has concluded that 
Virginia has adequately derived and documented the 2004 attainment year 
VOC and NOX emissions for this area.
    (b) Maintenance Demonstration--On September 23, 2005, the VADEQ 
submitted a SIP revision to supplement its September 21, 2005 
redesignation request. The submittal by VADEQ consists of the 
maintenance plan as required by section 175A of the CAA. This plan 
shows maintenance of the 8-hour ozone NAAQS by demonstrating that 
current and future emissions of VOC and NOX remain at or 
below the attainment year 2004 emissions levels throughout the SNP area 
through the year 2015. A maintenance demonstration need not be based on 
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001); Sierra Club v. 
EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 
(October 19, 2001), 68 FR 25430-32 (May 12, 2003).
    Tables 4 and 5 specify the VOC and NOX emissions for the 
SNP area for 2004, 2009, and 2015. The VADEQ chose 2009 as an interim 
year in the 10-year maintenance demonstration period to demonstrate 
that the VOC and NOX emissions are not projected to increase 
above the 2004 attainment level during the time of the 10-year 
maintenance period.

                                Table 4.--Total VOC Emissions for 2004-2015 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                2004 VOC          2009 VOC          2015 VOC
                      Source category                           emissions         emissions         emissions
----------------------------------------------------------------------------------------------------------------
Mobile \1\................................................             0.042             0.028             0.019
Nonroad...................................................             0.162             0.109             0.081
Area \2\..................................................             0.375             0.378             0.383
Point.....................................................                 0                 0                 0
                                                           -----------------------------------------------------
    Total.................................................             0.579             0.514            0.483
----------------------------------------------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions.


                                  Table 5.--Total NOX Emissions 2004-2015 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                2004 NOX          2009 NOX          2015 NOX
                      Source category                           emissions         emissions         emissions
----------------------------------------------------------------------------------------------------------------
Mobile1...................................................             0.075             0.047             0.025
Nonroad...................................................             0.136             0.110             0.077
Area......................................................             0.204             0.204             0.204
Point.....................................................                 0                 0                 0
                                                           -----------------------------------------------------
    Total.................................................             0.415             0.361            0.306
----------------------------------------------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.

    Additionally, the following mobile programs are either effective or 
due to become effective and will further contribute to the maintenance 
demonstration of the 8-hour ozone NAAQS:
     Heavy duty diesel on-road (2004/2007) and low-sulfur on-
road (2006); 66 FR 2001 (January 18, 2001); and
     Non-road emissions standards (2008) and off-road diesel 
fuel (2007/2010); 69 FR 39858 (June 29, 2004).
    In addition to the permanent and enforceable measures, the Clean 
Air Interstate Transport Rule (CAIR), promulgated May 12, 2005, (70 FR 
25161) should have positive impacts on the Commonwealth's air quality. 
CAIR, which will be implemented in the eastern portion of the country 
in two phases (2009 and 2015) should reduce long range transport of 
ozone precursors, which will have a beneficial effect on the air 
quality in the SNP area.
    Based upon the comparison of the projected emissions and the 
attainment year emissions along with the additional measures, EPA 
concludes that VADEQ has successfully demonstrated that the 8-hour 
ozone standard should be maintained in the SNP area.
    (c) Monitoring Network--There is currently one monitor measuring 
ozone in the SNP area. Virginia and the National Park Service, which 
operates the Big Meadows monitoring station, will continue to operate 
its current air quality monitor in accordance with 40 CFR part 58. 
Should measured mobile source parameters change significantly over 
time, the Commonwealth will perform a saturation monitoring study to 
determine the need for, and location of, additional permanent monitors.
    (d) Verification of Continued Attainment--The Commonwealth of 
Virginia has the legal authority to implement and enforce specified 
measures necessary to attain and maintain the NAAQS. Additionally, 
federal programs such as the NLEV program, Tier2/Low Sulfur Gasoline 
Rule, 2007 On-Road Diesel Engine Rule, and Federal Non-road Engine/
Equipment Rules will continue to be implemented on a national level. 
These programs help provide the reductions necessary for the SNP area 
to maintain attainment.
    In addition to maintaining the key elements of its regulatory 
program, the Commonwealth will acquire ambient and source emissions 
data to track attainment and maintenance. The VADEQ will track the 
progress of the maintenance demonstration by

[[Page 67117]]

periodically updating the emissions inventory. This tracking will 
consist of annual and periodic evaluations. The annual evaluation will 
consist of checks on key emissions trend indicators such as the annual 
emissions update of stationary sources, the Highway Performance 
Monitoring System (HPMS) VMT data reported to the Federal Highway 
Administration, and other growth indicators. These indicators will be 
compared to the growth assumptions used in the plan to determine if the 
predicted versus the observed growth remains relatively constant. The 
Commonwealth will also develop and submit comprehensive tracking 
inventories to EPA every three years during the maintenance plan 
period. For the purpose of performing this tracking function for point 
sources, the Commonwealth will retain the annual emission statement 
requirements for the maintenance area (9 VAC 5-20-160).
    (e) The Maintenance Plan's Contingency Measures--The contingency 
plan provisions are designed to promptly correct a violation of the 
NAAQS that occurs after redesignation. Section 175A of the Act requires 
that a maintenance plan include such contingency measures as EPA deems 
necessary to ensure that the Commonwealth will promptly correct a 
violation of the NAAQS that occurs after redesignation. The maintenance 
plan should identify the events that would ``trigger'' the adoption and 
implementation of a contingency measure(s), the contingency measures 
that would be adopted and implemented, and the schedule indicating the 
time frame by which the state would adopt and implement the measure(s).
    The ability of the SNP area to stay in compliance with the 8-hour 
ozone standard after redesignation depends upon VOC and NOX 
emissions in the area remaining at or below 2004 levels. The 
Commonwealth's maintenance plan projects VOC and NOX 
emissions to decrease and stay below 2004 levels through the year 2015. 
The Commonwealth's maintenance plan lays out two situations where the 
need to adopt and implement a contingency measure to further reduce 
emissions would be triggered. Those situations are as follows:
    (i) An actual increase of the VOC or NOX emissions above 
the 2004 attainment levels is identified or predicted through the 
development of the comprehensive periodic tracking inventories--The 
maintenance plan states that the VADEQ will monitor the observed growth 
rates for VMT, population, and point source VOC and NOX 
emissions on a yearly basis which will serve as an early warning 
indicator of the potential for a violation. The plan also states that 
comprehensive tracking inventories will also be developed every 3 years 
using current EPA-approved methods to estimate emissions, concentrating 
on areas identified in the less rigorous yearly evaluations as being 
potential problems. If the 2004 attainment level emissions for VOC or 
NOX is exceeded or is predicted to be exceeded, the 
following measure will be implemented:
     Preparation of a complete and thorough VOC and 
NOX emission inventory for the current year.
    (ii) In the event that a violation of the 8-hour ozone standard 
occurs at the Madison County/Big Meadows monitor--The maintenance plan 
states that in the event that a violation of the ozone standard occurs 
at the Big Meadows monitor, the Commonwealth of Virginia, in 
consultation with EPA Region III and the Shenandoah National Park, will 
implement one of the following measures:
     The implementation of Stage I vapor recovery on the 
gasoline stations located in the SNP area;
     The Shenandoah National Park would expand their 
implementation of a series of voluntary, episodic control measures 
through an Air Quality Action Day Program (AQADP). The program will be 
based upon ozone forecasts created for the Shenandoah National Park by 
VADEQ meteorological staff. The AQADP would be operated by the 
Shenandoah National Park in partnership with the VADEQ. The VADEQ would 
issue an Air Quality Action Day forecast when 8-hour ozone levels are 
predicted to exceed 0.08 ppm. The VADEQ would notify the Shenandoah 
National Park representatives via email no later than 3 p.m. of the 
afternoon before the exceedance is forecast. This information would 
also be provided to major media and other interested parties. The 
information would be included on the VADEQ Web site, http://www.deq.virginia.gov/airquality. On days when 8-hour ozone levels are 
forecast to exceed 0.08 ppm (code orange or code red days), the 
Shenandoah National Park would implement the following actions or 
similar actions deemed appropriate by the park Superintendent:
    (1) Encourage employees to decrease vehicle use by car pooling and 
reducing the number of non-essential trips; (2) Postpone or decrease 
the use of mowers, weed eaters, chainsaws, electroshockers, and other 
similar gasoline engine equipment until the ozone level drops; (3) 
Postpone painting projects that use oil based paints or solvents; and 
(4) Encourage refueling of vehicles in the early morning or late 
evening hours.
     The Commonwealth would implement of one or more of the 
following Virginia's area source VOC regulations throughout the entire 
SNP area: Emission Standards for Portable Fuel Container Spillage (9 
VAC 5 Chapter 40, Article 42); Emission Standards for Mobile Equipment 
Repair and Refinishing Operations (9 VAC 5 Chapter 40, Article 48); 
Emission Standards for Architectural and Industrial Maintenance 
Coatings (9 VAC 5 Chapter 40, Article 49); Solvent Cleaning (9 VAC 5 
Chapter 40 Article 47); and Emission Standards for Consumer Products (9 
VAC 5 Chapter 40, Article 50).
    The following schedule for adoption, implementation and compliance 
applies to the contingency measures concerning the option of 
implementing either Stage I vapor recovery requirements or one or more 
area source VOC regulations.
     Notification received from EPA that a contingency measure 
must be implemented , or three months after a recorded violation;
     Applicable regulation to be adopted 6 months after this 
date;
     Applicable regulation to be implemented 6 months after 
adoption; \1\
---------------------------------------------------------------------------

    \1\ In the event that implementation of Stage I vapor recovery 
is selected as a contingency measure, Virginia would notify all 
sources located in the SNP area within 6 months after notification 
received from EPA that the contingency measure must be implemented, 
or within three months after a recorded violation. The newly subject 
Stage I vapor recovery sources would be required to comply with 
Stage I vapor recovery requirements no later than 12 months from the 
date VADEQ adopts the regulation.
---------------------------------------------------------------------------

     Compliance with regulation to be achieved within 12 months 
of adoption.
    The following schedule for adoption, implementation and compliance 
applies to the contingency measures concerning the option of 
implementing an AQADP.
     Implementation of meteorological forecasts for the SNP 
area commencing 60 days after a recorded violation.
     Implementation of the AQADP, based on meteorological 
forecasts created by VADEQ, no later than 60 days after VADEQ notifies 
the SNP Superintendent that the meteorological forecasts are available.
    The maintenance plan adequately addresses the five basic components 
of a maintenance plan: attainment inventory, maintenance demonstration, 
monitoring network, verification of continued attainment, and a 
contingency plan. EPA believes that the maintenance plan SIP revision

[[Page 67118]]

submitted by Virginia for the SNP area meets the requirements of 
section 175A of the Act.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified 
in the Maintenance Plan for the Shenandoah National Park Area Adequate 
and Approvable?

A. What Are the Motor Vehicle Emissions Budgets (MVEBs)?

    Under the CAA, States are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs) 
and maintenance plans identify and establish MVEBs for certain criteria 
pollutants and/or their precursors to address pollution from on-road 
mobile sources. In the maintenance plan the MVEBs are termed ``on-road 
mobile source emissions budgets.'' Pursuant to 40 CFR part 93 and 
51.112, MVEBs must be established in an ozone maintenance plan. A MVEB 
is the portion of the total allowable emissions that is allocated to 
highway and transit vehicle use and emissions. A MVEB serves as a 
ceiling on emissions from an area's planned transportation system. The 
MVEB concept is further explained in the preamble to the November 24, 
1993, transportation conformity rule (58 FR 62188). The preamble also 
describes how to establish and revise the MVEBs in control strategy 
SIPs and maintenance plans.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
or reasonable progress towards the national ambient air quality 
standards. If a transportation plan does not ``conform,'' most new 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a state implementation plan.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEB budget 
contained therein ``adequate'' for use in determining transportation 
conformity. After EPA affirmatively finds the submitted MVEB is 
adequate for transportation conformity purposes, that MVEB can be used 
by state and Federal agencies in determining whether proposed 
transportation projects ``conform'' to the state implementation plan as 
required by section 176(c) of the CAA. EPA's substantive criteria for 
determining ``adequacy'' of a MVEB are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic 
steps: public notification of a SIP submission, a public comment 
period, and EPA's adequacy finding. This process for determining the 
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 
1999 guidance, ``Conformity Guidance on Implementation of March 2, 
1999, Conformity Court Decision''. This guidance was finalized in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards and Miscellaneous 
Revisions for Existing Areas; Transportation Conformity Rule 
Amendments--Response to Court Decision and Additional Rule Change'' on 
July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in 
making its adequacy determinations.
    The MVEBs for the SNP area are listed in Table 1 of this document 
for the 2004, 2009, and 2015 years and are the projected emissions for 
the on-road mobile sources plus any portion of the safety margin 
allocated to the MVEBs. These emission budgets, when approved by EPA, 
must be used for transportation conformity determinations.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. The attainment level of 
emissions is the level of emissions during one of the years in which 
the area met the NAAQS. The following example is for the 2015 safety 
margin: The SNP area first attained the 8-hour ozone NAAQS during the 
2002 to 2004 time period. The Commonwealth used 2004 as the year to 
determine attainment levels of emissions for the SNP area. The total 
emissions from area, mobile on-road, and mobile non-road sources in 
2004 equaled 0.579 tpd of VOC and 0.415 tpd of NOX. The 
VADEQ projected emissions out to the year 2015 and projected a total of 
0.493 tpd of VOC and 0.316 tpd of NOX from all sources in 
the SNP area. The safety margin for the SNP area for 2015 would be the 
difference between these amounts, or 0.086 tpd of VOC and 0.099 tpd of 
NOX. The emissions up to the level of the attainment year 
including the safety margins are projected to maintain the area's air 
quality consistent with the 8-hour ozone NAAQS. The safety margin is 
the extra emissions reduction below the attainment levels that can be 
allocated for emissions by various sources as long as the total 
emission levels are maintained at or below the attainment levels. Table 
6 shows the safety margins for the 2009 and 2015 years.

 Table 6.--2009 and 2015 Safety Margins for the Shenandoah National Park
                                  Area
------------------------------------------------------------------------
                                                     VOC          NOX
                 Inventory year                   emissions    emissions
                                                    (tpd)        (tpd)
------------------------------------------------------------------------
2004 Attainment................................       0.0579       0.415
2009 Interim...................................       0.0525       0.371
2009 Safety Margin.............................       0.054        0.044
2004 Attainment................................       0.579        0.415
2015 Final.....................................       0.493        0.316
2015 Safety Margin.............................       0.086        0.099
------------------------------------------------------------------------

    The VADEQ allocated 0.010 tpd of the safety margin to both the 2009 
interim VOC projected on-road mobile source emissions projection and 
the 2009 interim NOX projected on-road mobile source 
emissions projection to arrive at the 2009 MVEBs. For the 2015 MVEBs 
the VADEQ allocated 0.010 tpd NOX and 0.010 tpd VOC from the 
2015 safety margins to arrive at the 2015 MVEBs. Once allocated to the 
mobile source budgets these portions of the safety margins are no 
longer available, and may no longer be allocated to any other source 
category. Table 7 shows the final 2009 and 2015 MVEBS for the SNP area.

  Table 7.--2009 and 2015 Final MVEBs for the Shenandoah National Park
                                  Area
------------------------------------------------------------------------
                                                      VOC         NOX
                 Inventory year                    emissions   emissions
                                                     (tpd)       (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source projected         0.028       0.047
 emissions......................................
2009 Safety Margin Allocated to MVEBs...........       0.010       0.010
2009 MVEBs......................................       0.038       0.057
2015 projected on-road mobile source projected         0.019       0.025
 emissions......................................
2015 Safety Margin Allocated to MVEBs...........       0.010       0.010
2015 MVEBs......................................       0.029       0.035
------------------------------------------------------------------------


[[Page 67119]]

C. Why Are the MVEBs Approvable?

    The 2004, 2009 and 2015 MVEBs for the SNP area are approvable 
because the MVEBs for NOX and VOC, including the allocated 
safety margins, continue to maintain the total emissions at or below 
the attainment year inventory levels as required by the transportation 
conformity regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the 
Shenandoah National Park Area Maintenance Plan?

    The MVEBs for the SNP area maintenance plan are being posted to 
EPA's conformity Web site concurrent with this proposal. The public 
comment period will end at the same time as the public comment period 
for this proposed rule. In this case, EPA is concurrently processing 
the action on the maintenance plan and the adequacy process for the 
MVEBs contained therein. In this proposed rule, EPA is proposing to 
find the MVEBs adequate and also proposing to approve the MVEBs as part 
of the maintenance plan. The MVEBs cannot be used for transportation 
conformity until the maintenance plan update and associated MVEBs are 
approved in a final Federal Register notice, or EPA otherwise finds the 
budgets adequate in a separate action following the comment period.
    If EPA receives adverse written comments with respect to the 
proposed approval of the SNP MVEBs, or any other aspect of our proposed 
approval of this updated maintenance plan, we will respond to the 
comments on the MVEBs in our final action or proceed with the adequacy 
process as a separate action. Our action on the SNP area MVEBs will 
also be announced on EPA's conformity Web site: http://www.epa.gov/oms/traq, (once there, click on the ``Conformity'' button, then look for 
``Adequacy Review of SIP Submissions for Conformity'').

VIII. General Information Pertaining to Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed.
    Virginia's legislation also provides, subject to certain 
conditions, for a penalty waiver for violations of environmental laws 
when a regulated entity discovers such violations pursuant to a 
voluntary compliance evaluation and voluntarily discloses such 
violations to the Commonwealth and takes prompt and appropriate 
measures to remedy the violations. Virginia's Voluntary Environmental 
Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege 
that protects from disclosure documents and information about the 
content of those documents that are the product of a voluntary 
environmental assessment. The Privilege Law does not extend to 
documents or information (1) that are generated or developed before the 
commencement of a voluntary environmental assessment; (2) that are 
prepared independently of the assessment process; (3) that demonstrate 
a clear, imminent and substantial danger to the public health or 
environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * *'' The opinion 
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or 
other information needed for civil or criminal enforcement under one of 
these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

IX. Proposed Actions

    EPA is proposing to determine that the SNP area has attained the 8-
hour ozone NAAQS. The EPA is also proposing to approve the Commonwealth 
of Virginia's September 21, 2005 request for the SNP area to be 
designated to attainment of the 8-hour NAAQS for ozone because the 
requirements for approval have been satisfied. EPA has evaluated 
Virginia's redesignation request and determined that it meets the 
redesignation criteria set forth in section 107(d)(3)(E) of the CAA. 
EPA believes that the redesignation request and monitoring data 
demonstrate that the area has attained the 8-hour ozone standard. The 
final approval of this redesignation request would change the 
designation of the SNP area from nonattainment to attainment for the 8-
hour ozone standard. EPA is also proposing to approve the associated 
maintenance plan for this area, submitted on September 23, 2005, as a 
revision to the Virginia SIP. EPA is proposing to approve the 
maintenance plan for the area because it meets the requirements of 
section 175A as described more fully above. EPA is also proposing to 
approve the MVEBs submitted by Virginia for the area in conjunction 
with its redesignation request. EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

X. 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

[[Page 67120]]

also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355 (May 22, 2001)). This action merely proposes to 
approve state law as meeting Federal requirements and imposes no 
additional requirements beyond those imposed by state law. 
Redesignation of an area to attainment under section 107(d)(3)(e) of 
the Clean Air Act does not impose any new requirements on small 
entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on sources. Redesignation of an area to attainment under section 
107(d)(3)(E) of the Clean Air Act does not impose any new requirements 
on small entities. Redesignation is an action that affects the status 
of a geographical area and does not impose any new regulatory 
requirements on sources. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4). This proposed rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (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 affect the status of a geographical area, does not 
impose any new requirements on sources, or allow the state to avoid 
adopting or implementing other requirements, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This proposed rule also is not 
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Redesignation is an 
action that affects the status of a geographical area and does not 
impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
proposed rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This rule proposing to approve the redesignation of the SNP area to 
attainment for the 8-hour ozone NAAQS, the associated maintenance plan, 
and the MVEBs identified in the maintenance plan, does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: October 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-22031 Filed 11-3-05; 8:45 am]
BILLING CODE 6560-50-P