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

[Federal Register: May 15, 2007 (Volume 72, Number 93)]
[Rules and Regulations]
[Page 27247-27251]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my07-6]

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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 http://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 http://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 caprio.amy@epa.gov.

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 NO_X SIP Call resulted in a
0.9 tons per year (tpy) decrease in VOC emissions and a 69.8 tpy
decrease in NO_X 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
NO_X 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 (59 FR 22951, 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.

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

PART 52--[AMENDED]

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

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

Subpart XX--West Virginia

• 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
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
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]

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

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

• 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.

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

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