

[Federal Register: May 4, 2006 (Volume 71, Number 86)]
[Proposed Rules]               
[Page 26299-26310]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my06-28]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2005-0548; FRL-8165-4]

 
Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Redesignation of the Charleston Ozone Nonattainment Area 
to Attainment and Approval of the Area's 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 submitted by the State of West 
Virginia. The West Virginia Department of Environmental Protection 
(WVDEP) is requesting that the Charleston area be redesignated as 
attainment for the 8-hour ozone national ambient air quality standard 
(NAAQS). In conjunction with its redesignation request, the WVDEP 
submitted a SIP revision consisting of a maintenance plan for the 
Charleston area that provides for continued attainment of the 8-hour 
ozone NAAQS for the next 12 years. EPA is proposing to make a 
determination that the Charleston area has attained the 8-hour ozone 
NAAQS based upon three years of complete, quality-assured ambient air 
quality ozone monitoring data for 2002-2004. EPA's proposed approval of 
the 8-hour ozone redesignation request is based on its determination 
that the Charleston area has met the criteria for redesignation to 
attainment specified in the Clean Air Act (CAA). EPA is providing 
information on the status of its adequacy determination for the motor 
vehicle emission budgets (MVEBs) that are identified in the maintenance 
plan for the Charleston area for purposes of transportation conformity, 
and is also proposing to approve those MVEBs. EPA is proposing approval 
of the redesignation request and of the maintenance plan revision to 
the West Virginia SIP in accordance with the requirements of the CAA.

DATES: Written comments must be received on or before June 5, 2006.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2005-0548 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: morris.makeba@epa.gov.
    C. Mail: EPA-R03-OAR-2005-0548, Makeba Morris, Chief, Air Quality 
Planning Branch.

[[Page 26300]]

    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-
2005-0548. 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.epa.gov/edocket, http://www.regulations.gov, including 
any personal information provided, unless the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI or otherwise protected 
through http://www.regulations.gov or e-mail. The www.regulations.gov Web site 

is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. 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 caprio.amy@epa.gov.

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 Maintenance Plan for the Charleston Area Adequate 
and Approvable?
VIII. Proposed Action
IX. Statutory and Executive Order Reviews

I. What Actions Are EPA Proposing To Take?

    On November 30, 2005, WVDEP formally submitted a request to 
redesignate the Charleston area from nonattainment to attainment of the 
8-hour NAAQS for ozone. On November 30, 2005, West Virginia submitted a 
maintenance plan for the Charleston area as a SIP revision, to ensure 
continued attainment over the next 12 years. The Charleston area is 
composed of Kanawha and Putnam Counties. It is currently designated as 
a basic 8-hour ozone nonattainment area. EPA is proposing to determine 
that the Charleston area has attained the 8-hour ozone NAAQS and that 
it has met the requirements for redesignation pursuant to section 
107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the 
redesignation request to change the designation of the Charleston area 
from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is 
also proposing to approve the maintenance plan SIP revision for the 
area, such approval being one of the CAA requirements for approval of a 
redesignation request. The maintenance plan is designed to ensure 
continued attainment in the Charleston area for the next 12 years. 
Additionally, EPA is announcing its action on the adequacy process for 
the MVEBs identified in the maintenance plan, and proposing to approve 
the MVEBs identified for volatile organic compounds (VOC) and nitrogen 
oxides (NOX) for the Charleston area for transportation 
conformity purposes. Concurrently, the State is requesting that EPA 
approve the maintenance plan as meeting the requirements of CAA 
175(A)(b) with respect to the 1-hour ozone maintenance plan update.

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 
Charleston area was designated as basic 8-hour ozone nonattainment 
status in a Federal Register notice signed on April 25, 2004 and 
published on April 30, 2004 (69 FR 23857). On June 15, 2005 (69 FR at 
23396), the 1-hour ozone NAAQS was revoked in the Charleston area (as 
well as most other areas of the country). See 40 CFR 50.9(b); 69 FR at 
23396, 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 an 
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

[[Page 26301]]

subpart 2 requirements). All other areas are covered under subpart 1, 
based upon their 8-hour design values. In 2004, the Charleston 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 concentration is less than or equal 
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR 
23857, (April 30, 2004) for further information. Ambient air quality 
monitoring data for the 3-year period must meet data completeness 
requirements. The data completeness requirements are met when the 
average percent of days with valid ambient monitoring data is greater 
than 90 percent, and no single year has less than 75 percent data 
completeness as determined in Appendix I of 40 CFR part 50. The ozone 
monitoring data from the 3-year period of 2002-2004 indicates that the 
Charleston area has a design value of 0.081 ppm. Therefore, the ambient 
ozone data for the Charleston area indicates no violations of the 8-
hour ozone standard. Monitoring data for 2005 indicates continued 
attainment of the 8-hour ozone standard.

B. The Charleston Area

    The Charleston area consists of Kanawha and Putnam Counties. Prior 
to its designation as an 8-hour ozone nonattainment area, the 
Charleston area was a maintenance area for the 1-hour ozone 
nonattainment NAAQS.
    On November 30, 2005, the WVDEP requested that the Charleston area 
be redesignated to attainment for the 8-hour ozone standard. The 
redesignation request included 3 years of complete, quality-assured 
data for the period of 2002-2004, indicating that the 8-hour NAAQS for 
ozone had been achieved in the Charleston 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 (TSDs) 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 November 30, 2005, the WVDEP requested redesignation of the 
Charleston area to attainment for the 8-hour ozone standard. On 
November 30, 2005, the WVDEP submitted a maintenance plan for the 
Charleston area as a SIP revision, to assure continued attainment over 
the next 12 years, until 2018. Concurrently, West Virginia is 
requesting that EPA approve maintenance plan as meeting the 
requirements of CAA 175A(b) with respect to the 1-hour ozone 
maintenance plan update. EPA is proposing to approve the maintenance 
plan to fulfill the requirement of section 175A(b) for submission of a 
maintenance plan update eight years after the area was redesignated to 
attainment of the 1-hour ozone NAAQS. EPA believes that such an update 
must ensure that the maintenance plan in the SIP provides maintenance 
of the NAAQS for a period of 20 years after the area is initially 
redesignated to attainment. EPA can propose approval because the 
maintenance plan, which demonstrates maintenance of the 8-hour ozone 
NAAQS through 2018, also demonstrates maintenance of the 1-hour ozone 
NAAQS through 2018, even though the latter standard is no longer

[[Page 26302]]

in effect. The Charleston area was redesignated to attainment of the 1-
hour ozone NAAQS on September 6, 1994 (59 FR 45985), and, the initial 
1-hour ozone maintenance plan provided for maintenance through 2005. 
Section 51.905(e) of the ``Final Rule To Implement the 8-Hour 
Requirements--Phase 1,'' April 30, 2004 (69 FR 23999) specifies the 
conditions that must be satisfied before EPA may approve a modification 
to a 1-hour maintenance plan which: (1) removes the obligation to 
submit a maintenance plan for the 1-hour ozone NAAQS eight years after 
approval of the initial 1-hour maintenance plan and/or (2) removes the 
obligation to implement contingency measures upon a violation of the 1-
hour NAAQS. EPA believes that section 51.905(e) of the final rule 
allows a State to make either one or both of these modifications to a 
1-hour maintenance plan SIP once EPA approves a maintenance plan for 
the 8-hour NAAQS. The maintenance plan will not trigger the contingency 
plan upon a violation of the 1-hour ozone NAAQS, but upon a violation 
of the 8-hour ozone NAAQS. EPA believes that the 8-hour standard is now 
the proper standard which should trigger the contingency plan now that 
the 1-hour NAAQS has been revoked and now that approval of the 
maintenance plan would allow the State to remove a 1-hour NAAQS 
obligation from the SIP. EPA has determined that the Charleston area 
has attained the standard and has met the requirements for 
redesignation set forth in section 107(d)(3)(E).

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the designation 
of the Charleston area 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 the Charleston area 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 the MVEBs for NOX and VOC for transportation 
conformity purposes for the years 2004, 2009 and 2018. These MVEBs are 
displayed in the following table:

        Table 1.--Motor Vehicle Emissions Budgets in Tons per Day
                                  [tpd]
------------------------------------------------------------------------
                    Year                           NOX           VOC
------------------------------------------------------------------------
2004........................................         26.4          16.1
2009........................................         19.8          11.6
2018........................................          8.20          7.20
------------------------------------------------------------------------

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

    EPA is proposing to determine that the Charleston nonattainment 
area has attained the 8-hour ozone standard and that all other 
redesignation criteria have been met. The following is a description of 
how the WVDEP's November 30, 2005 submittal satisfies the requirements 
of section 107(d)(3)(E) of the CAA.

A. The Charleston Area Has Attained the 8-Hour Ozone NAAQS

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

  Table 2.--Charleston Nonattainment Area Fourth Highest 8-Hour Average
             Values; Charleston Monitor, AIRS ID 54-033-4000
------------------------------------------------------------------------
                                                            Annual 4th
                          Year                             high reading
                                                               (ppm)
------------------------------------------------------------------------
2002....................................................           0.087
2003....................................................           0.088
2004....................................................           0.069
2005....................................................           0.079
------------------------------------------------------------------------
    The average for the 3-year period 2002 through 2004 is 0.081 ppm.
------------------------------------------------------------------------

    The data for 2002-2004 show that the area has attained the 
standard, and preliminary data for the 2005 ozone season show that the 
annual fourth high reading is 0.079 ppm and that the area continues to 
attain the standard. The data collected at the Charleston 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 
the Charleston area indicates that the data was quality assured in 
accordance with 40 CFR part 58. The WVDEP uses AIRS as the permanent 
database to maintain its data and quality assures the data transfers 
and content for accuracy. In addition, as discussed below with respect 
to the maintenance plan, 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 indicates that the Charleston area has 
attained the 8-hour ozone NAAQS.

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

    EPA has determined that West Virginia has met all SIP requirements 
for the Charleston area applicable for purposes of redesignation under 
section 110 of the CAA (General SIP Requirements) and that it meets all 
applicable SIP requirements under Part D of Title 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 the area, and 
determined that the applicable portions of the SIP

[[Page 26303]]

meeting these requirements are fully approved under section 110(k) of 
the CAA. We note that SIPs must be fully approved only with respect to 
applicable requirements.
    The September 4, 1992 Calcagni memorandum (``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E) with respect to the timing of applicable requirements. 
Under this interpretation, to qualify for redesignation, states 
requesting redesignation to attainment must meet only the relevant CAA 
requirements that come due prior to the submittal of a complete 
redesignation request. See also Michael Shapiro memorandum, September 
17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of 
Detroit-Ann Arbor). Applicable requirements of the CAA that come due 
subsequent to the area's submittal of a complete redesignation request 
remain applicable until a redesignation is approved, but are not 
required as a prerequisite to redesignation. Section 175A(c) of the 
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 
25424, 25427 (May 12, 2003) (redesignation of St. Louis).
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 
110(a)(2) include, but are not limited to, the following:
     Submittal of a SIP that has been adopted by the state 
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate 
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for 
the implementation of Part C requirement (Prevention of Significant 
Deterioration (PSD));
     Provisions for the implementation of Part D requirements 
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in 
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a state from significantly contributing to air 
quality problems in another state. To implement this provision, EPA has 
required certain states to establish programs to address transport of 
air pollutants in accordance with the NOX SIP Call, October 
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May 
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean 
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25161). However, the 
section 110(a)(2)(D) requirements for a state are not linked with a 
particular nonattainment area's designation and classification in that 
state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and 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. The State will still be subject to these requirements 
after the Charleston area is redesignated. The section 110 and Part D 
requirements, which are linked with a particular area's designation and 
classification, are the relevant measures to evaluate in reviewing a 
redesignation request. This policy is consistent with EPA's existing 
policy on applicability of conformity (i.e., for redesignations) and 
oxygenated fuels requirement. See Reading, Pennsylvania, proposed and 
final rulemakings 61 FR 53174-53176 (October 10, 1996), 62 FR 24816 
(May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking 61 FR 
20458 (May 7, 1996); and Tampa, Florida, final rulemaking 60 FR 62748 
(December 7, 1995). See also the discussion on this issue in the 
Cincinnati redesignation 65 FR 37890 (June 19, 2000), and in the 
Pittsburgh redesignation 66 FR 50399 (October 19, 2001). Similarly, 
with respect to the NOX SIP Call rules, EPA noted in its 
Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the 
NOX SIP Call rules are not ``an `applicable requirement' for 
purposes of section 110(l) because the NOX rules apply 
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Any section 110 requirements that are linked to the Part D requirements 
for 8-hour ozone nonattainment areas are not yet due, because, as we 
explain later in this notice, no Part D requirements applicable for 
purposes of redesignation under the 8-hour standard became due prior to 
submission of the redesignation request.
    Because the West Virginia 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 Charleston area was designated a basic nonattainment area for 
the 8-hour ozone standard. Sections 172-176 of the CAA, found in 
subpart 1 of Part D, set forth the basic nonattainment requirements for 
all nonattainment areas. Since the Charleston area was maintaining 
attainment of the 1-hour standard at the time of its designation as a 
basic 8-hour ozone nonattainment area on April 30, 2004, no Part D 
submittals under the 1-hour standard were required or made for this 
area.
    Section 182 of the CAA, found in subpart 2 of Part D, establishes 
additional specific requirements depending on the area's nonattainment 
classification. The Charleston area was classified as a subpart 1 
nonattainment area; therefore, no subpart 2 requirements apply to this 
area.
    With respect to the 8-hour standard, EPA proposes to determine that 
the West Virginia SIP meets all applicable SIP requirements under Part 
D of the CAA, because no 8-hour ozone standard Part D requirements 
applicable for purposes of redesignation became due prior to submission 
of the area's redesignation request. Because the State submitted a 
complete redesignation request for the Charleston area prior to the 
deadline for any submissions required under the 8-hour standard, we 
have determined that the Part D requirements do not apply to the 
Charleston area for the purposes of redesignation
    In addition to the fact that Part D requirements applicable for 
purposes of redesignation did not become due prior

[[Page 26304]]

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 the Charleston area, 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 the area upon redesignation to 
attainment in the Charleston area. See rulemakings for Detroit, MI (60 
FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 
20458, 20469-70, May 7, 1996); Louisville, KY (66 FR 53665, October 23, 
2001); Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
3. The Area Has a Fully Approved SIP for the Purposes of Redesignation
    EPA has fully approved the West Virginia SIP for the purposes of 
redesignation. EPA may rely on prior SIP approvals in approving a 
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania 
Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998), Wall 
v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures it 
may approve in conjunction with a redesignation action. See 68 FR 25425 
(May 12, 2003) and citations therein.
    The Charleston area was maintaining attainment of the 1-hour 
standard at the time of its designation as a basic 8-hour ozone 
nonattainment area on April 30, 2004. Because the area was redesignated 
as a 1-hour maintenance area, no Part D SIP submittals were previously 
required. Because there are no current SIP submission requirements 
applicable for the purposes of redesignation of the Charleston area, 
the applicable implementation plan satisfies all pertinent SIP 
requirements. As indicated previously, EPA believes that the section 
110 elements not connected with Part D nonattainment plan submissions 
and not linked to the area's nonattainment status are not applicable 
requirements for purposes of redesignation. EPA also believes that no 
8-hour Part D requirements applicable for purposes of redesignation 
have yet become due for the Charleston area, and therefore they need 
not be approved into the SIP prior to redesignation.
4. The Air Quality Improvement in the Charleston 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 State has demonstrated that the observed air 
quality improvement in the area is due to permanent and enforceable 
reductions in emissions resulting from implementation of the SIP, 
Federal measures, and other state-adopted measures. Emissions 
reductions attributable to these rules are shown in Table 3.

                             Table 3.--Total VOC and NOX Emissions for 2002 and 2004
                                                      [tpd]
----------------------------------------------------------------------------------------------------------------
                           Year                              Point       Area     Nonroad     Mobile     Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................       10.1       21.2        5.5       15.7       52.5
Year 2004 *..............................................       10.0       20.9        5.3       13.4       49.6
Diff. (02-04)............................................       -0.1       -0.3       -0.2       -2.3       -2.9
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................      133.8        2.4       13.0       25.5      174.7
Year 2004 *..............................................       87.8        2.5       12.7       22.0      125.0
Diff. (02-04)............................................      -46.0       +0.1       -0.3       -3.5     -49.7
----------------------------------------------------------------------------------------------------------------
* 2004 Emissions estimated by linear interpolation for all sectors except highway and point EGUs.

    Between 2002 and 2004, VOC emissions were reduced by 2.9 tpd, and 
NOX emissions were reduced by 49.7 tpd, due to the following 
permanent and enforceable measures implemented or in the process of 
being implemented in the Charleston area:

Programs Currently in Effect

    (a) National Low Emission Vehicle (NLEV);

[[Page 26305]]

    (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 VOC and 
NOX emissions. Nearly all of the reductions in VOC are 
attributable to mobile source emission controls such as NLEV and Tier 2 
programs. The mobile programs produced 2.3 tpd of VOC reductions and 
3.5 tpd of NOX reductions.
    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 Charleston area. NOX emissions from EGUs in 
the Charleston area were reduced by 6,798 tons between 2002 and 2004. 
Also, NOX emissions from non-EGU sources in the Charleston 
area were reduced by 806 tons between 2003 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.
    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 39858 (June 
29, 2004), the heavy duty engine and vehicle standards, 66 FR 5002 
(January 18, 2001) and the new Tier 2 tailpipe standards for 
automobiles, 65 FR 6698 (January 10, 2000), are also expected to 
greatly reduce emissions throughout the country and thereby reduce 
emissions impacting the Charleston area monitor. The Tier 2 standards 
came into effect in 2004, and by 2030, EPA expects that the new Tier 2 
standards will reduce NOX emissions by about 74 percent 
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. The Charleston Area Has a Fully Approved Maintenance Plan Pursuant 
to Section 175A of the CAA
    In conjunction with its request to redesignate the Charleston area 
to attainment status, West Virginia submitted a SIP revision to provide 
for maintenance of the 8-hour ozone NAAQS in the area for at least 12 
years after redesignation. West Virginia is requesting that EPA approve 
this SIP revision as meeting the requirement of CAA 175A(b) and replace 
the 1-hour ozone maintenance plan update requirement.
    Under 40 CFR 51.905(e), the EPA may approve a SIP revision 
requesting the removal of the obligation to implement contingency 
measures upon a violation of the 1-hour ozone NAAQS when the State 
submits and EPA approves an attainment demonstration for the 8-hour 
ozone NAAQS for an area initially designated nonattainment for the 8-
hour NAAQS or a maintenance SIP for the 8-hour NAAQS for an area 
initially designated attainment for the 8-hour NAAQS.
    The rationale behind 40 CFR 51.905(e) is to ensure that the area 
maintains the applicable ozone standard (the 8-hour standard in areas 
where the 1-hour standard has been revoked). EPA believes this 
rationale analogously applies to areas that were not initially 
designated, but are redesignated as attainment with the 8-hour ozone 
NAAQS. Therefore, EPA intends to treat redesignated areas as though 
they had been initially designated attainment of the 8-hour ozone 
NAAQS, and accordingly proposes to relieve the Charleston area of its 
maintenance plan obligations with respect to the 1-hour standard. Once 
approved, the maintenance plan for the 8-hour ozone NAAQS will ensure 
that the SIP for the Charleston area 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 (12 years in 
Charleston's case). 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 Charleston Area 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 the 
Charleston area since it is a reasonable year within the 3-year block 
of 2002-2004 and accounts for reductions attributable to implementation 
of the CAA requirements to date.
    The WVDEP prepared comprehensive VOC and NOX emissions 
inventories for the Charleston area, 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 purchased from a vendor, Pacific Environmental 
Services. 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. For the 2002 inventory, diskettes were populated 
with i-STEPS software information, as well as source-specific data from 
the previous year and sent to facilities for updates of their 2002 
activity and emissions data. The facilities then sent the diskettes 
back to the State and, where WVDEP staff quality assured the data and 
submitted it to EPA's Central

[[Page 26306]]

Data Exchange (CDX) site as well as to contractors for the Visibility 
Improvement State and Tribal Association of the Southeast (VISTAS), a 
Regional Planning Organization (RPO).
    WVDEP used the VISTAS revised 2002 base year point source inventory 
including both EGUs and non-EGUs. The WVDEP took VISTAS data and 
calculated the emissions for the EGUs and non-EGUs for a typical summer 
weekday for peak ozone season (June thru August).
    (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 highway emissions budgets. This applies 
to the maintenance plan submitted by WVDEP on November 30, 2005. 
Therefore, the WVDEP has consulted with the Charleston MPO, and the 
Regional Intergovernmental Council (RIC). The RIC provided base year 
and projection emissions data consistent with their most recent 
available Travel Demand Model (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 the RIC, to 
develop highway emissions budgets for VOC and NOX. The RIC 
must evaluate future Long Range Transportation Plans and Transportation 
Improvement Programs to ensure that the associated emissions are equal 
to or less than 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 an 
actual decrease in highway emissions occurred between 2002 and 2004.
    (iv) Mobile non-road emissions--Mobile non-road emissions were 
calculated in the same manner as the area source emissions.
    The 2004 attainment year VOC and NOX emissions for the 
Charleston area are summarized along with the 2009 and 2018 projected 
emissions for this area in tables 4 and 5, which cover 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 this area.
    (b) Maintenance Demonstration--On November 30, 2005, the WVDEP 
submitted a SIP revision to supplement its November 30, 2005 
redesignation request. The submittal by WVDEP consists of the 
maintenance plan as required by section 175A of the CAA. The Charleston 
area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating 
that current and future emissions of VOC and NOX remain at 
or below the attainment year 2004 emissions levels throughout the 
Charleston area through the year 2018. The Charleston area maintenance 
demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 
426 (6th Cir. 2001); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). 
See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25430-32 
(May 12, 2003).
    Tables 4 and 5 specify the VOC and NOX emissions for the 
Charleston area for 2004, 2009, and 2018. The WVDEP 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.--Total VOC Emissions for 2004-2018
                                  [tpd]
------------------------------------------------------------------------
                                     2004 VOC
         Source category            emissions     2009 VOC     2018 VOC
                                       \1\       emissions    emissions
------------------------------------------------------------------------
Mobile...........................         13.4         11.6          7.2
Nonroad..........................          5.3          4.6          3.5
Area.............................         20.9         20.1         22.1
Point \2\........................         10.0         10.4         12.2
                                  --------------------------------------
    Total........................         49.6         46.7        45.0
------------------------------------------------------------------------
\1\ 2004 Emissions estimated by linear interpolation for all sectors
  except highway and EGUs.
\2\ Non-EGU emissions updated for 2008 NOX SIP Call.


                 Table 5.--Total NOX Emissions 2004-2018
                                  [tpd]
------------------------------------------------------------------------
                                     2004 NOX
         Source category            emissions     2009 NOX     2018 NOX
                                       \1\       emissions    emissions
------------------------------------------------------------------------
Mobile...........................         22.0         19.8          8.2
Nonroad..........................         12.7         12.0         10.1
Area.............................          2.5          2.6          2.9
Point \2\........................         87.8         67.9         59.4
                                  --------------------------------------
    Total........................        125.0        102.3        80.6
------------------------------------------------------------------------
\1\ 2004 Emissions estimated by linear interpolation for all sectors
  except highway and EGUs.
\2\ Non-EGU emissions updated for 2008 NOX SIP Call.


[[Page 26307]]

    Additionally, the following mobile programs are either effective or 
due to become effective and will further contribute to the maintenance 
demonstration of the 8-hour ozone NAAQS:
     Heavy duty diesel on-road (2004/2007) and low-sulfur on-
road (2006); 66 FR 2001 (January 18, 2001); and
     Non-road emissions standards (2008) and off-road diesel 
fuel (2007/2010); 69 FR 39858 (June 29, 2004).
    In addition to the permanent and enforceable measures, the Clean 
Air Interstate Rule (CAIR), promulgated May 12, 2005, (70 FR 25161) 
should have positive impacts on the State's air quality. CAIR, which 
will be implemented in the eastern portion of the country in two phases 
(2009 and 2015) should reduce long range transport of ozone precursors, 
which will have a beneficial effect on the air quality in the 
Charleston area.
    Currently, the State is in the process of adopting rules to address 
CAIR through state rules 45CSR3, 45CSR40, and 45CSR41, which require 
annual and ozone season NOX reductions from EGUs and ozone 
season NOX reductions from non-EGUs. These rules will be 
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 Charleston area.
    (c) Monitoring Network--There is currently one monitor measuring 
ozone in the Charleston area. 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 Tier2/Low Sulfur Gasoline Rule, 2007 On-Road 
Diesel Engine Rule, and Federal Non-road Engine/Equipment Rules will 
continue to be implemented on a national level. These programs help 
provide the reductions necessary for the Charleston area to maintain 
attainment.
    In addition to maintaining the key elements of its regulatory 
program, the State 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 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 non-point 
NEI. 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 West Virginia Department of 
Transportation (WVDOT) for the subject year and calculating emissions 
using the latest approved MOBILE model. Alternatively, the highway 
emissions may be obtained in consultation with the MPO, the RIC, using 
methodology similar to that used for Transportation Conformity 
purposes.
    (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 the Charleston area to stay in compliance with the 
8-hour ozone standard after redesignation depends upon VOC and 
NOX emissions in the area remaining at or below 2004 levels. 
The 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 emissions growth in 
excess of 10 percent of the 2002 base-year inventory or if a monitored 
air quality exceedance pattern indicates that an ozone NAAQS violation 
may be imminent--The maintenance plan states that an exceedance pattern 
would include, but is not limited to, the measurement of three 
exceendances or more occurring at the same monitor during a calendar 
year. The plan also states that comprehensive tracking inventories will 
also be developed every 3 years using current EPA-approved methods to 
assure that its growth projections relative to emissions in the area 
are sufficiently accurate to assure ongoing attainment with the NAAQS. 
If the 2002 base-year inventory or a monitored air quality exceedance 
pattern occurs, the following measure will be implemented:
     WVDEP will evaluate existing control measures to ascertain 
if additional regulatory revisions are necessary to maintain the ozone 
standard.
    (ii) In the event that a violation of the 8-hour ozone standard 
occurs at the Kanawha County/Charleston monitor--The maintenance plan 
states that in the event that a violation of the ozone standard occurs 
at the Charleston monitor, the State of West Virginia, in consultation 
with EPA Region III, will implement 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

[[Page 26308]]

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 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 the area by the start of the following ozone season.
    (f) An Additional Provision of the Maintenance Plan--The State's 
maintenance plan for the Charleston area 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 would 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. West Virginia regulation 45CSR29 requires significant point 
source emitters in six counties, including Kanawha and Putnam, to 
submit annual emission statements which contain emission totals for 
VOCs and NOX. 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 the Charleston area meets the 
requirements of section 175A of the Act.

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

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

    Under the CAA, States are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs) 
and maintenance plans identify and establish MVEBs for certain criteria 
pollutants and/or their precursors to address pollution from on-road 
mobile sources. In the maintenance plan the MVEBs are termed ``on-road 
mobile source emissions budgets.'' Pursuant to 40 CFR part 93 and 
51.112, MVEBs must be established in an ozone maintenance plan. A MVEB 
is the portion of the total allowable emissions that is allocated to 
highway and transit vehicle use and emissions. A MVEB serves as a 
ceiling on emissions from an area's planned transportation system. The 
MVEB concept is further explained in the preamble to the November 24, 
1993, transportation conformity rule (58 FR 62188). The preamble also 
describes how to establish and revise the MVEBs in control strategy 
SIPs and maintenance plans.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
or reasonable progress towards the national ambient air quality 
standards. If a transportation plan does not ``conform,'' most new 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a state implementation plan.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEB budget 
contained therein ``adequate'' for use in determining transportation 
conformity. After EPA affirmatively finds the submitted MVEB is 
adequate for transportation conformity purposes, that MVEB can be used 
by state and federal agencies in determining whether proposed 
transportation projects ``conform'' to the state implementation plan as 
required by section 176(c) of the CAA. EPA's substantive criteria for 
determining ``adequacy'' of a MVEB are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic 
steps: public notification of a SIP submission, a public comment 
period, and EPA's adequacy finding. This process for determining the 
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 
1999 guidance, ``Conformity Guidance on Implementation of March 2, 
1999, Conformity Court Decision.'' This guidance was finalized in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards and 
Miscellaneous Revisions for Existing Areas; Transportation Conformity 
Rule Amendments--Response to Court Decision and Additional Rule 
Change'' on July 1, 2004 (69 FR 40004). EPA follows this guidance and 
rulemaking in making its adequacy determinations.
    The MVEBs for the Charleston area 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. 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: The Charleston area 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 the Charleston area. The 
total emissions from point, area, mobile on-road, and mobile non-road 
sources in 2004 equaled 49.6 tpd of VOC and 125 tpd of NOX. 
The WVDEP projected emissions out to the year 2018 and projected a 
total of 45 tpd of VOC and 80.6 tpd of NOX from all sources 
in the

[[Page 26309]]

Charleston area. The safety margin for the Charleston area for 2018 
would be the difference between these amounts, or 4.6 tpd of VOC and 
44.4 tpd of NOX. The emissions up to the level of the 
attainment year including the safety margins are projected to maintain 
the area's air quality consistent with the 8-hour ozone NAAQS. The 
safety margin is the extra emissions reduction below the attainment 
levels that can be allocated for emissions by various sources as long 
as the total emission levels are maintained at or below the attainment 
levels. Table 6 shows the safety margins for the 2009 and 2018 years.

     Table 6.--2009 and 2018 Safety Margins for the Charleston Area
------------------------------------------------------------------------
                                         VOC emissions    NOX emissions
            Inventory year                   (tpd)            (tpd)
------------------------------------------------------------------------
2004 Attainment.......................             49.6            125
2009 Interim..........................             46.7            102.3
2009 Safety Margin....................              2.9             22.7
2004 Attainment.......................             49.6            125
2018 Final............................             45               80.6
2018 Safety Margin....................              4.6             44.4
------------------------------------------------------------------------

    The WVDEP allocated 3.3 tpd NOX and 1.9 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 VADEQ allocated 1.4 tpd NOX and 1.2 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 7 shows the final 2009 and 2018 MVEBS for the 
Charleston area.

       Table 7.--2009 and 2018 Final MVEBs for the Charleston Area
------------------------------------------------------------------------
                                           VOC emissions   NOX emissions
             Inventory year                    (tpd)           (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source                9.7            16.5
 projected emissions....................
2009 Safety Margin Allocated to MVEBs...            1.9             3.3
2009 MVEBs..............................           11.6            19.8
2018 projected on-road mobile source                6.0             6.8
 projected emissions....................
2018 Safety Margin Allocated to MVEBs...            1.2             1.4
2018 MVEBs..............................            7.20            8.20
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2004, 2009 and 2018 MVEBs for the Charleston area are 
approvable because the MVEBs for NOX and VOC, including the 
allocated safety margins, continue to maintain the total emissions at 
or below the attainment year inventory levels as required by the 
transportation conformity regulations.

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

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

then look for ``Adequacy Review of SIP Submissions for Conformity'').

VIII. Proposed Actions

    EPA is proposing to determine that the Charleston area has attained 
the 8-hour ozone NAAQS. The EPA is also proposing to approve the State 
of West Virginia's November 30, 2005 request for the Charleston area to 
be designated to attainment of the 8-hour NAAQS for ozone because the 
requirements for approval have been satisfied. 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 the area has attained the 8-hour ozone standard. The 
final approval of this redesignation request would change the 
designation of the Charleston area from nonattainment to attainment for 
the 8-hour ozone standard. EPA is also proposing to approve the 
associated maintenance plan for this area, submitted on November 30, 
2005, as a revision to the West Virginia SIP. EPA is proposing to 
approve the maintenance plan for the area 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 the area in conjunction with its redesignation request. EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

[[Page 26310]]

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 to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Redesignation is an 
action that affects the status of a geographical area and does not 
impose any new requirements on sources. Thus, the requirements of 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
proposed rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule proposing to approve the redesignation of the SNP area to 
attainment for the 8-hour ozone NAAQS, the associated maintenance plan, 
and the MVEBs identified in the maintenance plan, does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    This rule proposing to approve the redesignation of the Charleston 
area to attainment for the 8-hour ozone NAAQS, the associated 
maintenance plan, and the MVEBs identified in the maintenance plan, 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution control, National Parks, Wilderness Areas.

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

    Dated: April 24, 2006.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E6-6754 Filed 5-3-06; 8:45 am]

BILLING CODE 6560-50-P
