[Federal Register Volume 71, Number 91 (Thursday, May 11, 2006)]
[Proposed Rules]
[Pages 27440-27447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7216]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2005-0480; FRL-8168-6]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Redesignation of the City of Weirton PM-10 Nonattainment 
Area to Attainment and Approval of the Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On May 24, 2004, the State of West Virginia submitted a 
request that EPA redesignate the Weirton nonattainment area (Weirton 
Area) to attainment for the national ambient air quality standards 
(NAAQS) for particulate matter with an aerodynamic diameter less than 
or equal to a nominal 10 micrometers (PM-10), and concurrently 
requested approval of a limited maintenance plan (LMP) as a revision to 
the West Virginia State Implementation Plan (SIP). In this action, the 
EPA proposes to approve the LMP for the Weirton Area in West Virginia 
and grant the State's request to redesignate the area from 
nonattainment to attainment. EPA's proposed approval is based on its 
determination that the area has met the criteria for redesignation for 
attainment specified in the Clean Air Act (CAA). EPA is also proposing 
to determine that, because the Weirton Area has continued to attain the 
PM-10 NAAQS, certain attainment demonstration requirements, along with 
other related requirements of the CAA, are not applicable to the 
Weirton Area.

DATES: Written comments must be received on or before June 12, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-0480 by one of the following methods:
    A. http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2005-0480, Makeba Morris, Chief, Air Quality 
Planning and Analysis Branch, Mailcode 3AP21, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. 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 Docket ID No. EPA-R03-OAR-
2005-0480. 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.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is 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 http://www.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 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute.

[[Page 27441]]

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 http://www.regulations.gov 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 West Virginia Department 
of Environmental Protection, Division of Air Quality, 601 57th Street, 
SE., Charleston, WV 25304.

FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 814-2068, or by e-
mail at [email protected].

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

Table of Contents

I. Background
    A. What NAAQS Are Considered in Today's Rulemaking?
    B. What is a State Implementation Plan (SIP)?
    C. What are the Requirements for Redesignating a Nonattainment 
Area to Attainment?
    D. What is the Background of the SIP for the Weirton Area?
    E. What are the Air Quality Characteristics of the Weirton Area?
II. Review of the West Virginia State Submittal Addressing the 
Requirements for Redesignation
    A. Does the Submittal Meet the Criteria for Redesignation?
    1. Has the State Demonstrated that the Weirton Area has attained 
the applicable NAAQS?
    2. Does the Weirton Area have a fully approved SIP under Section 
110(k) of the Act that meets all requirements applicable under 
Section 110 and Part D of the Act for Purposes of Redesignation?
    3. Clean Data Policy
    4. Has the State Demonstrated that the Air Quality Improvement 
is due to permanent and enforceable reductions?
III. Review of the Limited Maintenance Plan
    A. What is a Maintenance Plan?
    B. What is the LMP Option for PM-10 Nonattainment Areas seeking 
Redesignation to Attainment
    C. Does the Weirton Area Qualify for the LMP Option?
    D. Does the LMP submitted meet all the requirements for a Fully 
Approved Maintenance Plan?
    E. Has the State met conformity requirements?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What NAAQS Are Considered in Today's Rulemaking?

    Particulate matter with an aerodynamic diameter less than or equal 
to a nominal ten microns (PM-10) is the pollutant subject to this 
action. The NAAQS are safety thresholds for certain ambient air 
pollutants set to protect public health and welfare. PM-10 is among the 
ambient air pollutants for which we have established such a health-
based standard. PM-10 causes adverse health effects by penetrating deep 
in the lung, aggravating the cardiopulmonary system. Children, the 
elderly, and people with asthma and heart conditions are the most 
vulnerable. On July 1, 1987 (52 FR 24634) we revised the NAAQS for 
particulate matter with an indicator that includes those particles with 
an aerodynamic diameter less than or equal to a nominal 10 micrometers. 
See 40 CFR 50.6. The annual primary PM-10 standard is 50 [mu]/m\3\ as 
an annual arithmetic mean. The 24-hour primary PM-10 standard is 150 
[mu]g/m3 with no more than one expected exceedance per year. 
The secondary PM-10 standards, promulgated to protect against adverse 
welfare effects, are identical to the primary standards.

B. What Is a State Implementation Plan (SIP)?

    The Act requires states to attain and maintain ambient air quality 
equal to or better than the NAAQS. Section 107(d)(1)(A)(I) of the Act 
defines nonattainment area as any area that does not meet (or that 
contributes to ambient air quality in a nearby area that does not meet) 
the national primary or secondary ambient air quality standard for that 
pollutant.
    A state's strategy for attaining and maintaining the NAAQS are 
outlined in the state implementation plan (SIP). The SIP is a planning 
document that, when implemented, is designed to ensure the achievement 
of the NAAQS by the applicable attainment date. The Act requires that 
states make SIP revisions periodically, as necessary, to provide 
continued compliance with the standards.
    SIPs include, among other things, the following: (1) A current, 
accurate and comprehensive inventory of emission sources; (2) statutes 
and regulations adopted by the State Legislature and executive 
agencies; (3) air quality analyses that include demonstrations that 
adequate controls are in place to meet the NAAQS; and (4) contingency 
measures to be undertaken if an area fails to attain the standard or 
make reasonable progress toward attainment by the required date.
    A state must make the SIP and subsequent revisions available for 
public review and comment through a public hearing, it must be adopted 
by the State, and submitted to EPA by the Governor or the Governor's 
designee. EPA takes action to approve the SIP, thus rendering the rules 
and regulations federally enforceable. The approved SIP is the state's 
commitment to take actions that will reduce or eliminate air quality 
problems. Any subsequent revisions to the SIP must go through the 
formal SIP revision process specified in the Act.

C. What are the Requirements for Redesignating a Nonattainment Area to 
Attainment?

    Nonattainment areas can be redesignated to attainment after the 
area has measured air quality data showing it has attained the NAAQS 
and when certain additional requirements are met. Section 107(d)(3)(E) 
of the Act provides the criteria for redesignation. These criteria are 
further clarified in the ``General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990'' (57 FR 13498, April 
16, 1992, as supplemented 57 FR 18070, April 28, 1992) (the General 
Preamble), and in a guidance memorandum from John Calcagni, Director, 
Air Quality Management Division, EPA Office of Air Quality Planning and 
Standards dated September 4, 1992, ``Procedures for Processing Requests 
to Redesignate Areas to Attainment, (Calcagni memo).'' The criteria for 
redesignation are:
    (1) A determination that the area has attained the applicable 
NAAQS;
    (2) Full approval of the applicable SIP for the area under section 
110(k) of the Act;
    (3) The state containing the area has met all requirements 
applicable to the area under section 110 and part D of the Act;
    (4) A determination that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable implementation plan, applicable 
Federal air pollution control regulations, and other permanent and 
enforceable reductions; and
    (5) Full approval of a maintenance plan for the area as meeting the 
requirements of section 175A of the Act.

D. What is the Background of the SIP for the Weirton Area?

    The Weirton Area, consisting of Hancock County and part of Brooke 
County, West Virginia, was designated

[[Page 27442]]

by EPA as a moderate PM-10 nonattainment area on December 21, 1993 (58 
FR 67334).
    On May 16, 2001 (66 FR 27034), EPA promulgated a final rule 
entitled, ``Determination of Attainment of the NAAQS for PM-10 in the 
Weirton, West Virginia Nonattainment Area'' finding that the Weirton 
PM-10 nonattainment had attained the NAAQS for PM-10 by its applicable 
December 31, 2000 attainment date.
    In order to be redesignated from nonattainment to attainment, West 
Virginia requested that EPA apply its clean data policy to the Weirton 
Area in a letter dated October 14, 2003. West Virginia submitted a 
request to redesignate the Weirton Area to attainment for PM-10 and a 
SIP submittal for the related maintenance plan on May 24, 2004.
    EPA published a direct final rule (DFR) and notice of proposed 
rulemaking (NPR) in which we determined that certain attainment 
demonstration requirements, along with other related requirements of 
the Act, are not applicable to the Weirton Area. In the same October 
27, 2004 DFR and NPR, EPA also approved the request from the State of 
West Virginia to redesignate the Weirton Area from nonattainment to 
attainment of the NAAQS for PM-10, and to approve the 10-year 
maintenance plan for the area submitted by the WVDEP as a revision to 
the West Virginia SIP. (October 27, 2004, 69 FR 62591 and 69 FR 62637).
    EPA published a correcting amendment to the DFR and NPR on November 
9, 2004 (69 FR 64860) to include additional explanation of why motor 
vehicle emissions do not contribute significantly to any nonattainment 
with the PM-10 NAAQS in the Weirton Area.
    EPA received adverse comments on the October 27, 2004 DFR/NPR from 
one commenter. Therefore, EPA withdrew the DFR on December 20, 2004 (69 
FR 75847). The withdrawal of the DFR converted EPA's action to a 
proposal based on the October 27, 2004 NPR. In a separate rulemaking in 
today's Federal Register, EPA is withdrawing the October, 27 2004 NPR 
and the November 9, 2004 amendment thereto, and issuing this current 
proposal. Because we are withdrawing the earlier action, we will not 
respond to the comments received on the withdrawn DFR and NPR. Any 
person wishing to comment on this current proposal must submit comments 
pursuant to the instructions given in this notice of proposed 
rulemaking.

E. What are the Air Quality Characteristics of the Weirton Area?

    The primary years used by EPA for the purposes of establishing PM-
10 designations and classifications were 1987 to 1989. For this base 
year period, the Weirton Area 24-hour average PM-10 design value was 
198 [mu]g/m3. This value exceeded the NAAQS of 150 [mu]g/
m3. The Weirton Area has never exceeded the annual average 
standard of 50 [mu]g/m3. As provided in the WV SIP 
submittal, for the 2000 to 2002 period, the comparable 24-hour average 
design value is 112 [mu]g/m3 and the PM-10 annual average 
design value is 32 [mu]g/m. Both values meet the NAAQS. Based on the 
certified ambient air quality data through the close of calendar year 
2005, EPA proposes to determine that the area continues to attain the 
PM-10 NAAQS. Furthermore, there have been no recorded exceedances of 
the 24-hour PM-10 standard or the annual PM-10 standard from 1997 
through the end of 2005 in the Weirton Area, and the highest annual 
value in the Weirton area for the years 2003-2005 is 29 [mu]g/
m3. See also the discussion in Section II.A.1. and the 
technical support document (TSD) accompanying this rulemaking.

II. Review of the West Virginia Submittal Addressing the Requirements 
for Redesignation

A. Does the Submittal Meet the Criteria for Redesignation?

1. Has the State demonstrated that the Weirton Area has attained the 
applicable NAAQS?
    States must demonstrate that an area has attained the PM-10 NAAQS 
through analysis of ambient air quality data from an ambient air 
monitoring network representing peak PM-10 concentrations. The data 
should be stored in the EPA Air Quality System (AQS) database. The 24-
hour PM-10 NAAQS is 150 [mu]g/m3. An area has attained the 
24-hour standard when the average number of expected exceedences per 
year is less than or equal to one, when averaged over a three-year 
period (40 CFR 50.6). To make this determination, three consecutive 
years of complete ambient air quality data must be collected in 
accordance with Federal requirements (40 CFR part 58, including 
appendices). The annual PM-10 NAAQS is 50 [mu]g/m3. To 
determine attainment, the standard is compared to the expected annual 
mean, which is the average of the weighted annual mean for three 
consecutive years. More detailed monitoring data is available in the 
TSD.
    EPA previously determined in ``A Determination of Attainment of the 
NAAQS for PM-10 in the Weirton, West Virginia Nonattainment Area'' on 
May 16, 2001 (66 FR 27034) that the area had attained the PM-10 NAAQS. 
As previously stated, the most recent air quality monitoring continues 
to support this determination. Thus, EPA proposes to determine that the 
Weirton Area has satisfied the criterion of section 107(d)(3)(E)(I) 
that the area has attained the PM-10 NAAQS.
2. Does the Weirton Area have a Fully Approved SIP under section 110(k) 
of the Act that meets all requirements applicable under section 110 and 
Part D for Purposes of Redesignation?
    In order to qualify for redesignation, the SIP must satisfy all 
requirements that apply to the area for purposes of redesignation. EPA 
interprets the Act to require state adoption and EPA approval of the 
requirements applicable for purposes of redesignation under section 110 
and part D before EPA may approve a redesignation request. Thus in 
order to qualify for redesignation, the SIP for the area must be fully 
approved under section 110(k) with respect to all requirements that 
apply to the area for purposes of redesignation.
    As we explain more fully in later sections of this action, EPA has 
determined that West Virginia has met all SIP requirements applicable 
for purposes of redesignation under section 110 of the CAA and has also 
determined that the West Virginia SIP meets requirements applicable for 
purposes of redesignation under Part D, Title I of the CAA. EPA has 
analyzed the SIP codified at 40 CFR part 52, subpart XX, and determined 
that it is consistent with the requirements of section 110 applicable 
for purposes of redesignation.
    The air quality planning requirements for moderate PM-10 
nonattainment areas under part D of Title I of the CAA are set out in 
subparts 1 and 4. Subpart 1 of part D, found in sections 172-176 of the 
CAA, sets forth the basic requirements applicable to all nonattainment 
areas. Subpart 4 of part D, found in section 189 of the CAA, 
establishes additional specific requirements for PM-10 areas depending 
upon the area's nonattainment classification. For purposes of 
evaluating the redesignation request, EPA is proposing to determine 
that these applicable requirements have been met for the reasons 
discussed in later sections of this notice.
    The Part D provisions that the Weirton Area must evaluate prior to 
redesignation as attainment include an emissions inventory, conformity, 
a

[[Page 27443]]

permit program for new and modified stationary sources (called new 
source review or NSR), Reasonably Available Control Measure (RACM) 
requirements contained in sections 172 and 189 of the Act), a 
demonstration of reasonable further progress (RFP) toward attainment, 
an attainment demonstration, and contingency measures. We address how 
the Weirton Area has met the RACM, RFP, attainment demonstration and 
contingency measure requirements in the next section of this notice 
(Clean Data Policy).
    With respect to the emissions inventory requirement, the Calcagni 
memo notes that the requirements for an emission inventory will be 
satisfied by the inventory requirements of the maintenance plan. An 
attainment year emissions inventory for the Weirton Area has been 
included in the maintenance plan, and thus this requirement has been 
satisfied.
    With respect to the conformity requirement, section 176(c) of the 
CAA requires states to establish criteria and procedures to ensure the 
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 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 a redesignation 
request under section 107(d) because state conformity rules are still 
required after redesignation and federal conformity rules apply where 
state rules have not been approved. See Wall v. EPA, 265F 3d 426 (6th 
Cir. 2001), upholding this interpretation. See, also, 60 FR 62748 
(December 7, 1995).
    With respect to the NSR program requirement, EPA has determined 
that areas being redesignated need not have an approved NSR program 
prior to redesignation, provided that the area demonstrates maintenance 
of the standard without Part D NSR in effect. The rationale for this 
view is described in a memorandum for Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled 
``Part D New Source Review Requirements of Areas Requesting 
Redesignation to Attainment.'' The State has demonstrated that the area 
will be able to maintain the standard without Part D NSR in effect, and 
therefore the State need not have a fully approved Part D NSR program 
prior to approval of the redesignation request. The State's Prevention 
of Significant Deterioration (PSD) program will become effective in the 
area upon redesignation to attainment. Detroit, MI (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-20470, 
May 7, 1996); Louisville, KY (66 FR 53665, October 23 2001); Grand 
Rapids, MI (61 FR 31834-31837, June 21, 1996).
3. Clean Data Policy
    In some designated nonattainment areas, monitored data demonstrates 
that the NAAQS has already been achieved. Based on its interpretation 
of the Act, EPA has determined that certain requirements of part D, 
subpart 1 and 2 of the Act do not apply and therefore do not require 
certain submissions for an area that has attained the NAAQS. These 
include reasonable further progress (RFP) requirements, attainment 
demonstrations and contingency measures, because these provisions have 
the purpose of helping achieve attainment of the NAAQS.
    The so-called Clean Data Policy is the subject of two EPA memoranda 
setting forth our interpretation of the provisions of the Act as they 
apply to areas that have attained the relevant NAAQS. EPA also 
finalized the statutory interpretation set forth in the policy in a 
final rule, 40 CFR 51.918, as part of its Final Rule to Implement the 
8-hour Ozone National Ambient Air Quality Standard--Phase 2 (Phase 2 
Final Rule). See discussion in the preamble to the rule at 70 FR 71645-
71646 (November 29, 2005). EPA believes that the legal bases set forth 
in detail in our Phase 2 Final rule, our May 10, 1995 memorandum from 
John S. Seitz, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment Areas 
Meeting the Ozone National Ambient Air Quality Standard'' (Seitz memo), 
and our December 14, 2004 memorandum from Stephen D. Page entitled 
``Clean Data Policy for the Fine Particle National Ambient Air Quality 
Standards'' (Page memo), are equally pertinent to the interpretation of 
provisions of subparts 1 and 4 applicable to PM-10. EPA's 
interpretation of how the provisions of the Act apply to areas with 
``clean data'' is not logically limited to ozone and PM-2.5, because 
the rationale is not dependent upon the type of pollutant. Our 
interpretation that an area that is attaining the standard is relieved 
of obligations to demonstrate reasonable further progress (RFP) and to 
provide an attainment demonstration and contingency measures pursuant 
to part D of the CAA, pertains whether the standard is PM-10, ozone or 
PM-2.5.
    The reasons for relieving an area that has attained the relevant 
standard of certain part D, subpart 1 and 2 (sections 171 and 172) 
obligations, applies equally as well to part D, subpart 4, which 
contains specific attainment demonstration and RFP provisions for PM-10 
nonattainment areas. As we have explained in the Phase 2 Final Rule and 
our ozone and PM-2.5 clean data memoranda, EPA believes it is 
reasonable to interpret provisions regarding RFP and attainment 
demonstrations, along with related requirements, so as not to require 
SIP submissions if an area subject to those requirements is already 
attaining the NAAQS (i.e., attainment of the NAAQS is demonstrated with 
three consecutive years of complete, quality-assured air quality 
monitoring data). Three U.S. Circuit Courts of Appeals have upheld EPA 
rulemakings applying its interpretation of subparts 1 and 2 with 
respect to ozone. Sierra Club v. EPA, 99F.3d 1551 (10th Cir. 1996); 
Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's Earth 
Foundation v. EPA, N. 04-73032 (9th Cir. June 28, 2005) (memorandum 
opinion). It has been EPA's longstanding interpretation that the 
general provisions of part D, subpart 1 of the Act (sections 171 and 
172) do not require the submission of SIP revisions concerning RFP for 
areas already attaining the ozone NAAQS. In the General Preamble, we 
stated:

    [R]equirements for RFP will not apply in evaluating a request 
for redesignation to attainment, since, at a minimum, the air 
quality data for the area must show that the area has already 
attained. A showing that the State will make RFP toward attainment 
will, therefore, have no meaning at that point. 57 FR at 13564.

    EPA believes the same reasoning applies to the PM-10 provisions of 
part D, subpart 4.
    With respect to RFP, section 171(1) states that, for purposes of 
part D of title I, RFP ``means such annual incremental reductions in 
emissions of the relevant air pollutant as are required by this part or 
may reasonably be required by the Administrator for the purpose of 
ensuring attainment of the applicable NAAQS by the applicable date.'' 
Thus, whether dealing with the general RFP requirement of section 
172(c)(2), the ozone-specific RFP requirements of

[[Page 27444]]

sections 182(b) and (c), or the specific RFP requirements for PM-10 
areas of part D, subpart 4, section 189(c)(1), the stated purpose of 
RFP is to ensure attainment by the applicable attainment date. Section 
189(c)(1) states that:

    Plan revisions demonstrating attainment submitted to the 
Administrator for approval under this subpart shall contain 
quantitative milestones which are to be achieved every 3 years until 
the area is redesignated attainment and which demonstrate reasonable 
further progress, as defined in section 7501(l) of this title, 
toward attainment by the applicable date.

    Although this section states that revisions shall contain 
milestones which are to be achieved until the area is redesignated to 
attainment, such milestones are designed to show reasonable further 
progress ``toward attainment by the applicable date'', as defined by 
section 171. Thus it is clear that once the area has attained the 
standard, no further milestones are necessary or meaningful. This 
interpretation is supported by language in section 189(c)(3), which 
mandates that a state that fails to achieve a milestone must submit a 
plan that assures that the state achieve the next milestone or attain 
the NAAQS if there is no next milestone. Section 189(c)(3) assumes that 
the requirement to submit and achieve milestones does not continue 
after attainment of the NAAQS.
    If an area has in fact attained the standard, the stated purpose of 
the RFP requirement will have already been fulfilled.\1\ EPA took this 
position with respect to the general RFP requirement of section 
172(c)(2) in the April 16, 1992 General Preamble and also in the May 
10, 1995 memorandum with respect to the requirements of sections 
182(a)(b) and (c). We are extending that interpretation to the specific 
provisions of part D, subpart 4. In the General Preamble, we stated, in 
the context of a discussion of the requirements applicable to the 
evaluation of requests to redesignate nonattainment areas to 
attainment, that the ``requirements for RFP will not apply in 
evaluating a request for redesignation to attainment since, at a 
minimum, the air quality data for the area must show that the area has 
already attained. Showing that the State will make RFP towards 
attainment will, therefore, have no meaning at that point.'' (57 FR at 
13564). See also Calcagni memo, p.6.
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    \1\ Thus we believe that it is a distinction without a 
difference that section 189(c)(1) speaks of the RFP requirement as 
one to be achieved until an area is ``redesignated as attainment'', 
as opposed to section 172(c)(2), which is silent on the period to 
which the requirement pertains, or the ozone nonattainment area RFP 
requirements in sections 182(b)(1) or 182(c)(2), which refer to the 
RFP requirements as applying until the ``attainment date'', since, 
section 189(c)(1) defines RFP by reference to section 171(l) of the 
Act. Reference to 171(l) clarifies that, as with the general RFP 
requirements in section 172(c)(2) and the ozone-specific 
requirements of section 182(b)(1) and 182(c)(2), the PM-specific 
requirements may only be required ``for the purpose of ensuring 
attainment of the applicable national ambient air quality standard 
by the applicable date.'' 42 U.S.C. section 7501(1). As discussed in 
the text of this rulemaking, EPA interprets the RFP requirements, in 
light of the definition of RFP in section 171(l), and incorporated 
in section 189(c)(1), to be a requirement that no longer applies 
once the standard has been attained.
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    With respect to the attainment demonstration requirements of 
section 189(a)(1)(B) an analogous rationale leads to the same result. 
Section 189(a)(1)(B) requires that the plan provide for ``a 
demonstration (including air quality modeling) that the [SIP] will 
provide for attainment by the applicable attainment date.* * *'' As 
with the RFP requirements, if an area is already monitoring attainment 
of the standard, EPA believes there is no need for an area to make a 
further submission containing additional measures to achieve 
attainment. This is also consistent with the interpretation of the 
section 172(c) requirements provided by EPA in the General Preamble, 
the Page memo and of the section 182(b) and (c) requirements set forth 
in the Seitz memo. As EPA stated in the General Preamble, no other 
measures to provide for attainment would be needed by areas seeking 
redesignation to attainment since ``attainment will have been 
reached.'' (57 FR at 13564).
    Other SIP submission requirements are linked with these attainment 
demonstration and RFP requirements, and similar reasoning applies to 
them. These requirements include the contingency measure requirements 
of sections 172(c)(9) and 182(c)(9). We have interpreted the 
contingency measure requirements of sections 172(c)(9) and 182(c)(9) as 
no longer applying when an area has attained the standard because those 
``contingency measures are directed at ensuring RFP and attainment by 
the applicable date.'' (57 FR at 13564); Seitz memo, pp. 5-6.
    Both sections 172(c) and 189(a)(1)(c) require ``provisions to 
assure that reasonable available control measures'' (i.e, RACM) are 
implemented in a nonattainment area. However, the Weirton Area was able 
to attain the PM-10 NAAQS without any additional measures being 
implemented. The General Preamble, 57 FR 13560 (April 16, 1992) states 
that EPA interprets section 172(c)(1) so that RACM requirements are a 
``component'' of an area's attainment demonstration. Thus, for the same 
reason the attainment demonstration no longer applies by its own terms, 
the requirement for RACM no longer applies. EPA has consistently 
interpreted this provision to require only implementation of potential 
RACM measures that could contribute to reasonable further progress or 
to attainment. General Preamble, 57 FR at 13498. Thus, where an area is 
already attaining the standard, no additional RACM measures are 
required.\2\ EPA is interpreting section 189(a)(1)(c) consistent with 
its interpretation of section 172(c)(1). Therefore, there is no 
requirement for the West Virginia SIP to contain RACM for the Weirton 
Area in order for EPA to redesignate that area as attainment for the 
PM-10 NAAQS.
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    \2\ The EPA's interpretation that the statute only requires 
implementaion of RACM measures that would advance attainment was 
upheld by the United States Court of Appeals for the Fifth Circuit 
(Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002)), and by 
the United States Court of Appeals for the D.C. Circuit (Sierra Club 
v. EPA, 294 F3d 155, 162-163 (D.C. Cir. 2002)).
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    Here, as in both our Phase 2 final rule and ozone and PM-2.5 clean 
data memoranda, we emphasize that the suspension of a requirement to 
submit SIP revisions concerning these RFP, attainment demonstration, 
RACM, and other related requirements exists only for as long as a 
nonattainment area continues to monitor attainment of the standard. If 
such an area experiences a violation of the NAAQS, the basis for the 
requirements being suspended would no longer exist. Therefore, the area 
would again be subject to a requirement to submit the pertinent SIP 
revision or revisions and would need to address those requirements. 
Thus, a determination that an area need not submit one of the SIP 
submittals amounts to no more than a suspension of the requirement for 
so long as the area continues to attain the standard. However, once EPA 
ultimately redesignates the area to attainment, the area will be 
entirely relieved of these requirements to the extent the maintenance 
plan for the area does not rely on them.
    Therefore, we believe that, for the reasons set forth here and 
established in our prior ``clean data'' memoranda and rulemakings, a 
PM-10 nonattainment area that has ``clean data,'' should be relieved of 
the part D, subpart 4 obligations to provide an attainment 
demonstration pursuant to section 189(a)(1)(B) the RACM provisions of 
189(a)(1)(c), and the RFP provisions established by section 189(c)(1) 
of the Act, as well as the aforementioned attainment demonstration, 
RACM, RFP and contingency measure provisions of

[[Page 27445]]

part D, subpart 1 contained in section 172 of the Act.\3\
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    \3\ In prior rulemakings involving the Clean Data Policy and PM-
10, EPA has applied criteria in addition to that of attainment of 
the standard. See e.g., 67 FR 43020 (June 26, 2002). EPA does not 
believe that those additional criteria are required by statute or 
are necessary for application of the policy for PM-10 areas, and 
does not employ them in applying the policy to ozone and 
PM2.5 areas. EPA intends to make its application of the 
policy consistent for ozone, PM-10, and PM2.5, and does 
not intend to require an area to meet additional criteria for PM-10.
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    Should EPA at some future time determine that an area that had 
clean data, but which has not yet been redesignated as attainment for a 
NAAQS has violated the relevant standard, the area would again be 
required to submit the pertinent requirements under the SIP for the 
area. Attainment determinations under the policy do not shield an area 
from other required actions, such as provisions to address pollution 
transport.
    As set forth, above, EPA proposes to find that because the Weirton 
Area has continued to attain the NAAQS the requirement of an attainment 
demonstration, reasonable further progress, reasonably available 
control measures and contingency measures no longer apply.
    Thus, EPA has determined that all provisions of CAA section 110 and 
part D applicable to the Weirton Area for purposes of redesignation 
have been approved into the West Virginia SIP.
4. Has the State demonstrated that the air quality improvement is due 
to permanent and enforceable reductions?
    The State must be able to reasonably attribute the improvement in 
air quality to permanent and enforceable emission reductions. In making 
this showing, the State must demonstrate that air quality improvements 
are the result of actual enforceable emission reductions. The control 
measures for the area, which were responsible for bringing the area 
into attainment, are contained in a Consent Order (CO) between the 
State of West Virginia and the Weirton Steel Corporation. The control 
measures and emission limits established in the CO were made permanent 
and enforceable when EPA approved them into the West Virginia SIP on 
May 5, 2004 (69 FR 24986). These control measures resulted in a 
reduction of 1345.5 tons per year of allowable PM-10 emissions and a 
reduction of 886 tons per year of actual PM-10 emissions. EPA approved 
these measures as RACT in the West Virginia SIP on May 4, 2004 (69 FR 
24986).

III. Review of the Limited Maintenance Plan

A. What is a Maintenance Plan?

    As discussed in section II of this action, to be redesignated to 
attainment, the Weirton Area is required to have a fully approved 
maintenance plan under section 175A of the CAA. A maintenance plan 
should identify the level of air emissions from cars, industry and 
other sources which is sufficient to attain the NAAQS. The State must 
commit to re-evaluate the maintenance plan. The plan must also show 
that the area will maintain clean air for at least 10 years after 
redesignation. Additionally, the plan must include a list of 
contingency measures to be implemented should the NAAQS be violated. 
The requirements for the contingency measures is found in paragraph (d) 
of CAA section 175A.

B. What is the LMP Option for PM-10 Nonattainment Areas Seeking 
Redesignation to Attainment

    On August 9, 2001, EPA issued guidance on streamlined maintenance 
plan provisions for certain moderate PM-10 nonattainment areas seeking 
redesignation to attainment (Memorandum from Lydia Wegman, Director, 
Air Quality Standards and Strategies Division, entitled ``Limited 
Maintenance Plan Option for Moderate PM-10 Nonattainment Areas'', 
(Wegman memo). The Wegman memo contains a statistical demonstration 
that areas meeting certain air quality criteria will, with a high 
degree of probability, maintain compliance with the standard 10 years 
into the future. Thus, EPA has already provided the maintenance 
demonstration for areas that meet the air quality criteria outlined in 
the Wegman memo. The Wegman memo streamlines the full maintenance plan 
requirements and establishes the LMP option. The LMP option does not 
require air quality modeling estimates that clean air can be 
maintained, a projection of emissions into the future, or some of the 
standard analyses to determine conformity with the air quality 
standards. The Wegman memo identifies core provisions that must be 
included in the LMP. These provisions include an attainment year 
emission inventory, assurance of continued operation of an EPA-approved 
air quality monitoring network, and contingency provisions.

C. Does the Weirton Area qualify for the LMP option?

    To qualify for the LMP option, the area must have attained the PM-
10 NAAQS, and the average annual PM-10 design value for the area, based 
upon the most recent 5 years of air quality data at all monitors in the 
area, should be at or below 40 [mu]g/m3, and the 24 hour design value 
should be at or below 98 [mu]g/m3. If an area cannot meet this test, it 
may still be able to qualify for the LMP Option if the average design 
value (ADV) for the site is less than the site-specific critical design 
values (CDV) (as those terms are used in the Wegman memo). In addition, 
the area should expect only limited growth in on-road motor vehicle PM-
10 emissions (including fugitive dust) and should have passed a motor 
vehicle regional emissions analysis test.
    To show that future emissions will not exceed the level of the 
attainment inventory, the WVDEP determined the CDV. The CDV is a 
statistical technique based upon the average design value and its 
observed variability to estimate the probability of exceeding the NAAQS 
in the future.
    When applied specifically to the Weirton Area 24-hour data for the 
years 2000 through 2004, the CDV is 137 [mu]g/m3. The actual 
5-year average design value for the Weirton Area is 96.8 [mu]g/
m3 which is below the level of 98 [mu]g/m3 
established for the LMP option. Furthermore, the maximum site average 
design value of 105.2 [mu]g/m3 is less than the area-
specific CDV of 137 [mu]g/m3.
    There is no expected population growth in the Weirton Area. The 
impact of vehicle emissions in the Weirton Area has been determined to 
be an insignificant contributor to PM-10 nonattainment in the area. 
Details can be found in the TSD.
    Based on our foregoing analysis, we have determined that the 
Weirton Area qualifies for use of the LMP option.

D. Does the LMP Submitted Meet all the Requirements for a Fully 
Approved Maintenance Plan?

    The Weirton Area meets the criteria for using a LMP for 
redesignation. The LMP does not require a modeling demonstration to 
show maintenance of the NAAQS. A projected emissions inventory is also 
not required. The LMP does require the following:
    1. An attainment year emissions inventory
    2. Assurance of continued operation of an EPA-approved air quality 
monitoring network
    3. Contingency provisions.
    The LMP for the Weirton Area, dated May 24, 2004 includes the 
necessary provisions for approval. Specifically, it contains the 
following:
1. Attainment Year Emission Inventory
    In the May 24, 2004 submittal, an inventory of allowable emissions 
of

[[Page 27446]]

sources in the nonattainment area was included in the maintenance plan. 
This inventory will be approved into the SIP as part of the LMP. The 
inventory is presented in the TSD.
2. Continued Operation of Air Quality Monitoring Network
    The LMP includes a commitment to continue to monitor PM-10 in the 
Weirton Area throughout the 10-year term of the maintenance plan to 
verify continued attainment of the NAAQS. The monitoring procedures 
will be determined in accordance with 40 CFR parts 53 and 58.
3. Contingency Measures
    Pursuant to section 175A of the Act, 42 U.S.C. 7505A, a maintenance 
plan must include such contingency measures, as EPA deems necessary, to 
promptly correct any violation of the NAAQS which may occur after 
redesignation of the area to attainment. As explained in the Wegman and 
Calcagni memos, these contingency measures do not have to be fully 
adopted at the time of redesignation.
    The State will rely on monitored ambient air data to determine the 
need to implement contingency measures. In the event of an exceedance 
of the PM-10 standard, the State will review the monitored data, the 
local meteorological data, and the compliance of certain local 
facilities identified in the maintenance plan. If all such facilities 
are in compliance with applicable SIP and permit emission limits, the 
State will then determine the additional control measures the state 
will need to impose on the area's stationary sources in order to 
continue to maintain the NAAQS.
    In the event of three exceedances of the 24-hour PM-10 standard 
within a three-year period, the State will notify the stationary 
sources in the Weirton Area that the potential exists for a NAAQS 
violation, and that if a violation occurs, these sources will need to 
implement the measures previously identified. Within six months of 
receiving notice from the State, the stationary sources must submit a 
detailed plan of action to WVDEP to implement the identified additional 
control measures within 18 months after the state notifies the source 
of an actual violation of the NAAQS. The sources' additional control 
measure plans will be submitted to EPA for approval and incorporation 
into the SIP.

E. Has the State met Conformity Requirements?

    As we stated previously in this notice, EPA believes the conformity 
SIP requirements do not apply for purposes of evaluating a 
redesignation request, because conformity rules are still required 
after redesignation and Federal conformity rules apply where state 
rules have not been approved. The transportation conformity rule (40 
CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51 
and 93) apply to nonattainment areas and maintenance areas covered by 
an approved maintenance plan. Under either conformity rule, an 
acceptable method of demonstrating that a Federal action conforms to 
the applicable SIP is to demonstrate that expected emissions from the 
planned action are consistent with the emissions budget for the area.
    While EPA's LMP policy does not exempt an area from the need to 
demonstrate conformity, it explains that the area may demonstrate 
conformity without submitting an emissions budget. Under the LMP 
policy, emissions budgets are treated as essentially not constraining 
for the length of the maintenance period because it is unreasonable to 
expect that the qualifying areas would experience so much growth in 
that period that a violation of the PM-10 NAAQS would result. For 
transportation conformity purposes, EPA concludes that mobile source 
emissions in these areas need not be capped at any level for the 
maintenance period, and therefore the requirement for a regional 
emissions analysis would be considered to be met. Similarly, Federal 
actions subject to the general conformity rule could be considered to 
satisfy the ``budget test'' specified in Sec.  93.158(a)(5)(i)(A) for 
the same reasons that the budgets are essentially considered to be 
unlimited.
    For Federal actions which are required to address the specific 
requirements of the general conformity rule, one set of requirements 
applies particularly to ensuring that emissions from the action will 
not cause or contribute to new violations of the NAAQS, exacerbate 
current violations, or delay timely attainment. One way that this 
requirement can be met is to demonstrate that ``the total of direct and 
indirect emissions from the action (or portion thereof) is determined 
and documented by the State agency primarily responsible for the 
applicable SIP to result in a level of emissions which, together with 
all other emissions in the nonattainment area, would not exceed the 
emissions budgets specified in the applicable SIP.'' 40 CFR 
93.158(a)(5)(i)(A).
    The decision about whether to include specific allocations of 
allowable emissions increases to sources is one made by the State and 
local air quality agencies. These emissions budgets are not the same as 
those used in transportation conformity. Emissions budgets in 
transportation conformity are required to limit and restrain emissions. 
Emissions budgets in general conformity allow increases in emissions up 
to specified levels. West Virginia has chosen not to include specific 
emissions allocations for Federal projects that would be subject to the 
provisions of general conformity.
    While areas with maintenance plans approved under the LMP option 
are thus essentially not subject to the budget test, the areas remain 
subject to other transportation conformity requirements of 40 CFR part 
93, subpart A. Thus, the metropolitan planning organization (MPO) in 
the area or the State will still need to document and ensure that: (a) 
Transportation plans and projects provide for timely implementation of 
SIP transportation control measures in accordance with 40 CFR 93.113; 
(b) transportation plans and projects comply with the fiscal constraint 
element per 40 CFR 93.108; (c) the MPO's interagency consultation 
procedures meet applicable requirements of 40 CFR 93.105; (d) 
conformity of transportation plans is determined no less frequently 
than every four years, and conformity of plan amendments and 
transportation projects is demonstrated in accordance with the timing 
requirements specified in 40 CFR 93.104; (e) the latest planning 
assumptions and emissions model are used as set forth in 40 CFR 93.110 
and 40 CFR 93.111; (6) projects do not cause or contribute to any new 
localized carbon monoxide or particulate matter violations, in 
accordance with procedures specified in 40 CFR 93.123; and, (7) project 
sponsors and/or operators provide appropriate written commitments as 
specified in 40 CFR 93.125.

IV. Proposed Action

    Based on the foregoing analysis, we have determined that the 
Weirton Area fulfills the criteria for redesignation as attainment with 
the PM-10 NAAQS. EPA has determined that the submitted maintenance plan 
meets the requirements of the Act, and the Weirton Area fulfills the 
criteria for redesignation to attainment for the PM-10 NAAQS based on 
the State's May 24, 2004 submission. EPA is proposing to determine that 
the area has continued to attain the PM-10 NAAQS and to determine that 
certain attainment demonstration requirements, along with other related 
requirements of part D title I of the CAA as set forth above, are not 
applicable to the area. EPA is proposing to redesignate the Weirton PM-
10

[[Page 27447]]

moderate nonattainment area to attainment and to approve the West 
Virginia SIP revision for the 10-year maintenance plan for the Weirton 
Area, submitted on May 24, 2004. EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

V. 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. 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 proposed rule to redesignate the Weirton Area to attainment 
with the PM-10 NAAQS and approve the LMP as a SIP revision 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, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

40 CFR Part 81

    Environmental protection, Air Pollution Control, National parks, 
Wilderness areas.

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

    Dated: May 3, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E6-7216 Filed 5-10-06; 8:45 am]
BILLING CODE 6560-50-P