  SEQ CHAPTER \h \r 1 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

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

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

AGENCY:  Environmental Protection Agency (EPA).   				

									

ACTION:  Proposed rule.       

						

SUMMARY:   EPA is proposing to approve a redesignation request and a
State Implementation Plan (SIP) revision for the West Virginia portion
of the Wheeling, WV-OH interstate area (herein referred to as the
“Area”) from nonattainment to attainment of the 8-hour ozone
National Ambient Air Quality Standard (NAAQS).  The West Virginia
Department of Environmental Protection (WVDEP) is requesting that the
Marshall and Ohio County, West Virginia (Wheeling) portion of the area
be redesignated as attainment for the 8-hour ozone NAAQS.  The
interstate 8-hour ozone nonattainment area is comprised of three
counties (Marshall and Ohio Counties, West Virginia (Wheeling) and
Belmont County, Ohio (Belmont)).  EPA is proposing to approve the ozone
redesignation request for the Wheeling portion of the area.  In
conjunction with its redesignation request, the WVDEP submitted a SIP
revision consisting of a maintenance plan for Wheeling that provides for
continued attainment of the 8-hour ozone NAAQS for the next 12 years. 
EPA is proposing to make a determination that Wheeling has attained the
8-hour ozone NAAQS based upon three years of complete, quality-assured
ambient air quality ozone monitoring data for 2002-2004.  EPA’s
proposed approval of the 8-hour ozone redesignation request is based on
its determination that Wheeling has met the criteria for redesignation
to attainment specified in the Clean Air Act (CAA).  EPA is providing
information on the status of its adequacy determination for the motor
vehicle emission budgets (MVEBs) that are identified in the Wheeling
maintenance plan for purposes of transportation conformity, and is also
proposing to approve those MVEBs.  EPA is proposing approval of the
redesignation request and of the maintenance plan revision to the West
Virginia SIP in accordance with the requirements of the CAA.

DATES:  Written comments must be received on or before [insert date 30
days from date of publication].  

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2006-0682 by one of the following methods:

A.  	Federal eRulemaking Portal:      HYPERLINK
"http://www.regulations.gov"  www.regulations.gov .  Follow the on-line
instructions for submitting comments.

B.	E-mail:   HYPERLINK "mailto:morris.makeba@epa.gov" 
morris.makeba@epa.gov 

C.  	Mail:  EPA-R03-OAR-2006-0682, Makeba Morris, Chief, Air Quality
Planning Branch, D. 	Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103.

Hand Delivery: At the previously-listed EPA Region III address.  Such
deliveries are 

only accepted during the Docket’s normal hours of operation, and
special arrangements should be made for deliveries of boxed information.

Instructions:  Direct your comments to Docket ID No.
EPA-R03-OAR-2006-0682.  EPA's policy is that all comments received will
be included in the public docket without change, and may be made
available online at    HYPERLINK "http://www.epa.gov/edocket"  
http://www.epa.gov/edocket      HYPERLINK "http://www.regulations.gov" 
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
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HYPERLINK "http://www.regulations.gov"  www.regulations.gov  website is
an “anonymous access” system, which means EPA will not know your
identity or contact information unless you provide it in the body of
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going through     HYPERLINK "http://www.regulations.gov" 
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
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Docket:  All documents in the electronic docket are listed in the    
HYPERLINK "http://www.regulations.gov"  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     HYPERLINK "http://www.regulations.gov" 
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 Wheeling Maintenance Plan Adequate and Approvable?

VIII.  	Proposed Actions

Statutory and Executive Order Reviews

									

I.  What Actions are EPA Proposing to Take?

On July 24, 2006, WVDEP formally submitted a request to redesignate
Wheeling from nonattainment to attainment of the 8-hour NAAQS for ozone.
 On July 24, 2006, West Virginia submitted a maintenance plan for
Wheeling as a SIP revision, to ensure continued attainment over the next
12 years.  Wheeling is comprised of Marshall and Ohio Counties. 
Wheeling is currently designated as a basic 8-hour ozone nonattainment
area.  EPA is proposing to determine that Wheeling has attained the
8-hour ozone NAAQS and that it has met the requirements for
redesignation pursuant to section 107(d)(3)(E) of the CAA.  EPA is,
therefore, proposing to approve the redesignation request to change the
designation of Wheeling from nonattainment to attainment for the 8-hour
ozone NAAQS.  EPA is also proposing to approve the maintenance plan SIP
revision for Wheeling, such approval being one of the CAA requirements
for approval of a redesignation request.  The maintenance plan is
designed to ensure continued attainment throughout Wheeling for the next
12 years.  Additionally, EPA is announcing its action on the adequacy
process for the MVEBs identified in the Wheeling maintenance plan, and
proposing to approve the MVEBs identified for volatile organic compounds
(VOC) and nitrogen oxides (NOx) for transportation conformity purposes. 
These MVEBs are state MVEBs for the West Virginia portion of the Area. 
In a separate redesignation request, the State of Ohio is establishing
MVEBs and requesting redesignation to attainment for the remainder of
the Area (i.e., Belmont County).  									

II. What is the Background for These Proposed Actions?

A.  General

Ground-level ozone is not emitted directly by sources.  Rather,
emissions of NOx and VOC react in the presence of sunlight to form
ground-level ozone.  The air pollutants NOx and VOC are referred to as
precursors of ozone.  The CAA establishes a process for air quality
management through the attainment and maintenance of the NAAQS.

On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of
0.08 parts per million (ppm).  This new standard is more stringent than
the previous 1-hour ozone standard.  EPA designated as nonattainment any
area violating the 8-hour ozone NAAQS based on the air quality data for
the three years of 2001-2003.  These were the most recent three years of
data at the time EPA designated 8-hour areas.  The Area was designated
as basic 8-hour ozone nonattainment status in a Federal Register notice
signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857). 
On June 15, 2005 (69 FR at 23996), the 1-hour ozone NAAQS was revoked in
the Area (as well as most other areas of the country).  See 40 CFR
50.9(b); 69 FR at 23996 (April 30, 2004); and see 70 FR 44470 (August 3,
2005).  

The CAA, Title I, Part D, contains two sets of provisions – subpart 1
and subpart 2– that address planning and control requirements for
nonattainment areas.  Subpart 1 (which EPA refers to as “basic”
nonattainment) contains general, less prescriptive requirements for
nonattainment areas for any pollutant – including ozone – governed
by a NAAQS.  Subpart 2 (which EPA refers to as “classified”
nonattainment) provides more specific requirements for ozone
nonattainment areas.  Some 8-hour ozone nonattainment areas are subject
only to the provisions of subpart 1.  Other areas are also subject to
the provisions of subpart 2.  Under EPA’s 8-hour ozone implementation
rule, signed on April 15, 2004, an area was classified under subpart 2
based on its 8-hour ozone design value (i.e., the 3-year average annual
fourth-highest daily maximum 8-hour average ozone concentration), if it
had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour
design value in the CAA for subpart 2 requirements).  All other areas
are covered under subpart 1, based upon their 8-hour design values.  In
2004, the Area was designated a basic 8-hour ozone nonattainment area
based upon air quality monitoring data from 2001-2003, and is subject to
the requirements of subpart 1.  	

            

Under 40 CFR part 50, the 8-hour ozone standard is attained when the
3-year average of the annual fourth-highest daily maximum 8-hour average
ambient air quality ozone concentrations is less than or equal to 0.08
ppm (i.e., 0.084 ppm when rounding is considered).  See 69 FR 23857
(April 30, 2004) for further information.  Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements.  The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50.  The ozone
monitoring data indicates that the area has a design value of 0.078 ppm
for the 3-year period of 2002-2004 and a design value of design value of
0.076 ppm for the 3-year period of 2003-2005.  Therefore, the ambient
ozone data for the area indicates no violations of the 8-hour ozone
standard.  Final monitoring data for 2005 indicates continued attainment
of the 8-hour ozone standard in the area.  

B.  The Wheeling, WV-OH Area 

The Area consists of Marshall and Ohio Counties, West Virginia and
Belmont County, Ohio.  Prior to its designation as an 8-hour ozone
nonattainment area, the Area was an attainment/unclassifiable area for
the 1-hour ozone nonattainment NAAQS.  See 56 FR 56694 (November 6,
1991). 

On July 24, 2006, the WVDEP requested that Wheeling be redesignated to
attainment for the 8-hour ozone standard.  The redesignation request
included 3 years of complete, quality-assured data for the period of
2002-2004, indicating that the 8-hour NAAQS for ozone had been achieved
in the Area.  The data satisfies the CAA requirements when the 3-year
average of the annual fourth-highest daily maximum 8-hour average ozone
concentration (commonly referred to as the area’s design value) is
less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is
considered).  Under the CAA, a nonattainment area may be redesignated if
sufficient complete, quality-assured data is available to determine that
the area has attained the standard and the area meets the other CAA
redesignation requirements set forth in section 107(d)(3)(E).

III. What are the Criteria for Redesignation to Attainment?

The CAA provides the requirements for redesignating a nonattainment area
to attainment.  Specifically, section 107(d)(3)(E) of the CAA, allows
for redesignation, providing that:

(1) EPA determines that the area has attained the applicable NAAQS; 

(2) EPA has fully approved the applicable implementation plan for the
area under section 110(k); (3) EPA determines that the improvement in
air quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable SIP and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions; 

(4) EPA has fully approved a maintenance plan for the area as meeting
the requirements of section 175A; and 

(5) The state containing such area has met all requirements applicable
to the area under section 110 and Part D.

EPA provided guidance on redesignation in the General Preamble for the
Implementation of Title I of the CAA Amendments of 1990, on April 16,
1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57
FR 18070).  EPA has provided further guidance on processing
redesignation requests in the following documents:

“Ozone and Carbon Monoxide Design Value Calculations”, Memorandum
from Bill   Laxton, June 18, 1990;

“Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, April 30, 1992;

“Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,” Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;

“Procedures for Processing Requests to Redesignate Areas to
Attainment,” Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;

“State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (Act) Deadlines,” Memorandum from John Calcagni
Director, Air Quality Management Division, October 28, 1992;

“Technical Support Documents (TSD’s) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G.T. Helms,
Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993; 		

“State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After
November 15, 1992,” Memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, September 17, 1993;

Memorandum from D. Kent Berry, Acting Director, Air Quality Management
Division, to Air Division Directors, Regions 1-10, “Use of Actual
Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment
Areas,” dated November 30, 1993; 

“Part D New Source Review (Part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,” Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and 

“Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,” Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, May 10, 1995. 

IV. Why Is EPA Taking These Actions?

On July 24, 2006, the WVDEP requested redesignation of Wheeling to
attainment for the 8-hour ozone standard.  On July 24, 2006, the WVDEP
submitted a maintenance plan for Wheeling as a SIP revision, to assure
continued attainment over the next 12 years, until 2018.  EPA has
determined that Wheeling has attained the standard and has met the
requirements for redesignation set forth in section 107(d)(3)(E).  

V. What Would be the Effect of These Actions?

Approval of the redesignation request would change the designation of
Wheeling from nonattainment to attainment for the 8-hour ozone NAAQS
found at 40 CFR part 81.  It would also incorporate into the West
Virginia SIP a maintenance plan ensuring continued attainment of the
8-hour ozone NAAQS in Wheeling for the next 12 years, until 2018.  The
maintenance plan includes contingency measures to remedy any future
violations of the 8-hour NAAQS (should they occur), and identifies MVEBs
for NOx and VOC for transportation conformity purposes for the years
2004, 2009 and 2018.  These motor vehicle emissions (2004) and MVEBs
(2009 and 2018) are displayed in the following table:   

Table 1: Motor Vehicle Emissions Budgets in Tons per Day (tpd)

Year	NOx	VOC

2004	4.7	2.8

2009	4.3	2.5

2018	1.7	1.4



VI. What is EPA’s Analysis of the State’s Request?   

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

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

EPA is proposing to determine that the Area has attained the 8-hour
ozone NAAQS.  For ozone, an area may be considered to be attaining the
8-hour ozone NAAQS if there are no violations, as determined in
accordance with 40 CFR 50.10 and Appendix I of part 50, based on three
complete, consecutive calendar years of quality-assured air quality
monitoring data.  To attain this standard, the 3-year average of the
fourth-highest daily maximum 8-hour average ozone concentrations
measured at each monitor, within the area, over each year must not
exceed the ozone standard of 0.08 ppm.  Based on the rounding convention
described in 40 CFR part 50, Appendix I, the standard is attained if the
design value is 0.084 ppm or below.  The data must be collected and
quality-assured in accordance with 40 CFR part 58, and recorded in the
Air Quality System (AQS).  The monitors generally should have remained
at the same location for the duration of the monitoring period required
for demonstrating attainment. 

In the area there is one ozone monitor, located in Ohio County, West
Virginia that measures air quality with respect to ozone.  As part of
its redesignation request, West Virginia submitted ozone monitoring data
for the years 2000-2005 for the area.  This data has been quality
assured and is recorded in AQS.  The fourth high 8-hour daily maximum
concentrations, along with the three-year averages, are summarized in
Table 2.  

Table 2:  Wheeling, WV-OH Fourth Highest 8-hour Average Values; Ohio
County Monitor, AQS ID 54-069-0007

Year	Annual 4th High Reading (ppm)

2000	0.071

2001	0.088

2002	0.097

2003	0.076

2004	0.063

2005	0.089

The average for the 3-year period 2002 through 2004 is 0.078 ppm

The average for the 3-year period 2003 through 2005 is 0.076 ppm



The air quality data for 2002-2004 show that the entire area has
attained the standard with a design value of 0.078 ppm.  Also, the air
quality data for 2003-2005 show that the entire area is still attaining
the 8-hour standard with a design value of 0.076 ppm.  The data
collected at the Ohio County monitor satisfies the CAA requirement that
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ozone concentration is less than or equal to 0.08 ppm.  The
WVDEP’s request for redesignation for Wheeling indicates that the data
was quality assured in accordance with 40 CFR part 58.  The WVDEP uses
AQS as the permanent database to maintain its data and quality assures
the data transfers and content for accuracy.  In addition, as discussed
below with respect to the maintenance plan, WVDEP has committed to
continue monitoring in accordance with 40 CFR part 58.  In summary, EPA
has determined that the data submitted by West Virginia and data taken
from AQS indicates that the area has attained the 8-hour ozone NAAQS. 

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

EPA has determined that Wheeling has met all SIP requirements applicable
for purposes of redesignation under section 110 of the CAA (General SIP
Requirements) and that it meets all applicable SIP requirements under
Part D of Title I of the CAA, in accordance with section
107(d)(3)(E)(v).  In addition, EPA has determined that the SIP is fully
approved with respect to all requirements applicable for purposes of
redesignation in accordance with section 107(d)(3)(E)(ii).  In making
these proposed determinations, EPA ascertained what requirements are
applicable to Wheeling, and determined that the applicable portions of
the SIP meeting these requirements are fully approved under section
110(k) of the CAA.  We note that SIPs must be fully approved only with
respect to applicable requirements.  

The September 4, 1992 Calcagni memorandum (“Procedures for Processing
Requests to Redesignate Areas to Attainment,” Memorandum from John
Calcagni, Director, Air Quality Management Division, September 4, 1992)
describes EPA’s interpretation of section 107(d)(3)(E) with respect to
the timing of applicable requirements.  Under this interpretation, to
qualify for redesignation, states requesting redesignation to attainment
must meet only the relevant CAA requirements that came due prior to the
submittal of a complete redesignation request.  See also Michael Shapiro
memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7,
1995) (redesignation of Detroit-Ann Arbor).  Applicable requirements of
the CAA that come due subsequent to the submittal of a complete
redesignation request for an area remain applicable until a
redesignation is approved, but are not required as a prerequisite to
redesignation.  Section 175A(c) of the CAA.  Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004).  See also 68 FR 25424, 25427 (May 12, 2003)
(redesignation of St. Louis).

1.  Section 110 General SIP Requirements:

Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 110(a)(2)
include, but are not limited to, the following:

Submittal of a SIP that has been adopted by the state after reasonable
public notice and hearing; 

Provisions for establishment and operation of appropriate procedures
needed to monitor ambient air quality; 

Implementation of a source permit program; provisions for the
implementation of Part C requirement (Prevention of Significant
Deterioration (PSD)); 

Provisions for the implementation of Part D requirements for New Source
Review (NSR) permit programs; 

Provisions for air pollution modeling; and 

Provisions for public and local agency participation in planning and
emission control rule development.       

Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state.  To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants in accordance with the NOx SIP Call, October 27, 1998 (63
FR 57356), amendments to the NOx SIP Call, May 14, 1999 (64 FR 26298)
and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule
(CAIR), May 12, 2005 (70 FR 25161).  However, the section 110(a)(2)(D)
requirements for a state are not linked with a particular nonattainment
area’s designation and classification in that state.  EPA believes
that the requirements linked with a particular nonattainment area’s
designation and classifications are the relevant measures to evaluate in
reviewing a redesignation request.  The transport SIP submittal
requirements, where applicable, continue to apply to a state regardless
of the designation of any one particular area in the state.

Thus, we do not believe that these requirements should be construed to
be applicable requirements for purposes of redesignation.  In addition,
EPA believes that the other section 110 elements not connected with
nonattainment plan submissions and not linked with an area’s
attainment status are not applicable requirements for purposes of
redesignation.  West Virginia and Ohio will still be subject to these
requirements after the Area is redesignated.  The section 110 and Part D
requirements, which are linked with a particular area’s designation
and classification, are the relevant measures to evaluate in reviewing a
redesignation request.  This policy is consistent with EPA’s existing
policy on applicability of conformity (i.e., for redesignations) and
oxygenated fuels requirement.  See Reading, Pennsylvania, proposed and
final rulemakings 61 FR 53174-53176 (October 10, 1996), 62 FR 24816 (May
7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking 61 FR 20458
(May 7, 1996); and Tampa, Florida, final rulemaking 60 FR 62748
(December 7, 1995).  See also the discussion on this issue in the
Cincinnati redesignation 65 FR 37890 (June 19, 2000), and in the
Pittsburgh redesignation 66 FR 53090 (October 19, 2001).  Similarly,
with respect to the NOx SIP Call rules, EPA noted in its Phase 1 Final
Rule to Implement the 8-hour Ozone NAAQS, that the NOx SIP Call rules
are not “an ‘applicable requirement’ for purposes of section
110(l) because the NOx rules apply regardless of an area’s attainment
or nonattainment status for the 8-hour NAAQS.” 69 FR 23951, 23983
(April 30, 2004).  

EPA believes that section 110 elements not linked to the area’s
nonattainment status are not applicable for purposes of redesignation. 
Any section 110 requirements that are linked to the Part D requirements
for 8-hour ozone nonattainment areas are not yet due, because, as we
explain later in this notice, no Part D requirements applicable for
purposes of redesignation under the 8-hour standard became due prior to
submission of the redesignation request.  

Because the West Virginia’s SIP satisfies all of the applicable
general SIP elements and requirements set forth in section 110(a)(2),
EPA concludes that West Virginia has satisfied the criterion of section
107(d)(3)(E) regarding section 110 of the Act.

2.  Part D Nonattainment Area Requirements Under the 8-Hour Standard

The Area was designated a basic nonattainment area for the 8-hour ozone
standard.  Sections 172-176 of the CAA, found in subpart 1 of Part D,
set forth the basic nonattainment requirements for all nonattainment
areas.  As discussed previously, the Area was designated
attainment/unclassifiable for the 1-hour standard, therefore, there are
no outstanding Part D submittals under the 1-hour standard for the Area.

Section 182 of the CAA, found in subpart 2 of Part D, establishes
additional specific requirements depending on the area’s nonattainment
classification.  The Area was classified as a subpart 1 nonattainment
area; therefore, no subpart 2 requirements apply to this area.

With respect to the 8-hour standard, EPA proposes to determine that West
Virginia’s SIP meets all applicable SIP requirements under Part D of
the CAA, because no 8-hour ozone standard Part D requirements applicable
for purposes of redesignation became due prior to submission of
Wheeling’s redesignation request.  Because the State submitted a
complete redesignation request for Wheeling prior to the deadline for
any submissions required under the 8-hour standard, we have determined
that the Part D requirements do not apply to Wheeling for the purposes
of redesignation. 

In addition to the fact that Part D requirements applicable for purposes
of redesignation did not become due prior to submission of the
redesignation request, EPA believes it is reasonable to interpret the
general conformity and NSR requirements as not requiring approval prior
to redesignation.  

With respect to section 176, Conformity Requirements, section 176(c) of
the CAA requires states to establish criteria and procedures to ensure
that Federally supported or funded projects conform to the air quality
planning goals in the applicable SIP.  The requirement to determine
conformity applies to transportation plans, programs, and projects
developed, funded or approved under Title 23 U.S.C. and the Federal
Transit Act (“transportation conformity”) as well as to all other
Federally supported or funded projects (“general conformity”). 
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required the EPA to promulgate.

EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) since state conformity rules
are still required after redesignation and federal conformity rules
apply where state rules have not been approved.  See Wall v. EPA, 265 F.
3d 426, 438-440 (6th Cir. 2001), upholding this interpretation.  See
also 60 FR 62748 (Dec. 7, 1995).

EPA has also determined that areas being redesignated need not comply
with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without Part D NSR in effect, because PSD requirements will
apply after redesignation.  The rationale for this view is described in
a memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled, “Part D NSR Requirements
or Areas Requesting Redesignation to Attainment.”  West Virginia has
demonstrated that the area will be able to maintain the standard without
Part D NSR in effect in Wheeling, and therefore, West Virginia need not
have a fully approved Part D NSR program prior to approval of the
redesignation request.  West Virginia’s SIP-approved PSD program will
become effective in Wheeling upon redesignation to attainment.  See
rulemakings for Detroit, MI (60 FR 12467-12468, March 7, 1995);
Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-70, May 7, 1996);
Louisville, KY (66 FR 53665, October 23, 2001); Grand Rapids, Michigan
(61 FR 31834-31837, June 21, 1996).  

3.  Wheeling has a fully approved SIP for the purposes of redesignation

EPA has fully approved the West Virginia SIP for the purposes of this
redesignation.  EPA may rely on prior SIP approvals in approving a
redesignation request.  Calcagni Memo, p. 3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action.  See 68 FR 25425
(May 12, 2003) and citations therein.  The Area was a 1-hour
attainment/unclassifiable area at the time of its designation as a basic
8-hour ozone nonattainment area on April 30, 2004.  Because the Area was
never designated as a Part D nonattainment area, there were no previous
Part D SIP submittal requirements for the Area.  Nor have any Part D
submittal requirements have come due prior to the submittal of the
8-hour maintenance plan for the area.  Therefore, all Part D submittal
requirements have been fulfilled.  Because there are no outstanding SIP
submission requirements applicable for the purposes of redesignation of
Wheeling, the applicable implementation plan satisfies all pertinent SIP
requirements.  As indicated previously, EPA believes that the section
110 elements not connected with Part D nonattainment plan submissions
and not linked to the area’s nonattainment status are not applicable
requirements for purposes of redesignation.  EPA also believes that no
8-hour Part D requirements applicable for purposes of redesignation have
yet become due for the Area, and therefore they need not be approved
into the SIP prior to redesignation.

4.  The Air Quality Improvement in the Wheeling, WV-OH Area Is Due to
Permanent and Enforceable Reductions in Emissions Resulting from
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Reductions

EPA believes that the States have demonstrated that the observed air
quality improvement in the Area is due to permanent and enforceable
reductions in emissions resulting from implementation of the SIP,
Federal measures, and other state-adopted measures.  Emissions
reductions attributable to these rules in the Area are shown in Table 3.
    

Table 3: Wheeling (Marshall and Ohio County, West Virginia) Total VOC
and NOx Emissions for 2002 and 2004 (tpd)*

Volatile Organic Compounds (VOC)

Year	Point	Area	Nonroad	Mobile	Total 

Year 2002	3.0	14.8	2.3	3.4	23.5

Year 2004	3.0	15.4	2.3	2.8	23.5

Diff. (02-04)	0	+0.6	0	-0.6	0

Nitrogen Oxides (NOx)

Year	Point	Area	Nonroad	Mobile	Total 

Year 2002	152.2	3.4	5.6	5.5	166.7

Year 2004	85.8	3.4	7.3	4.7	101.2

Diff. (02-04)	-66.4	0	+1.7	-0.8	-65.5

Belmont (Belmont County, Ohio) Total VOC and NOx Emissions for 2002 and
2004 (tpd)*

Volatile Organic Compounds (VOC)

Year	Point	Area 	Nonroad	Mobile	Total 

Year 2002	0.2	4.1	1.0	4.4	9.7

Year 2004	0.2	4.0	0.9	3.7	8.8

Diff. (02-04)	0	-0.1	-0.1	-0.8	-0.9

Nitrogen Oxides (NOx)

Year	Point	Area 	Nonroad	Mobile	Total 

Year 2002	31.8	0.3	3.0	7.4	42.5

Year 2004	28.7	0.3	2.9	6.3	38.2

Diff. (02-04)	-3.1	0	-0.1	-1.1	-4.3

* Emissions not exact, due to rounding



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

Programs Currently in Effect

(a)  National Low Emission Vehicle (NLEV);

(b)  Motor vehicle fleet turnover with new vehicles meeting the Tier 2
standards; and,

(c)  Clean Diesel Program.

West Virginia has demonstrated that the implementation of permanent
enforceable emissions controls have reduced local NOx emissions.  Also,
between 2002 and 2004, Belmont VOC emissions were reduced by 0.9 tpd and
NOx emissions were reduced by 4.3 tpd.  Therefore, the entire Area is
seeing a decrease in VOC and NOx emissions, due to permanent and
enforceable measures.    

Nearly all of the reductions in NOx are attributable to the
implementation of the NOx SIP Call.  West Virginia has indicated in its
submittal that the implementation of the NOx SIP Call, with its
mandatory reductions in NOx emissions from Electric Generating Units
(EGUs) and large industrial boilers (non-EGUs), reduced NOx emissions
throughout the Area.  NOx emissions from EGUs in Marshall and Ohio
Counties, West Virginia were reduced by 60.3 tpd between 2002 and 2004. 
NOx emissions from EGU’s in Belmont County, Ohio were reduced by 3.1
tpd between 2002 and 2004.  Also, NOx emissions from non-EGU sources in
Marshall and Ohio Counties, West Virginia were reduced by 6.1 tpd
between 2002 and 2004.  The WVDEP believes that the improvement in ozone
air quality from 2002 to 2004 was the result of identifiable, permanent
and enforceable reductions in ozone precursor emissions for the same
period.  

Additionally, WVDEP has identified, but not quantified, additional
reductions in VOC emissions that will be achieved as a co-benefit of the
reductions in the emission of hazardous air pollutants (HAPs) as a
result of implementation of EPA’s Maximum Achievable Control
Technology (MACT) standards. 

Other regulations, such as the non-road diesel, 69 FR 38958 (June 29,
2004), the heavy duty engine and vehicle standards, 66 FR 5002 (January
18, 2001) and the new Tier 2 tailpipe standards for automobiles, 65 FR
6698 (January 10, 2000), are also expected to greatly reduce emissions
throughout the country and thereby reduce emissions impacting the Ohio
County monitor.  The Tier 2 standards came into effect in 2004, and by
2030, EPA expects that the new Tier 2 standards will reduce NOx
emissions by about 74 percent nationally.  EPA believes that permanent
and enforceable emissions reductions are the cause of the long-term
improvement in ozone levels and are the cause of the Area achieving
attainment of the 8-hour ozone standard.   

5.  Wheeling has a fully approved maintenance plan pursuant to section
175A of the CAA	

In conjunction with its request to redesignate Wheeling to attainment
status, West Virginia submitted a SIP revision to provide for
maintenance of the 8-hour ozone NAAQS in Wheeling for at least 12 years
after redesignation.  West Virginia is requesting that EPA approve this
SIP revision as meeting the requirement of CAA 175A.  Once approved, the
maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for
Wheeling meets the requirements of the CAA regarding maintenance of the
applicable 8-hour ozone standard.	

What is required in a maintenance plan?				 

Section 175A of the CAA sets forth the elements of a maintenance plan
for areas seeking redesignation from nonattainment to attainment.  Under
section 175A, the plan must demonstrate continued attainment of the
applicable NAAQS for at least 10 years after approval of a redesignation
of an area to attainment.  Eight years after the redesignation, the
State must submit a revised maintenance plan demonstrating that
attainment will continue to be maintained for the next 10-year period
following the initial 10-year period.  To address the possibility of
future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation, as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations.  Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment.  The Calcagni memorandum dated September 4, 1992, provides
additional guidance on the content of a maintenance plan.  An ozone
maintenance plan should address the following provisions:  

(a) an attainment emissions inventory; 

(b) a maintenance demonstration; 

(c) a monitoring network; 

(d) verification of continued attainment; and 

(e) a contingency plan.   

Analysis of the Wheeling Maintenance Plan

(a)  Attainment Inventory - An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment.  An attainment year of 2004 was used for Wheeling
since it is a reasonable year within the 3-year block of 2002-2004 and
accounts for reductions attributable to implementation of the CAA
requirements to date.   

The WVDEP prepared comprehensive VOC and NOx emissions inventories for
Wheeling, including point, area, mobile on-road, and mobile non-road
sources for a base year of 2002.

   

To develop the NOx and VOC base year emissions inventories, WVDEP used
the following approaches and sources of data:

(i) Point source emissions - West Virginia maintains its point source
emissions inventory data on the i-STEPS database, which is commercial
software.  Facilities subject to emissions inventory reporting
requirements were those operating point sources subject to Title V
permitting requirements.  Affected sources were identified from the
WVDEP’s Regulation 30 database, which is maintained by the WVDEP’s
Title V Permitting Group.  

(ii) Area source emissions - In order to calculate the area source
emissions inventory the WVDEP took the annual values from the VISTAS
base year inventory and derived the typical ozone summer weekday, using
procedures outlined in the EPA’s Emissions Modeling Clearinghouse
(EMCH) Memorandum, “Temporal Allocation of Annual Emissions Using EMCH
Temporal Profiles, April 29, 2002.”  This enabled WVDEP to arrive at
the “typical” summer day emissions.  

					

(iii) On-road mobile source emissions - VISTAS developed 2002 on-road
mobile (highway) emissions inventory data based on vehicle miles
traveled (VMT) updates provided by WVDEP.  VISTAS also estimated future
emissions based upon expected growth for the future years 2009 and 2018.
 However, federal Transportation Conformity requirements dictate that
the WVDEP consult with the Metropolitan Planning Organization (MPO)
responsible for transportation planning in developing SIP revisions
which may establish MVEBs.  This applies to the maintenance plan
submitted by WVDEP on July 24, 2006.  Therefore, the WVDEP has consulted
with the Wheeling MPO, the Bel-O-Mar Regional Council (Bel-O-Mar), as
well as the West Virginia Department of Transportation (WVDOT) and the
Ohio Department of Transportation (ODOT), to develop state MVEBs for the
West Virginia portion of the nonattainment area.  The ODOT maintains the
Travel Damand Model (TDM) for the Bel-O-Mar area and provided base year
and projection emissions data consistent with their most recent
available TDM results along with EPA’s most recent emission factor
model, MOBILE6.2.  The WVDEP used these data to estimate highway
emissions and, in consultation with Bel-O-Mar and ODOT to develop
highway emissions budgets for VOC and NOx.  

Bel-O-Mar, WVDOT, and ODOT must evaluate future Long Range
Transportation Plans (LRTP) and Transportation Improvement Programs
(TIP) to ensure that the associated emissions are equal to or less then
the final emissions budgets.  The budgets are designed to facilitate a
positive conformity determination while ensuring overall maintenance of
the 8-hour NAAQS.  It should be noted that the MVEBs and budgets only
represent the Wheeling (Marshall and Ohio Counties) portion of the
nonattainment area.      

(iv) Mobile non-road emissions – Emissions for the 2002 inventory from
nonroad sources were estimated in two steps.  First, emissions for
nonroad source categories that are included in the NONROAD model were
developed.  Second, emissions from sources not included in the NONROAD
model were estimated.  

The 2002 mobile non-road emissions inventory was developed by WVDEP
staff using the NONROAD2005b Model.  NONROAD estimates fuel consumption
and emissions of total hydrocarbons, carbon monoxide, nitrogen oxides,
sulfur dioxide, and particulate matter for all nonroad mobile source
categories except for aircraft, locomotives, and commercial marine
vessels (CMV).  

The 2004 attainment year VOC and NOx emissions for the Area are
summarized along with the 2009 and 2018 projected emissions for this
area in table 4, which covers the demonstration of maintenance for this
area.  EPA has concluded that West Virginia has adequately derived and
documented the 2004 attainment year VOC and NOx emissions for the Area. 


(b)  Maintenance Demonstration - On July 24, 2006, the WVDEP submitted a
SIP revision to supplement its July 24, 2006 redesignation request.  The
submittal by WVDEP consists of the maintenance plan as required by
section 175A of the CAA.  The Wheeling plan shows maintenance of the
8-hour ozone NAAQS by demonstrating that current and future emissions of
VOC and NOx remain at or below the attainment year 2004 emissions levels
throughout Wheeling through the year 2018.  The Wheeling maintenance
demonstration need not be based on modeling.  See Wall v. EPA, 265 F.3d
426 (6th Cir. 2001); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). 
See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25430-32
(May 12, 2003).

Table 4 specifies the Area’s VOC and NOx emissions for 2004, 2009, and
2018.  The WVDEP and Ohio EPA chose 2009 as an interim year in the
12-year maintenance demonstration period to demonstrate that the VOC and
NOx emissions are not projected to increase above the 2004 attainment
level during the time of the 12-year maintenance period. 

Table 4:  Wheeling, WV-OH Nonattainment Area Summary of Emissions       
                                                                        
       (All emissions in tpd for an ozone season day) 

 	Emissions in tpd 

	2004	2009	2018

	WV1	OH2	Total	WV1	OH2	Total 	WV1	OH2	Total

Point 	NOx	85.8	28.7	114.5	61.7	21.1	82.8	26.2	19.0	45.2

	VOC	3.0	0.2	3.2	2.8	0.1	2.9	3.3	0.2	3.5

Area	NOx	3.4	0.3	3.7	1.8	0.4	2.2	2.0	0.4	2.4

	VOC	15.4	4.0	19.4	7.3	3.9	11.2	8.4	3.9	12.3

Nonroad3	NOx	7.3	2.9	10.2	5.2	2.5	7.7	4.6	1.9	6.5

	VOC	2.3	0.9	3.2	2.1	0.8	2.9	1.8	0.6	2.4

MVEBs4	NOx	4.7	6.3	11.0	4.3	4.7	9.0	1.7	1.9	3.6

	VOC	2.8	3.5	6.3	2.5	2.6	5.1	1.4	1.5	2.9

Total5	NOx	101.2	38.2	139.4	72.9	28.7	101.6	34.5	23.2	57.7

	VOC	23.5	8.6	32.2	14.7	7.4	22.1	14.9	6.2	21.1

1 WV emissions are total emissions for Ohio and Marshall Counties in
West Virginia

2 OH emissions are total emissions for Belmont County in Ohio, as
provided by Ohio EPA (see Appendix E) 

3 Nonroad includes nonroad model results plus Commercial Marice Wessels,
Railroad and Airports

4 MVEBs for 2004 are actual; budgets established for 2009 and 2018
include 15% reallocation from the safety margin

5 Sums may not totlal exactly due to rounding



Additionally, the following mobile programs are either effective or due
to become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:   

Heavy duty diesel on-road (2004/2007) and low-sulfur on-road (2006); 66
FR 2001 (January 18, 2001); and 

Non-road emissions standards (2008) and off-road diesel fuel
(2007/2010); 69 FR 39858 (June 29, 2004). 

In addition to the permanent and enforceable measures, CAIR, promulgated
May 12, 2005 (70 FR 25161) should have positive impacts on West Virginia
and Ohio’s air quality.  CAIR, which will be implemented in the
eastern portion of the country in two phases (2009 and 2015), should
reduce long range transport of ozone precursors, which will have a
beneficial effect on air quality in the Area.  

Currently, West Virginia is in the process of adopting rules to address
CAIR through state rules 45CSR39, 45CSR40, and 45CSR41, which require
annual and ozone season NOx reductions from EGUs and ozone season NOx
reductions from non-EGUs.  These rules were submitted to EPA as a SIP
revision by September 11, 2006 as required in the May 12, 2005 (70 FR
25161) Federal Register publication.  

Based upon the comparison of the projected emissions and the attainment
year emissions along with the additional measures, EPA concludes that
WVDEP has successfully demonstrated that the 8-hour ozone standard
should be maintained in the Area.   	

				

(c)  Monitoring Network - There is currently one monitor measuring ozone
in the Area, located in Ohio County, West Virginia.  West Virginia will
continue to operate its current air quality monitor in accordance with
40 CFR part 58. 							

(d)  Verification of Continued Attainment - The State of West Virginia
has the legal authority to implement and enforce specified measures
necessary to attain and maintain the NAAQS.  Additionally, Federal
programs such as Tier 2/Low Sulfur Gasoline Rule, 2007 On-Road Diesel
Engine Rule, and Federal Non-road Engine/Equipment Rules will continue
to be implemented on a national level.  These programs help provide the
reductions necessary for the Area to maintain attainment.  

In addition to maintaining the key elements of its regulatory program,
West Virginia requires ambient and source emissions data to track
attainment and maintenance.  The WVDEP proposes to fully update its
point, area, and mobile emission inventories at 3-year intervals as
required by the Consolidated Emissions Reporting Rule (CERR) to assure
that its growth projections relative to emissions in these areas are
sufficiently accurate to assure ongoing attainment with the NAAQS.  The
WVDEP will review stationary source VOC and NOx emissions by review of
annual emissions statements and by update of its emissions inventories. 
The area source inventory will be updated using the same techniques as
the 2002 ozone inventory.  However, some source categories may be
updated using historic activity levels determined from Bureau of
Economic Analysis (BEA) data or West Virginia University/Regional
Research Institute (WVU/RRI) population estimates.  The mobile source
inventory model will be updated by obtaining county-level VMT from the
WVDOT for the subject year and calculating emissions using the latest
approved MOBILE model.  Alternatively, the motor vehicle emissions may
be obtained in consultation with the MPO, Bel-O-Mar, using methodology
similar to that used for transportation conformity purposes.  The WVDEP
shall also continue to operate the existing ozone monitoring station in
the areas pursuant to 40 CFR part 58 throughout the maintenance period
and submit quality-assured ozone data to EPA through the AQS system.   

(e) The Maintenance Plan’s Contingency Measures - The contingency plan
provisions are designed to promptly correct a violation of the NAAQS
that occurs after redesignation.  Section 175A of the Act requires that
a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the State will promptly correct a violation of
the NAAQS that occurs after redesignation.  The maintenance plan should
identify the events that would “trigger” the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the State would adopt and implement the measure(s). 
 

The ability of Wheeling to stay in compliance with the 8-hour ozone
standard after redesignation depends upon VOC and NOx emissions in
Wheeling remaining at or below 2004 levels.  The State’s maintenance
plan projects VOC and NOx emissions to decrease and stay below 2004
levels through the year 2018.  The State’s maintenance plan lays out
two situations where the need to adopt and implement a contingency
measure to further reduce emissions would be triggered.  Those
situations are as follows:

(i) If the triennial inventories indicate significant emissions growth
above the 2004 maintenance base-year inventory or if a monitored air
quality exceedance pattern indicates that an ozone NAAQS violation may
be imminent – Then WVDEP will evaluate existing control measures to
ascertain if additional regulatory revisions are necessary to maintain
the ozone standard.  The maintenance plan also states that an exceedance
pattern would include, but is not limited to, the measurement of five
exceendances or more occurring at the monitor during a calendar year.  

(ii) In the event that a violation of the 8-hour ozone standard occurs
at the Ohio County, West Virginia monitor - The maintenance plan states
that in the event that a violation of the ozone standard occurs at the
Ohio County, West Virginia ozone the State of West Virginia will select
and adopt one or more of the following measures to assure continued
attainment:

Extend the applicability of 45CSR21 (VOC/RACT rule) to include source
categories previously excluded (e.g., waste water treatment facilities);


Revised new source permitting requirements requiring more stringent
emissions control technology and/or emissions offsets;

NOx RACT requirements;

Regulations to establish plant-wide emissions caps (potentially with
emissions trading provisions);

Establish a Public Awareness/Ozone Action Day Program, a two pronged
program focusing on increasing the public’s understanding of air
quality issues in the region and increasing support for actions to
improve the air quality, resulting in reduced emissions on days when the
ozone levels are likely to be high.  	

Initiate one or more of the following voluntary local control measures: 


(1) Bicycle and Pedestrian Measures - A series of measures designed to
promote bicycling and walking including both promotional activities and
enhancing the environment for these activities;

(2) Reduce Engine Idling - Voluntary programs to restrict heavy duty
diesel engine idling times for both trucks and school buses; 

(3) Voluntary Partnership with Ground Freight Industry - A voluntary
program using incentives to encourage the ground freight industry to
reduce emissions;

 (4) Increase Compliance with Open Burning Restrictions - Increase
public awareness of the existing open burning restrictions and work with
communities to increase compliance; and

(5) School Bus Engine Retrofit Program - Have existing school bus
engines retrofitted to lower emissions.  						



The following schedule for adoption, implementation and compliance
applies to the contingency measures concerning the option of
implementing regulatory requirements.  	

Confirmation of the monitored violation within 45 days of occurrence;

Measure to be selected within 3 months after verification of a monitored
ozone standard violation; 

Develop rule within 6 months of selection of measure;

File rule with state secretary (process takes up to 42 days); 

Applicable regulation to be fully implemented with in 6 months after
adoption.   

The following schedule for adoption, implementation and compliance
applies to the voluntary contingency measures.  

Confirmation of the monitored violation within 45 days of occurrence;

Measure to be selected within 3 months after verification of a monitored
ozone standard violation; 				

Initiation of program development with local governments within Wheeling
by the start of the following ozone season.   

(f) An Additional Provision of the Maintenance Plan - The State’s
maintenance plan for Wheeling has an additional provision.  That
provision states that based on the 2002 inventory data and calculation
methodology, it is expected that area and mobile source emissions will
not exhibit substantial increases between consecutive periodic year
inventories.  Therefore, if significant unanticipated emissions growth
occurs, it is expected that point sources would be the cause.  40 CFR
Part 51, the CERR (67 FR 39602) requires that states submit an annual
inventory of criteria pollutants for large point sources with actual
emissions greater than or equal to any of the emission thresholds to
EPA.  Any significant increases that occur can be identified from these
reports without waiting for a periodic inventory.  This gives West
Virginia the capability to identify needed regulations by source, source
category and pollutant and to begin the rule promulgation process, if
necessary, in an expeditious manner.    

The maintenance plan adequately addresses the five basic components of a
maintenance plan:  attainment inventory, maintenance demonstration,
monitoring network, verification of continued attainment, and a
contingency plan.  EPA believes that the maintenance plan SIP revision
submitted by West Virginia for Wheeling meets the requirements of
section 175A of the Act.

			

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

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

Under the CAA, States are required to submit, at various times, control
strategy SIPs and maintenance plans in ozone areas.  These control
strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs) and
maintenance plans identify and establish MVEBs for certain criteria
pollutants and/or their precursors to address pollution from on-road
mobile sources.  In the maintenance plan the MVEBs are termed “on-road
mobile source emissions budgets.”  Pursuant to 40 CFR part 93 and
51.112, MVEBs must be established in an ozone maintenance plan.  A MVEB
is the portion of the total allowable emissions that is allocated to
highway and transit vehicle use and emissions.  A MVEB serves as a
ceiling on emissions from an area’s planned transportation system. 
The MVEB concept is further explained in the preamble to the November
24, 1993, transportation conformity rule (58 FR 62188).  The preamble
also describes how to establish and revise the MVEBs in control strategy
SIPs and maintenance plans.  

Under section 176(c) of the CAA, new transportation projects, such as
the construction

of new highways, must “conform” to (i.e., be consistent with) the
part of the State’s air quality plan that addresses pollution from
cars and trucks.  “Conformity” to the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of or reasonable progress towards
the national ambient air quality standards.  If a transportation plan
does not “conform,” most new projects that would expand the capacity
of roadways cannot go forward.  Regulations at 40 CFR part 93 set forth
EPA policy, criteria, and procedures for demonstrating and assuring
conformity of such transportation activities to a SIP.  

When reviewing submitted “control strategy” SIPs or maintenance
plans containing

MVEBs, EPA must affirmatively find the MVEB budget contained therein
“adequate” for

use in determining transportation conformity.  After EPA affirmatively
finds the submitted

MVEB is adequate for transportation conformity purposes, that MVEB can
be used by State

and Federal agencies in determining whether proposed transportation
projects “conform” to

the state implementation plan as required by section 176(c) of the CAA. 
EPA’s substantive criteria for determining “adequacy” of a MVEB
are set out in 40 CFR 93.118(e)(4).

EPA’s process for determining “adequacy” consists of three basic
steps: public notification of a SIP submission, a public comment period,
and EPA’s adequacy finding.  This process for determining the adequacy
of submitted SIP MVEBs was initially outlined in EPA’s May 14, 1999
guidance, “Conformity Guidance on Implementation of March 2, 1999,
Conformity Court Decision.”  This guidance was finalized in the
Transportation Conformity Rule Amendments for the “New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and Miscellaneous
Revisions for Existing Areas; Transportation Conformity Rule Amendments
- Response to Court Decision and Additional Rule Change” on July 1,
2004 (69 FR 40004).  EPA follows this guidance and rulemaking in making
its adequacy determinations.  

The MVEBs for Wheeling are listed in Table 1 of this document for the
2004, 2009, and 2018 years and are the projected emissions for the
on-road mobile sources plus any portion of the safety margin allocated
to the MVEBs (safety margin allocation for 2009 and 2018 only).  These
emission budgets, when approved by EPA, must be used for transportation
conformity determinations.

			

B.  What Is a Safety Margin?

A “safety margin” is the difference between the attainment level of
emissions (from all sources) and the projected level of emissions (from
all sources) in the maintenance plan.  The attainment level of emissions
is the level of emissions during one of the years in which the area met
the NAAQS.  The following example is for the 2018 safety margin: 
Wheeling first attained the 8-hour ozone NAAQS during the 2002 to 2004
time period.  The State used 2004 as the year to determine attainment
levels of emissions for Wheeling.  The total emissions from point, area,
mobile on-road, and mobile non-road sources in 2004 equaled 23.6 tpd of
VOC and 101.2 tpd of NOx.  The WVDEP projected emissions out to the year
2018 and projected a total of 14.9 tpd of VOC and 34.6 tpd of NOx from
all sources in Wheeling.  The safety margin for 2018 would be the
difference between these amounts, or 8.7 tpd of VOC and 66.6 tpd of NOx.
 The emissions up to the level of the attainment year including the
safety margins are projected to maintain the area's air quality
consistent with the 8-hour ozone NAAQS.  The safety margin is the extra
emissions reduction below the attainment levels that can be allocated
for emissions by various sources as long as the total emission levels
are maintained at or below the attainment levels.  Table 5 shows the
safety margins for the 2009 and 2018 years.

Table 5:  2009 and 2018 Safety Margins for Wheeling 

Inventory Year	VOC Emissions (tpd)	NOx Emissions (tpd)

2004 Attainment	23.6	101.2

2009 Interim	14.8	72.9

2009 Safety Margin	8.8	28.3

2004 Attainment	23.6	101.2

2018 Final	14.9	34.6

2018 Safety Margin	8.7	66.6



The WVDEP allocated 0.56 tpd NOx and 0.33 tpd VOC to the 2009 interim
VOC projected on-road mobile source emissions projection and the 2009
interim NOx projected on-road mobile source emissions projection to
arrive at the 2009 MVEBs.  For the 2018 MVEBs the WVDEP allocated 0.22
tpd NOx and 0.19 tpd VOC from the 2018 safety margins to arrive at the
2018 MVEBs.  Once allocated to the mobile source budgets these portions
of the safety margins are no longer available, and may no longer be
allocated to any other source category.  Table 6 shows the final 2009
and 2018 MVEBS for Wheeling. 

Table 6:  2009 and 2018 Final MVEBs for Wheeling 

Inventory Year	VOC Emissions (tpd)	NOx Emissions (tpd)

2009 projected on-road mobile source projected emissions	2.21	3.74

2009 Safety Margin Allocated to MVEBs	0.33	0.56

2009 MVEBs*	2.54	4.30

2018 projected on-road mobile source projected emissions	1.24	1.47

2018 Safety Margin Allocated to MVEBs	0.19	0.22

2018 MVEBs*	1.43	1.69

* Highway budgets are shown at a precision of two decimal places for
conformity purposes

				

C.  Why Are the MVEBs Approvable?

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

								

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

The MVEBs for the Wheeling maintenance plan are being posted to EPA's
conformity Web site concurrent with this proposal.  The public comment
period will end at the same time as the public comment period for this
proposed rule.  In this case, EPA is concurrently processing the action
on the maintenance plan and the adequacy process for the MVEBs contained
therein.  In this proposed rule, EPA is proposing to find the MVEBs
adequate and also proposing to approve the MVEBs as part of the
maintenance plan.  The MVEBs cannot be used for transportation
conformity until the maintenance plan update and associated MVEBs are
approved in a final Federal Register notice, or EPA otherwise finds the
budgets adequate in a separate action following the comment period.  			


If EPA receives adverse written comments with respect to the proposed
approval of the Wheeling MVEBs, or any other aspect of our proposed
approval of this updated maintenance plan, we will respond to the
comments on the MVEBs in our final action or proceed with the adequacy
process as a separate action.  Our action on the Wheeling MVEBs will
also be announced on EPA's conformity Web site: 
http://www.epa.gov/oms/traq, (once there, click on the “Conformity”
button, then look for “Adequacy Review of SIP Submissions for
Conformity”).

VIII.   Proposed Actions

EPA is proposing to determine that the Area has attained the 8-hour
ozone NAAQS.  EPA is also proposing to approve the redesignation of the
Wheeling portion of the Area from nonattainment to attainment for the
8-hour ozone NAAQS.  EPA has evaluated West Virginia’s redesignation
request and determined that it meets the redesignation criteria set
forth in section 107(d)(3)(E) of the CAA.  EPA believes that the
redesignation request and monitoring data demonstrate that Wheeling has
attained the 8-hour ozone standard.  The final approval of this
redesignation request would change the designation of Wheeling from
nonattainment to attainment for the 8-hour ozone standard.  EPA is also
proposing to approve the associated maintenance plan for Wheeling,
submitted on July 24, 2006, as a revision to the West Virginia SIP.  EPA
is proposing to approve the maintenance plan for Wheeling because it
meets the requirements of section 175A as described previously in this
notice.  EPA is also proposing to approve the MVEBs submitted by West
Virginia for Wheeling in conjunction with its redesignation request. 
EPA is soliciting public comments on the issues discussed in this
document.  These comments will be considered before taking final action.
		

IX. Statutory and Executive Order Reviews   

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a "significant regulatory action" and therefore
is not subject to review by the Office of Management and Budget.  For
this reason, this action is also not subject to Executive Order 13211,
"Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use"  (66 Fed. Reg. 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 (Public Law 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 Wheeling area to
attainment for the 8-hour ozone NAAQS, the associated maintenance plan,
and the MVEBs identified in the maintenance plan, does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

This rule proposing to approve the redesignation of Wheeling to
attainment for the 8-hour ozone NAAQS, the associated maintenance plan,
and the MVEBs identified in the maintenance plan, does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects    

40 CFR Part 52 

				

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

			

40 CFR Part 81

Air pollution control, National Parks, Wilderness Areas.

							

										

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

										

							/s/

___________________________         	____________________________

Dated:  September 21, 2006			William T. Wisniewski, Acting

						Regional Administrator, 				

						Region III.				

				

While this monitor has been relocated twice, it remains, within five
miles of its’ original location.  Statistical analysis indicates that
the ozone monitoring sites have maintained the integrity of the 8-hour
NAAQS.  (See Technical Support Document (TSD)).   

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