[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Proposed Rules]
[Pages 57894-57905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16177]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0682; FRL8226-1]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Redesignation of the West Virginia Portion of the 
Wheeling, WV-OH 8-Hour Ozone Nonattainment Area to Attainment and 
Approval of the Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and a 
State Implementation Plan (SIP) revision for the West Virginia portion 
of the Wheeling, WV-OH interstate area (herein referred to as the 
``Area'') from nonattainment to attainment of the 8-hour ozone National 
Ambient Air Quality Standard (NAAQS). The West Virginia Department of 
Environmental Protection (WVDEP) is requesting that the Marshall and 
Ohio County, West Virginia (Wheeling) portion of the area be 
redesignated as attainment for the 8-hour ozone NAAQS. The interstate 
8-hour ozone nonattainment area is comprised of three counties 
(Marshall and Ohio Counties, West Virginia (Wheeling) and Belmont 
County, Ohio (Belmont)). EPA is proposing to approve the ozone 
redesignation request for the Wheeling portion of the area. In 
conjunction with its redesignation request, the WVDEP submitted a SIP 
revision consisting of a maintenance plan for Wheeling that provides 
for continued attainment of the 8-hour ozone NAAQS for the next 12 
years. EPA is proposing to make a determination that Wheeling 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 determination that Wheeling 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 Wheeling maintenance plan 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 West Virginia SIP in accordance with the 
requirements of the CAA.

DATES: Written comments must be received on or before November 1, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0682 by one of the following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected]
    C. Mail: EPA-R03-OAR-2006-0682, Makeba Morris, Chief, Air Quality 
Planning Branch
    D. Mailcode 3AP21, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street,Philadelphia, Pennsylvania 19103.
    E. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0682. 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 www.regulations.gov 
or e-mail. The 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

[[Page 57895]]

comment directly to EPA without going through 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 
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. 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 the West Virginia Department of 
Environmental Protection, Division of Air Quality, 601 57th Street, 
SE., Charleston, WV 25304.

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 State's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and 
Identified in the Wheeling Maintenance Plan Adequate and Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews

I. What Actions Are EPA Proposing To Take?

    On July 24, 2006, WVDEP formally submitted a request to redesignate 
Wheeling from nonattainment to attainment of the 8-hour NAAQS for 
ozone. On July 24, 2006, West Virginia submitted a maintenance plan for 
Wheeling as a SIP revision, to ensure continued attainment over the 
next 12 years. Wheeling is comprised of Marshall and Ohio Counties. 
Wheeling is currently designated as a basic 8-hour ozone nonattainment 
area. EPA is proposing to determine that Wheeling 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 Wheeling from nonattainment to attainment for the 8-hour 
ozone NAAQS. EPA is also proposing to approve the maintenance plan SIP 
revision for Wheeling, such approval being one of the CAA requirements 
for approval of a redesignation request. The maintenance plan is 
designed to ensure continued attainment throughout Wheeling for the 
next 12 years. Additionally, EPA is announcing its action on the 
adequacy process for the MVEBs identified in the Wheeling maintenance 
plan, and proposing to approve the MVEBs identified for volatile 
organic compounds (VOC) and nitrogen oxides (NOX) for 
transportation conformity purposes. These MVEBs are state MVEBs for the 
West Virginia portion of the Area. In a separate redesignation request, 
the State of Ohio is establishing MVEBs and requesting redesignation to 
attainment for the remainder of the Area (i.e., Belmont County).

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 
Area was designated as basic 8-hour ozone nonattainment status in a 
Federal Register notice signed on April 15, 2004 and published on April 
30, 2004 (69 FR 23857). On June 15, 2005 (69 FR at 23996), the 1-hour 
ozone NAAQS was revoked in the Area (as well as most other areas of the 
country). See 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); and see 
70 FR 44470 (August 3, 2005).
    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 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 indicates that the area has a design value of 0.078 ppm 
for the 3-year period of 2002-2004 and a design value of

[[Page 57896]]

design value of 0.076 ppm for the 3-year period of 2003-2005. 
Therefore, the ambient ozone data for the area indicates no violations 
of the 8-hour ozone standard. Final monitoring data for 2005 indicates 
continued attainment of the 8-hour ozone standard in the area.

B. The Wheeling, WV-OH Area

    The Area consists of Marshall and Ohio Counties, West Virginia and 
Belmont County, Ohio. Prior to its designation as an 8-hour ozone 
nonattainment area, the Area was an attainment/unclassifiable area for 
the 1-hour ozone nonattainment NAAQS. See 56 FR 56694 (November 6, 
1991).
    On July 24, 2006, the WVDEP requested that Wheeling 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 
in the 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 July 24, 2006, the WVDEP requested redesignation of Wheeling to 
attainment for the 8-hour ozone standard. On July 24, 2006, the WVDEP 
submitted a maintenance plan for Wheeling as a SIP revision, to assure 
continued attainment over the next 12 years, until 2018. EPA has 
determined that Wheeling 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 Wheeling from nonattainment to attainment for the 8-hour ozone NAAQS 
found at 40 CFR part 81. It would also incorporate into the West 
Virginia SIP a maintenance plan ensuring continued attainment of the 8-
hour ozone NAAQS in Wheeling for the next 12 years, until 2018. The 
maintenance plan includes contingency measures to remedy any future 
violations of the 8-hour NAAQS (should they occur), and identifies 
MVEBs for NOX and VOC for transportation conformity purposes 
for the years 2004, 2009 and 2018. These motor vehicle emissions (2004) 
and MVEBs (2009 and 2018) are displayed in the following table:

     Table 1.--Motor Vehicle Emissions Budgets in Tons per Day (tpd)
------------------------------------------------------------------------
                          Year                              NOX     VOC
------------------------------------------------------------------------
2004....................................................     4.7     2.8
2009....................................................     4.3     2.5
2018....................................................     1.7     1.4
------------------------------------------------------------------------

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

    EPA is proposing to determine that Wheeling has attained the 8-hour 
ozone standard and that all other redesignation criteria have been met. 
The following is a description of how the WVDEP's July 24, 2006 
submittal satisfies the requirements of section 107(d)(3)(E) of the 
CAA.

A. The Wheeling, WV-OH Area Has Attained the 8-Hour Ozone NAAQS

    EPA is proposing to determine that the Area has attained the 8-hour 
ozone NAAQS. For ozone, an area may be considered to be attaining the 
8-hour

[[Page 57897]]

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 Air Quality 
System (AQS). The monitors generally should have remained at the same 
location for the duration of the monitoring period required for 
demonstrating attainment.
    In the area there is one ozone monitor, located in Ohio County, 
West Virginia that measures air quality with respect to ozone.\1\ As 
part of its redesignation request, West Virginia submitted ozone 
monitoring data for the years 2000-2005 for the area. This data has 
been quality assured and is recorded in AQS. The fourth high 8-hour 
daily maximum concentrations, along with the three-year averages, are 
summarized in Table 2.
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    \1\ While this monitor has been relocated twice, it remains 
within five miles of its original location. Statistical analysis 
indicates that the ozone monitoring sites have maintained the 
integrity of the 8-hour NAAQS. (See Technical Support Document 
(TSD).)

  Table 2.--Wheeling, WV-OH Fourth Highest 8-Hour Average Values; Ohio
                   County Monitor, AQS ID 54-069-0007
------------------------------------------------------------------------
                                                 Annual 4th high reading
                     Year                                 (ppm)
------------------------------------------------------------------------
2000..........................................  0.071
2001..........................................  0.088
2002..........................................  0.097
2003..........................................  0.076
2004..........................................  0.063
2005..........................................  0.089
------------------------------------------------------------------------
The average for the 3-year period 2002 through 2004 is 0.078 ppm.
The average for the 3-year period 2003 through 2005 is 0.076 ppm.
------------------------------------------------------------------------

    The air quality data for 2002-2004 show that the entire area has 
attained the standard with a design value of 0.078 ppm. Also, the air 
quality data for 2003-2005 show that the entire area is still attaining 
the 8-hour standard with a design value of 0.076 ppm. The data 
collected at the Ohio County 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 
WVDEP's request for redesignation for Wheeling indicates that the data 
was quality assured in accordance with 40 CFR part 58. The WVDEP uses 
AQS 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, WVDEP has committed to 
continue monitoring in accordance with 40 CFR part 58. In summary, EPA 
has determined that the data submitted by West Virginia and data taken 
from AQS indicates that the area has attained the 8-hour ozone NAAQS.

B. Wheeling Has Met All Applicable Requirements Under Section 110 and 
Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of 
the CAA

    EPA has determined that Wheeling has met all SIP requirements 
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 I 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 Wheeling, 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 came 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 submittal of a complete redesignation request for an 
area 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 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

[[Page 57898]]

designation and classifications 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. West Virginia and Ohio will still be subject to these 
requirements after the 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 53090 (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 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 West Virginia's SIP satisfies all of the applicable 
general SIP elements and requirements set forth in section 110(a)(2), 
EPA concludes that West 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 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. As discussed previously, the Area was designated attainment/
unclassifiable for the 1-hour standard, therefore, there are no 
outstanding Part D submittals under the 1-hour standard for the 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 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 
West Virginia's 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 Wheeling's redesignation request. Because the State submitted a 
complete redesignation request for Wheeling 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 Wheeling 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, 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.'' West Virginia has 
demonstrated that the area will be able to maintain the standard 
without Part D NSR in effect in Wheeling, and therefore, West Virginia 
need not have a fully approved Part D NSR program prior to approval of 
the redesignation request. West Virginia's SIP-approved PSD program 
will become effective in Wheeling upon redesignation to attainment. 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. Wheeling Has a Fully Approved SIP for the Purposes of Redesignation
    EPA has fully approved the West Virginia SIP for the purposes of 
this 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 Area was a 1-hour attainment/
unclassifiable area at the time of its designation as a basic 8-hour 
ozone nonattainment area on April 30, 2004. Because the Area was never 
designated as a Part D nonattainment area, there were no previous Part 
D SIP submittal requirements for the Area. Nor

[[Page 57899]]

have any Part D submittal requirements have come due prior to the 
submittal of the 8-hour maintenance plan for the area. Therefore, all 
Part D submittal requirements have been fulfilled. Because there are no 
outstanding SIP submission requirements applicable for the purposes of 
redesignation of Wheeling, 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 Area, and therefore they need 
not be approved into the SIP prior to redesignation.
4. The Air Quality Improvement in the Wheeling, WV-OH 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 States have 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 in the Area are shown in Table 
3.

   Table 3.--Wheeling (Marshall and Ohio County, West Virginia) Total VOC and NOX Emissions for 2002 and 2004
                                                     (tpd)*
----------------------------------------------------------------------------------------------------------------
                           Year                              Point       Area     Nonroad     Mobile     Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................        3.0       14.8        2.3        3.4       23.5
Year 2004................................................        3.0       15.4        2.3        2.8       23.5
                                                          ------------------------------------------------------
    Diff. (02-04)........................................          0       +0.6          0       -0.6          0
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................      152.2        3.4        5.6        5.5      166.7
Year 2004................................................       85.8        3.4        7.3        4.7      101.2
                                                          ------------------------------------------------------
    Diff. (02-04)........................................      -66.4          0       +1.7       -0.8      -65.5
----------------------------------------------------------------------------------------------------------------
               Belmont (Belmont County, Ohio) Total VOC and NOX Emissions for 2002 and 2004 (tpd)*
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................        0.2        4.1        1.0        4.4        9.7
Year 2004................................................        0.2        4.0        0.9        3.7        8.8
                                                          ------------------------------------------------------
    Diff. (02-04)........................................          0       -0.1       -0.1       -0.8       -0.9
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................       31.8        0.3        3.0        7.4       42.5
Year 2004................................................       28.7        0.3        2.9        6.3       38.2
                                                          ------------------------------------------------------
    Diff. (02-04)........................................       -3.1          0       -0.1       -1.1       -4.3
----------------------------------------------------------------------------------------------------------------
* Emissions not exact, due to rounding.

    Between 2002 and 2004, Wheeling VOC emissions stayed the same, and 
NOX emissions were reduced by 65.5 tpd, due to the following 
permanent and enforceable measures implemented or in the process of 
being implemented in Wheeling:

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) Clean Diesel Program.
    West Virginia has demonstrated that the implementation of permanent 
enforceable emissions controls have reduced local NOX 
emissions. Also, between 2002 and 2004, Belmont VOC emissions were 
reduced by 0.9 tpd and NOX emissions were reduced by 4.3 
tpd. Therefore, the entire Area is seeing a decrease in VOC and 
NOX emissions, due to permanent and enforceable measures.
    Nearly all of the reductions in NOX are attributable to 
the implementation of the NOX SIP Call. West Virginia has 
indicated in its submittal that the implementation of the 
NOX SIP Call, with its mandatory reductions in 
NOX emissions from Electric Generating Units (EGUs) and 
large industrial boilers (non-EGUs), reduced NOX emissions 
throughout the Area. NOX emissions from EGUs in Marshall and 
Ohio Counties, West Virginia were reduced by 60.3 tpd between 2002 and 
2004. NOX emissions from EGU's in Belmont County, Ohio were 
reduced by 3.1 tpd between 2002 and 2004. Also, NOX 
emissions from non-EGU sources in Marshall and Ohio Counties, West 
Virginia were reduced by 6.1 tpd between 2002 and 2004. The WVDEP 
believes that the improvement in ozone air quality from 2002 to 2004 
was the result of identifiable, permanent and enforceable reductions in 
ozone precursor emissions for the same period.

[[Page 57900]]

    Additionally, WVDEP has identified, but not quantified, additional 
reductions in VOC emissions that will be achieved as a co-benefit of 
the reductions in the emission of hazardous air pollutants (HAPs) as a 
result of implementation of EPA's Maximum Achievable Control Technology 
(MACT) standards.
    Other regulations, such as the non-road diesel, 69 FR 38958 (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 
emissions impacting the Ohio County 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 
nationally. 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 attainment of the 8-hour ozone 
standard.
5. Wheeling Has a Fully Approved Maintenance Plan Pursuant to Section 
175A of the CAA
    In conjunction with its request to redesignate Wheeling to 
attainment status, West Virginia submitted a SIP revision to provide 
for maintenance of the 8-hour ozone NAAQS in Wheeling for at least 12 
years after redesignation. West Virginia is requesting that EPA approve 
this SIP revision as meeting the requirement of CAA 175A. Once 
approved, the maintenance plan for the 8-hour ozone NAAQS will ensure 
that the SIP for Wheeling meets the requirements of the CAA regarding 
maintenance of the applicable 8-hour ozone standard.

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 State 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 Wheeling Maintenance Plan

    (a) Attainment Inventory--An attainment inventory includes the 
emissions during the time period associated with the monitoring data 
showing attainment. An attainment year of 2004 was used for Wheeling 
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.
    The WVDEP prepared comprehensive VOC and NOX emissions 
inventories for Wheeling, including point, area, mobile on-road, and 
mobile non-road sources for a base year of 2002.
    To develop the NOX and VOC base year emissions 
inventories, WVDEP used the following approaches and sources of data:
    (i) Point source emissions--West Virginia maintains its point 
source emissions inventory data on the i-STEPS database, which is 
commercial software. Facilities subject to emissions inventory 
reporting requirements were those operating point sources subject to 
Title V permitting requirements. Affected sources were identified from 
the WVDEP's Regulation 30 database, which is maintained by the WVDEP's 
Title V Permitting Group.
    (ii) Area source emissions--In order to calculate the area source 
emissions inventory the WVDEP took the annual values from the VISTAS 
base year inventory and derived the typical ozone summer weekday, using 
procedures outlined in the EPA's Emissions Modeling Clearinghouse 
(EMCH) Memorandum, ``Temporal Allocation of Annual Emissions Using EMCH 
Temporal Profiles, April 29, 2002.'' This enabled WVDEP to arrive at 
the ``typical'' summer day emissions.
    (iii) On-road mobile source emissions--VISTAS developed 2002 on-
road mobile (highway) emissions inventory data based on vehicle miles 
traveled (VMT) updates provided by WVDEP. VISTAS also estimated future 
emissions based upon expected growth for the future years 2009 and 
2018. However, federal Transportation Conformity requirements dictate 
that the WVDEP consult with the Metropolitan Planning Organization 
(MPO) responsible for transportation planning in developing SIP 
revisions which may establish MVEBs. This applies to the maintenance 
plan submitted by WVDEP on July 24, 2006. Therefore, the WVDEP has 
consulted with the Wheeling MPO, the Bel-O-Mar Regional Council (Bel-O-
Mar), as well as the West Virginia Department of Transportation (WVDOT) 
and the Ohio Department of Transportation (ODOT), to develop state 
MVEBs for the West Virginia portion of the nonattainment area. The ODOT 
maintains the Travel Damand Model (TDM) for the Bel-O-Mar area and 
provided base year and projection emissions data consistent with their 
most recent available TDM results along with EPA's most recent emission 
factor model, MOBILE6.2. The WVDEP used these data to estimate highway 
emissions and, in consultation with Bel-O-Mar and ODOT to develop 
highway emissions budgets for VOC and NOX.
    Bel-O-Mar, WVDOT, and ODOT must evaluate future Long Range 
Transportation Plans (LRTP) and Transportation Improvement Programs 
(TIP) to ensure that the associated emissions are equal to or less then 
the final emissions budgets. The budgets are designed to facilitate a 
positive conformity determination while ensuring overall maintenance of 
the 8-hour NAAQS. It should be noted that the MVEBs and budgets only 
represent the Wheeling (Marshall and Ohio Counties) portion of the 
nonattainment area.
    (iv) Mobile non-road emissions--Emissions for the 2002 inventory 
from nonroad sources were estimated in two steps. First, emissions for 
nonroad source categories that are included in the NONROAD model were 
developed. Second, emissions from sources not included in the NONROAD 
model were estimated.
    The 2002 mobile non-road emissions inventory was developed by WVDEP 
staff using the NONROAD2005b Model. NONROAD estimates fuel consumption 
and emissions of total hydrocarbons, carbon monoxide, nitrogen oxides, 
sulfur dioxide, and particulate matter for all nonroad mobile source 
categories

[[Page 57901]]

except for aircraft, locomotives, and commercial marine vessels (CMV).
    The 2004 attainment year VOC and NOX emissions for the 
Area are summarized along with the 2009 and 2018 projected emissions 
for this area in table 4, which covers the demonstration of maintenance 
for this area. EPA has concluded that West Virginia has adequately 
derived and documented the 2004 attainment year VOC and NOX 
emissions for the Area.
    (b) Maintenance Demonstration--On July 24, 2006, the WVDEP 
submitted a SIP revision to supplement its July 24, 2006 redesignation 
request. The submittal by WVDEP consists of the maintenance plan as 
required by section 175A of the CAA. The Wheeling 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 Wheeling through the 
year 2018. The Wheeling 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).
    Table 4 specifies the Area's VOC and NOX emissions for 
2004, 2009, and 2018. The WVDEP and Ohio EPA chose 2009 as an interim 
year in the 12-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 12-year 
maintenance period.

                        Table 4.--Wheeling, WV-OH Nonattainment Area Summary of Emissions
                                 [All emissions in tpd for an ozone season day]
----------------------------------------------------------------------------------------------------------------
                                                                 Emissions in tpd
                                --------------------------------------------------------------------------------
                                            2004                       2009                       2018
                                --------------------------------------------------------------------------------
                                  WV \1\   OH \2\   Total    WV \1\   OH \2\   Total    WV \1\   OH \2\   Total
----------------------------------------------------------------------------------------------------------------
Point:
    NOX........................     85.8     28.7    114.5     61.7     21.1     82.8     26.2     19.0     45.2
    VOC........................      3.0      0.2      3.2      2.8      0.1      2.9      3.3      0.2      3.5
Area:
    NOX........................      3.4      0.3      3.7      1.8      0.4      2.2      2.0      0.4      2.4
    VOC........................     15.4      4.0     19.4      7.3      3.9     11.2      8.4      3.9     12.3
Nonroad: \3\
    NOX........................      7.3      2.9     10.2      5.2      2.5      7.7      4.6      1.9      6.5
    VOC........................      2.3      0.9      3.2      2.1      0.8      2.9      1.8      0.6      2.4
MVEBs: \4\
    NOX........................      4.7      6.3     11.0      4.3      4.7      9.0      1.7      1.9      3.6
    VOC........................      2.8      3.5      6.3      2.5      2.6      5.1      1.4      1.5      2.9
Total: \5\
    NOX........................    101.2     38.2    139.4     72.9     28.7    101.6     34.5     23.2     57.7
    VOC........................     23.5      8.6     32.2     14.7      7.4     22.1     14.9      6.2     21.1
----------------------------------------------------------------------------------------------------------------
\1\ WV emissions are total emissions for Ohio and Marshall Counties in West Virginia.
\2\ OH emissions are total emissions for Belmont County in Ohio, as provided by Ohio EPA (see Appendix E).
\3\ Nonroad includes nonroad model results plus Commercial Marice Wessels, Railroad and Airports.
\4\ MVEBs for 2004 are actual; budgets established for 2009 and 2018 include 15% reallocation from the safety
  margin.
\5\ Sums may not total exactly due to rounding.

    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, CAIR, 
promulgated May 12, 2005 (70 FR 25161) should have positive impacts on 
West Virginia and Ohio'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 air quality in the Area.
    Currently, West Virginia is in the process of adopting rules to 
address CAIR through state rules 45CSR39, 45CSR40, and 45CSR41, which 
require annual and ozone season NOX reductions from EGUs and 
ozone season NOX reductions from non-EGUs. These rules were 
submitted to EPA as a SIP revision by September 11, 2006 as required in 
the May 12, 2005 (70 FR 25161) Federal Register publication.
    Based upon the comparison of the projected emissions and the 
attainment year emissions along with the additional measures, EPA 
concludes that WVDEP has successfully demonstrated that the 8-hour 
ozone standard should be maintained in the Area.
    (c) Monitoring Network--There is currently one monitor measuring 
ozone in the Area, located in Ohio County, West Virginia. West Virginia 
will continue to operate its current air quality monitor in accordance 
with 40 CFR part 58.
    (d) Verification of Continued Attainment--The State of West 
Virginia has the legal authority to implement and enforce specified 
measures necessary to attain and maintain the NAAQS. Additionally, 
Federal programs such as Tier 2/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 Area to maintain attainment.
    In addition to maintaining the key elements of its regulatory 
program, West Virginia requires ambient and source emissions data to 
track attainment and maintenance. The WVDEP proposes to fully update 
its point, area, and mobile emission inventories at 3-year intervals as 
required by the Consolidated Emissions Reporting Rule (CERR) to assure 
that its growth projections relative to emissions in these areas are 
sufficiently accurate to assure ongoing attainment with the NAAQS. The 
WVDEP will review stationary source

[[Page 57902]]

VOC and NOX emissions by review of annual emissions 
statements and by update of its emissions inventories. The area source 
inventory will be updated using the same techniques as the 2002 ozone 
inventory. However, some source categories may be updated using 
historic activity levels determined from Bureau of Economic Analysis 
(BEA) data or West Virginia University/Regional Research Institute 
(WVU/RRI) population estimates. The mobile source inventory model will 
be updated by obtaining county-level VMT from the WVDOT for the subject 
year and calculating emissions using the latest approved MOBILE model. 
Alternatively, the motor vehicle emissions may be obtained in 
consultation with the MPO, Bel-O-Mar, using methodology similar to that 
used for transportation conformity purposes. The WVDEP shall also 
continue to operate the existing ozone monitoring station in the areas 
pursuant to 40 CFR part 58 throughout the maintenance period and submit 
quality-assured ozone data to EPA through the AQS system.
    (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 State 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 measure(s) 
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 Wheeling to stay in compliance with the 8-hour ozone 
standard after redesignation depends upon VOC and NOX 
emissions in Wheeling remaining at or below 2004 levels. The State's 
maintenance plan projects VOC and NOX emissions to decrease 
and stay below 2004 levels through the year 2018. The State'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) If the triennial inventories indicate significant emissions 
growth above the 2004 maintenance base-year inventory or if a monitored 
air quality exceedance pattern indicates that an ozone NAAQS violation 
may be imminent--Then WVDEP will evaluate existing control measures to 
ascertain if additional regulatory revisions are necessary to maintain 
the ozone standard. The maintenance plan also states that an exceedance 
pattern would include, but is not limited to, the measurement of five 
exceedances or more occurring at the monitor during a calendar year.
    (ii) In the event that a violation of the 8-hour ozone standard 
occurs at the Ohio County, West Virginia monitor--The maintenance plan 
states that in the event that a violation of the ozone standard occurs 
at the Ohio County, West Virginia ozone the State of West Virginia will 
select and adopt one or more of the following measures to assure 
continued attainment:
     Extend the applicability of 45CSR21 (VOC/RACT rule) to 
include source categories previously excluded (e.g., waste water 
treatment facilities);
     Revised new source permitting requirements requiring more 
stringent emissions control technology and/or emissions offsets;
     NOX RACT requirements;
     Regulations to establish plant-wide emissions caps 
(potentially with emissions trading provisions);
     Establish a Public Awareness/Ozone Action Day Program, a 
two pronged program focusing on increasing the public's understanding 
of air quality issues in the region and increasing support for actions 
to improve the air quality, resulting in reduced emissions on days when 
the ozone levels are likely to be high.
     Initiate one or more of the following voluntary local 
control measures:
    (1) Bicycle and Pedestrian Measures--A series of measures designed 
to promote bicycling and walking including both promotional activities 
and enhancing the environment for these activities;
    (2) Reduce Engine Idling--Voluntary programs to restrict heavy duty 
diesel engine idling times for both trucks and school buses;
    (3) Voluntary Partnership with Ground Freight Industry--A voluntary 
program using incentives to encourage the ground freight industry to 
reduce emissions;
    (4) Increase Compliance with Open Burning Restrictions--Increase 
public awareness of the existing open burning restrictions and work 
with communities to increase compliance; and
    (5) School Bus Engine Retrofit Program--Have existing school bus 
engines retrofitted to lower emissions.
    The following schedule for adoption, implementation and compliance 
applies to the contingency measures concerning the option of 
implementing regulatory requirements.
     Confirmation of the monitored violation within 45 days of 
occurrence;
     Measure to be selected within 3 months after verification 
of a monitored ozone standard violation;
     Develop rule within 6 months of selection of measure;
     File rule with state secretary (process takes up to 42 
days);
     Applicable regulation to be fully implemented within 6 
months after adoption.
    The following schedule for adoption, implementation and compliance 
applies to the voluntary contingency measures.
     Confirmation of the monitored violation within 45 days of 
occurrence;
     Measure to be selected within 3 months after verification 
of a monitored ozone standard violation;
     Initiation of program development with local governments 
within Wheeling by the start of the following ozone season.
    (f) An Additional Provision of the Maintenance Plan--The State's 
maintenance plan for Wheeling has an additional provision. That 
provision states that based on the 2002 inventory data and calculation 
methodology, it is expected that area and mobile source emissions will 
not exhibit substantial increases between consecutive periodic year 
inventories. Therefore, if significant unanticipated emissions growth 
occurs, it is expected that point sources would be the cause. 40 CFR 
part 51, the CERR (67 FR 39602) requires that states submit an annual 
inventory of criteria pollutants for large point sources with actual 
emissions greater than or equal to any of the emission thresholds to 
EPA. Any significant increases that occur can be identified from these 
reports without waiting for a periodic inventory. This gives West 
Virginia the capability to identify needed regulations by source, 
source category and pollutant and to begin the rule promulgation 
process, if necessary, in an expeditious manner.
    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 
submitted by West Virginia for Wheeling meets the requirements of 
section 175A of the Act.

[[Page 57903]]

VII. Are the Motor Vehicle Emissions Budgets Established and Identified 
in the Wheeling Maintenance Plan 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 SIP.
    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 Wheeling are listed in Table 1 of this document for 
the 2004, 2009, and 2018 years and are the projected emissions for the 
on-road mobile sources plus any portion of the safety margin allocated 
to the MVEBs (safety margin allocation for 2009 and 2018 only). 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 2018 safety 
margin: Wheeling first attained the 8-hour ozone NAAQS during the 2002 
to 2004 time period. The State used 2004 as the year to determine 
attainment levels of emissions for Wheeling. The total emissions from 
point, area, mobile on-road, and mobile non-road sources in 2004 
equaled 23.6 tpd of VOC and 101.2 tpd of NOX. The WVDEP 
projected emissions out to the year 2018 and projected a total of 14.9 
tpd of VOC and 34.6 tpd of NOX from all sources in Wheeling. 
The safety margin for 2018 would be the difference between these 
amounts, or 8.7 tpd of VOC and 66.6 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 5 shows the safety 
margins for the 2009 and 2018 years.

           Table 5.--2009 and 2018 Safety Margins for Wheeling
------------------------------------------------------------------------
                                                      VOC         NOX
                 Inventory year                    emissions   emissions
                                                     (tpd)       (tpd)
------------------------------------------------------------------------
2004 Attainment.................................        23.6       101.2
2009 Interim....................................        14.8        72.9
2009 Safety Margin..............................         8.8        28.3
2004 Attainment.................................        23.6       101.2
2018 Final......................................        14.9        34.6
2018 Safety Margin..............................         8.7        66.6
------------------------------------------------------------------------

    The WVDEP allocated 0.56 tpd NOX and 0.33 tpd VOC to 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 2018 MVEBs 
the WVDEP allocated 0.22 tpd NOX and 0.19 tpd VOC from the 
2018 safety margins to arrive at the 2018 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 6 shows the final 2009 and 2018 MVEBS for Wheeling.

            Table 6.--2009 and 2018 Final MVEBs for Wheeling
------------------------------------------------------------------------
                                                    VOC          NOX
                Inventory year                   emissions    emissions
                                                   (tpd)        (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source projected         2.21         3.74
 emissions....................................
2009 Safety Margin Allocated to MVEBs.........         0.33         0.56
2009 MVEBs *..................................         2.54         4.30

[[Page 57904]]

 
2018 projected on-road mobile source projected         1.24         1.47
 emissions....................................
2018 Safety Margin Allocated to MVEBs.........         0.19         0.22
2018 MVEBs *..................................         1.43         1.69
------------------------------------------------------------------------
*Highway budgets are shown at a precision of two decimal places for
  conformity purposes.

C. Why Are the MVEBs Approvable?

    The 2009 and 2018 MVEBs for Wheeling 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 
Wheeling Maintenance Plan?

    The MVEBs for the Wheeling 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 Wheeling 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 Wheeling 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. Proposed Actions

    EPA is proposing to determine that the Area has attained the 8-hour 
ozone NAAQS. EPA is also proposing to approve the redesignation of the 
Wheeling portion of the Area from nonattainment to attainment for the 
8-hour ozone NAAQS. EPA has evaluated West 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 Wheeling has 
attained the 8-hour ozone standard. The final approval of this 
redesignation request would change the designation of Wheeling from 
nonattainment to attainment for the 8-hour ozone standard. EPA is also 
proposing to approve the associated maintenance plan for Wheeling, 
submitted on July 24, 2006, as a revision to the West Virginia SIP. EPA 
is proposing to approve the maintenance plan for Wheeling because it 
meets the requirements of section 175A as described previously in this 
notice. EPA is also proposing to approve the MVEBs submitted by West 
Virginia for Wheeling 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.

IX. 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. 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

[[Page 57905]]

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 Wheeling 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.).
    This rule proposing to approve the redesignation of Wheeling 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: September 21, 2006.
William T. Wisniewski,
Acting Regional Administrator, Region III.
 [FR Doc. E6-16177 Filed 9-29-06; 8:45 am]
BILLING CODE 6560-50-P