[Federal Register Volume 72, Number 93 (Tuesday, May 15, 2007)]
[Rules and Regulations]
[Pages 27247-27251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9287]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0682; FRL-8314-6]


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 Area's Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a redesignation request and a State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia. The West Virginia Department of Environmental Protection 
(WVDEP) is requesting that the Marshall and Ohio County, West Virginia 
(Wheeling) portion of the Wheeling, WV-OH area (herein referred to as 
the ``Area'') be redesignated as attainment for the 8-hour ozone 
national ambient air quality standard (NAAQS). In conjunction with its 
redesignation request, the State 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, until 2018. EPA is 
also approving the adequacy determination for the motor vehicle 
emission budgets (MVEBs) that are identified in the Wheeling 8-hour 
ozone maintenance plan for purposes of transportation conformity, and 
is approving those MVEBs. EPA is approving the redesignation request 
and the maintenance plan revision to the West Virginia SIP in 
accordance with the requirements of the CAA.

EFFECTIVE DATE: This final rule is effective on June 14, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2006-0682. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (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 through www.regulations.gov or in hard 
copy for public inspection 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:

I. Background

    On October 2, 2006 (71 FR 57894), EPA published a notice of 
proposed rulemaking (NPR) for the State of West Virginia. The NPR 
proposed approval of West Virginia's redesignation request

[[Page 27248]]

and a SIP revision that establishes a maintenance plan for Wheeling 
that sets forth how Wheeling will maintain attainment of the 8-hour 
ozone NAAQS for the next 12 years. The formal SIP revision was 
submitted by the WVDEP on July 24, 2006. Other specific requirements of 
West Virginia's redesignation request SIP revision for the maintenance 
plan and the rationales for EPA's proposed actions are explained in the 
NPR and will not be restated here.
    On October 20, 2006, EPA received a comment, from the West Virginia 
Division of Highways, in support of its October 2, 2006 NPR. Also, on 
October 28, 2006, EPA received adverse comments on the said October 2, 
2006 NPR. A summary of the comments submitted and EPA's responses are 
provided in Section II of this document.

II. Summary of Public Comments and EPA Responses

    Comment: The commenter stated that on behalf of the West Virginia 
Division of Highways, they would like to go on record as supporting the 
redesignation of the Wheeling, West Virginia portion of the Wheeling, 
WV-OH interstate area from nonattainment to attainment.
    Response: EPA acknowledges the comment of support for our final 
action.
    Comment: The commenter states that the Wheeling Area redesignation 
is based on 2002-2004 air quality data, and should instead be based on 
the most recent three years of air quality data, 2004-2006.
    Response: EPA disagrees that the 2006 data was available as a basis 
for redesignating Wheeling to attainment, and also disagrees with the 
comment that the redesignation cannot be based on the quality assured 
2002-2004 air quality data. EPA may redesignate an area to attainment 
of the 8-hour ozone NAAQS if three years of quality assured data 
indicate that the area has attained the standard and the most recent 
quality assured air quality data indicate that the area is still 
attaining the standard at the time of the redesignation. EPA has 
determined that the Wheeling, WV portion of the Wheeling, WV-OH 
nonattainment area has attained compliance with the 8-hour ozone NAAQS 
subsequent to the calendar year 2004 ozone season (April-October) based 
on three years (2002-2004) of quality assured data. It is also worth 
noting that while our determination that the Area has attained the 
standard is based on the 2002-2004 data, the 2005 calendar year quality 
assured data and the newly available quality assured data from 2006, 
indicate that the Area continues to attain the standard. The 2005 and 
2006 data support our conclusion in the notice of proposed rulemaking 
(NPR) on October 2, 2006 (71 FR 57894) that emissions reductions in the 
Area can be attributed to permanent and enforceable measures throughout 
the Area and that air quality monitoring date indicates that the Area 
continues to attain the 8-hour ozone NAAQS.\1\
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    \1\ The fourth highest 8-hour ozone monitoring values at the 
Ohio County, West Virginia monitor for 2006 were 0.085 ppm, 0.083 
ppm, 0.079 ppm, and 0.079 ppm. Thus the design value at the Area 
monitor for monitoring years 2004-2006 are still showing attainment 
of the 8-hour NAAQS with a value of 0.077 ppm at the Wheeling 
monitor.
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    Comment: The commenter asserts that EPA should not approve the 
redesignation of Wheeling because the Wheeling monitor was twice 
relocated during calendar years 2004 and 2005. The commenter states 
that (at its current location) the Wheeling ozone monitor should 
operate for one additional year in order to confirm attainment of the 
NAAQS and that EPA should not act on WVDEP's redesignation request 
until the air quality data for the additional monitoring period have 
been evaluated.
    Response: Since 1982, WVDEP has operated and maintained an ozone 
monitoring station for the West Virginia portion of the Wheeling Area. 
The commenter refers to the Wheeling monitor as having been relocated 
from ``Site 7'' to ``Site 9,'' and finally to ``Site 10.'' The 
monitoring station was originally located at WVDEP's Northern Panhandle 
Regional Office. The station continued to operate at this location 
(Site 7) until WVDEP had to discontinue the operations at the site due 
to the relocation of its Northern Panhandle Regional Office prior to 
the calendar year 2004 ozone season (April through October). As a 
result, WVDEP installed an interim ozone station in the Wheeling Area 
which was located approximately four miles south of the station's 
original location and collected data for the 2004 ozone season (Site 
9). In anticipation of the 2005 season, WVDEP established a new site 
for the Wheeling ozone monitor which was approximately three-tenths of 
a mile south of the monitor's original location (Site 10). The new 
monitoring site is similar in characteristics to the original 
monitoring site. The sites are located in the same river valley with no 
obstructions between the sites and have a similar distribution of 
surrounding ozone sources. Both monitoring locations are located within 
the City of Wheeling, West Virginia and the surrounding areas have 
comparable population density, with no large industrial sources, and no 
adjacent highways. The current location of the Wheeling ozone monitor 
is in an area which has the infrastructure and arranged access to 
operate for many years.
    The data from monitoring sites 7, 9, and 10 were pooled for two 
three-year periods: (1) 2002, 2003, and 2004 (Sites 7 and 9) and (2) 
2003, 2004 and 2005 (Sites 7, 9, 10). In addition, the data from 
monitoring sites 9 and 10 were pooled for 2004-2006. See also, footnote 
1. The commenter asserted that data obtained from Site 9 was a ``poor 
site'' and that the data obtained from this site in 2004 was of low 
value for purpose of the 8-hour ozone NAAQS. EPA evaluated ozone 
statistics for the Wheeling Area for 2004 (i.e., number of days with 
eight-hour averages greater than 0.0084 ppm and 4th highest eight-hour 
average for the year), and found them to be reasonable and consistent 
when compared to ozone measurements collected in Wheeling and at other 
nearby monitoring stations in the Ohio River Valley during the period 
examined (1998 thru 2005).
    Based on a review of ozone air quality data from the Wheeling Area 
for this period, the proximity and characteristics of the monitoring 
sites, and giving consideration to WVDEP's reasons for relocating the 
ozone monitoring station during period of 2003-2005, EPA has concluded 
that the integrity of ozone data submitted for this Area was not 
affected by the fact that the data was collected from three different, 
and relatively close together, monitoring locations. This data is 
acceptable for purposes of redesignating the Wheeling Area to 
attainment of the 8-hour ozone NAAQS.
    Comment: The commenter asserts that cold and wet summers, rather 
than enforceable emissions reductions are a significant cause of 
improvement of air quality in Wheeling, although the commenter also 
asserts based on the number of days exceeding 84 ppb in 2005 that the 
air quality is actually not improving.
    Response: In accordance with Appendix I to 40 CFR Part 50, 
compliance with the 8-hour ozone NAAQS is met at an ambient air 
monitoring site when 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; it is not based on the number of days which exceed the 8-
hour ozone standard. Additionally, EPA uses the three-year averaging 
period to minimize year to year variations in the summer (i.e., ozone 
season) weather. See Redesignation of Pittsburgh, Pennsylvania, 66 FR 
53094, 53100

[[Page 27249]]

(October 19, 2001). Therefore, the number of days exceeding 84 ppb are 
not relevant to a determination of whether an area (or portion 
thereof), has attained the 8-hour ozone NAAQS. Information relative to 
long term trends of West Virginia summer temperatures and rainfall-
based data was obtained from the National Oceanic and Atmospheric 
Administration's (NOAA) National Climate Data Center (please see 
attached). Based on EPA's review, this information shows that the 
summers 2000 through 2006 experienced year to year variations in 
average summer temperature and rainfall typical of the summer seasons 
in the State of West Virginia. Thus the improvement in air quality is 
not due to unusually cold and wet summers. Rather, the improvement in 
air quality is due to the implementation of permanent and enforceable 
measures as explained in the NPR. The permanent and enforceable 
measures listed in the Wheeling NPR include the National Low Emissions 
Vehicle (NLEV), motor vehicle fleet turnover with new vehicles meeting 
the Tier 2 standards, and the Clean Diesel Program. These federal 
vehicle programs along with the NOX SIP Call resulted in a 
0.9 tons per year (tpy) decrease in VOC emissions and a 69.8 tpy 
decrease in NOX emissions throughout the Wheeling Area 
between 2002 and 2004. Therefore, EPA believes that the improvement in 
8-hour ozone air quality is a result of identifiable, permanent and 
enforceable reductions in ozone precursor emissions, not unusually cold 
and wet summers.
    Comment: The commenter requests air quality data for time periods 
outside the time period be used for redesignation, and for areas 
outside the West Virginia portion of the Wheeling Area which is the 
subject of this rulemaking, and other air quality data such as data 
provided by the Clean Air Status and Trends Network (CASTNET) and the 
National Atmospheric Deposition Program (NADP) monitoring networks, 
which has not been used to support this rulemaking. The commenter also 
insists that monitoring data from a rural ozone monitoring site, a 
CASTNET monitor, located in adjacent Noble County, Ohio should have 
been considered in this rulemaking.
    Response: As discussed previously, the redesignation is 
demonstrated by the quality assured 2002-2004 ozone monitoring data, 
and continued attainment of the 8-hour ozone NAAQS is demonstrated by 
the quality assured 2005 and 2006 ozone monitoring data for the 
Wheeling Area. Other air quality data, from other monitoring networks 
or for time periods outside the years being used to support the 
redesignation request, or which are located outside the Wheeling Area 
(i.e., Noble County, OH CASTNET monitor), are not relevant to the 
redesignation request. Furthermore, CASTNET and NADP monitors are not 
operated for purposes of the regional ozone monitoring network nor do 
they satisfy the quality assurance requirements necessary to support 
requests for redesignation.
    Additionally, the United States Court of Appeals for the District 
of Columbia Circuit recently vacated EPA's April 30, 2004 ``Final Rule 
To Implement the 8-Hour Ozone National Ambient Standard'' (the Phase 1 
implementation rule). South Coast Air Quality Management District v. 
EPA, 472 F.3d 882 (D.C. Cir. 2007). EPA issued a supplemental proposed 
rulemaking that set forth its views on the potential effect of the 
Court's ruling on this and other proposed redesignation actions. 72 FR 
13452 (March 22, 2007). EPA proposed to find that the Court's ruling 
does not alter any requirements relevant to the proposed redesignations 
that would prevent EPA from finalizing these redesignations, for the 
reasons fully explained in the supplemental notice. EPA provided a 15-
day review and comment period on this supplemental proposed rulemaking. 
The public comment period closed on April 6, 2007. EPA received six 
comments, all supporting EPA's supplemental proposed rulemaking, and 
supporting redesignation of the affected areas. EPA recognizes the 
support provided in these comments as well, but again, we do not 
believe any specific response to comments is necessary with respect to 
these comments. In addition, several of these comments included 
additional rationale for proceeding with these proposed redesignations. 
EPA had not requested comment on any additional rationale, does not 
believe any additional rationale is necessary, and similarly does not 
believe any specific response to these comments is necessary, and thus 
has not provided any.

III. Final Action

    EPA is approving the State of West Virginia's July 24, 2006 
redesignation request and maintenance plan because the requirements for 
approval have been satisfied. EPA has evaluated West Virginia's 
redesignation request, submitted on July 24, 2006, 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 will change the 
designation of Wheeling from nonattainment to attainment for the 8-hour 
ozone standard. EPA is approving the associated maintenance plan for 
Wheeling, submitted on July 24, 2006, as a revision to the West 
Virginia SIP. EPA is approving the maintenance plan for Wheeling 
because it meets the requirements of section 175A.
    EPA is also approving the MVEBs submitted by West Virginia in 
conjunction with its redesignation request. In this final rulemaking, 
EPA is notifying the public that we have found that the MVEBs for 
NOX and VOCs in the Wheeling 8-hour ozone maintenance plan 
are adequate and approved for conformity purposes. As a result of our 
finding, Marshall and Ohio Counties must use the MVEBs from the 
submitted 8-hour ozone maintenance plan for future conformity 
determinations. The adequate and approved MVEBs are provided in the 
following table:

  Adequate and Approved Motor Vehicle Emissions Budgets (MVEBs) in Tons
                              per Day (TPD)
------------------------------------------------------------------------
                  Budget year                       NOX          VOC
------------------------------------------------------------------------
2009..........................................          4.3          2.5
2018..........................................          1.7          1.4
------------------------------------------------------------------------

Wheeling is subject to the CAA's requirements for basic ozone 
nonattainment areas until and unless it is redesignated to attainment.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final 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 Fed. Reg. 28355 (May 22, 2001)). 
This action approves 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 final

[[Page 27250]]

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 approves 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 final 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 affects 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 final rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it 
approves a state rule implementing a Federal standard. 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 final 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 16, 2007. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action.
    This action, to approve the redesignation request, maintenance plan 
and adequacy determination for MVEBs for Wheeling, may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2)).

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: May 8, 2007.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table in paragraph (e) is amended by adding an 
entry for the 8-Hour Ozone Maintenance Plan, Wheeling, WV-OH Area at 
the end of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

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    Name of non-regulatory  SIP       Applicable geographic       State
              revision                        area           submittal date            EPA approval date                   Additional explanation
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                                                                      * * * * * * *
8-Hour Ozone Maintenance Plan for    Marshall and Ohio             07/24/06  05/15/07 [Insert page number where
 the Wheeling, WV-OH Area.            County.                                 the document begins].
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PART 81--[AMENDED]

0
3. The authority citation for part 81 continues to read as follows:

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


0
4. In Sec.  81.349 the table entitled ``West Virginia--Ozone (8-Hour 
Standard)'' is amended by revising the entry for the Wheeling, WV-OH 
Area to read as follows:


Sec.  81.349  West Virginia.

* * * * *

[[Page 27251]]



                                                         West Virginia--Ozone (8-Hour Standard)
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                                                     Designation \a\                                        Category/classification
          Designated area          ---------------------------------------------------------------------------------------------------------------------
                                       Date \1\                   Type                            Date \1\                            Type
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                                                                      * * * * * * *
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                                                                  Wheeling, WV-OH Area
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Marshall County...................         5/15/07  Attainment.
Ohio County.......................         5/15/07  Attainment.
 
                                                                      * * * * * * *
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a Includes Indian country located in each county or area except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

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 [FR Doc. E7-9287 Filed 5-14-07; 8:45 am]
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