  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
Area’s Maintenance Plan

									

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.							

SUMMARY:  EPA is approving a redesignation request and a State
Implementation Plan (SIP) revision submitted by the State of West
Virginia.  The West Virginia Department of Environmental Protection
(WVDEP) is requesting that the Marshall and Ohio County, West Virginia
(Wheeling) portion of the Wheeling, WV-OH area (herein referred to as
the “Area”) be redesignated as attainment for the 8-hour ozone
national ambient air quality standard (NAAQS).  In conjunction with its
redesignation request, the State submitted a SIP revision consisting of
a maintenance plan for Wheeling that provides for continued attainment
of the 8-hour ozone NAAQS for the next 12 years, until 2018.  EPA is
also approving the adequacy determination for the motor vehicle emission
budgets (MVEBs) that are identified in the Wheeling 8-hour ozone
maintenance plan for purposes of transportation conformity, and is
approving those MVEBs.  EPA is approving the redesignation request and
the maintenance plan revision to the West Virginia SIP in accordance
with the requirements of the CAA.

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA- R03-OAR-2006-0682.  All documents in the docket are listed
in the     HYPERLINK "http://www.regulations.gov"  www.regulations.gov 
website.  Although listed in the electronic docket, some information is
not publicly available, i.e., confidential business information (CBI) or
other information whose disclosure is restricted by statute.  Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically
through     HYPERLINK "http://www.regulations.gov"  www.regulations.gov 
or in hard copy for public inspection during normal business hours at
the Air Protection Division, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.  Copies
of the State submittal are available at the West Virginia Department of
Environmental Protection, Division of Air Quality, 601 57th Street SE,
Charleston, WV 25304.		

FOR FURTHER INFORMATION CONTACT:  Amy Caprio, (215) 814-2156, or by
e-mail at   HYPERLINK "mailto:caprio.amy@epa.gov"  caprio.amy@epa.gov . 


SUPPLEMENTARY INFORMATION:  

I.  Background	

On October 2, 2006 (71 FR 57894), EPA published a notice of proposed
rulemaking (NPR) for the State of West Virginia.  The NPR proposed
approval of West Virginia’s redesignation request and a SIP revision
that establishes a maintenance plan for Wheeling that sets forth how
Wheeling will maintain attainment of the 8-hour ozone NAAQS for the next
12 years.  The formal SIP revision was submitted by the WVDEP on July
24, 2006.  Other specific requirements of West Virginia’s
redesignation request SIP revision for the maintenance plan and the
rationales for EPA’s proposed actions are explained in the NPR and
will not be restated here.  

On October 20, 2006, EPA received a comment, from the West Virginia
Division of Highways, in support of its October 2, 2006 NPR.  Also, on
October 28, 2006, EPA received adverse comments on the said October 2,
2006 NPR.  A summary of the comments submitted and EPA’s responses are
provided in Section II of this document.     

  SEQ CHAPTER \h \r 1 II.  Summary of Public Comments and EPA Responses

Comment:  The commenter stated that on behalf of the West Virginia
Division of Highways, they would like to go on record as supporting the
redesignation of the Wheeling, West Virginia portion of the Wheeling,
WV-OH interstate area from nonattainment to attainment.

Response:  EPA acknowledges the comment of support for our final action.
    

Comment:  The commenter states that the Wheeling Area redesignation is
based on 2002-2004 air quality data, and should instead be based on the
most recent three years of air quality data, 2004-2006.  

Response:  EPA disagrees that the 2006 data was available as a basis for
redesignating Wheeling to attainment, and also disagrees with the
comment that the redesignation cannot be based on the quality assured
2002-2004 air quality data.  EPA may redesignate an area to attainment
of the 8-hour ozone NAAQS if three years of quality assured data
indicate that the area has attained the standard and the most recent
quality assured air quality data indicates that the area is still
attaining the standard at the time of the redesignation.  EPA has
determined that the Wheeling, WV portion of the Wheeling, WV-OH
nonattainment area has attained compliance with the 8-hour ozone NAAQS
subsequent to the calendar year 2004 ozone season (April –October)
based on three years (2002-2004) of quality assured data.  It is also
worth noting that while our determination that the Area has attained the
standard is based on the 2002-2004 data, the 2005 calendar year quality
assured data and the newly available quality assured data from 2006,
indicate that the Area continues to attain the standard.  The 2005 and
2006 data support our conclusion in the notice of proposed rulemaking
(NPR) on October 2, 2006 (71 FR 57894) that emissions reductions in the
Area can be contributed to permanent and enforceable measures throughout
the Area and that air quality monitoring date indicates that the Area
continues to attain the 8-hour ozone NAAQS.  

Comment:  The commenter asserts that EPA should not approve the
redesignation of Wheeling because the Wheeling monitor was twice
relocated during calendar years 2004 and 2005.  The commenter states
that (at its current location) the Wheeling ozone monitor should operate
for one additional year in order to confirm attainment of the NAAQS and
that EPA should not act on WVDEP’s redesignation request until the air
quality data for the additional monitoring period has been evaluated.   


Response:  Since 1982, WVDEP has operated and maintained an ozone
monitoring station for the West Virginia portion of the Wheeling Area.
The commenter refers to the Wheeling monitor as having been relocated
from “Site 7” to “Site 9,” and finally to “Site 10.”  The
monitoring station was originally located at WVDEP’s Northern
Panhandle Regional Office.  The station continued to operate at this
location (Site 7) until WVDEP had to discontinue the operations at the
site due to the relocation of its Northern Panhandle Regional Office
prior to the calendar year 2004 ozone season (April through October). 
As a result, WVDEP installed an interim ozone station in the Wheeling
Area which was located approximately four miles south of the station’s
original location and collected data for the 2004 ozone season (Site 9).
 In anticipation of the 2005 season, WVDEP established a new site for
the Wheeling ozone monitor which was approximately three-tenths of a
mile south of the monitor’s original location (Site 10).  The new
monitoring site is similar in characteristics to the original monitoring
site.  The sites are located in the same river valley with no
obstructions between the sites and have a similar distribution of
surrounding ozone sources.  Both monitoring locations are located within
the City of Wheeling, West Virginia and the surrounding areas have
comparable population density, with no large industrial sources, and no
adjacent highways.  The current location of the Wheeling ozone monitor
is in an area which has the infrastructure and arranged access to
operate for many years. 

The data from monitoring sites 7, 9, and 10 was pooled for two three-
year periods: (1) 2002, 2003, and 2004 (Sites 7 and 9) and (2) 2003,
2004 and 2005 (Sites 7, 9, 10).  In addition, the data from monitoring
sites 9 and 10 were pooled for 2004-2006.  See also, footnote 1.  The
commenter asserted that data obtained from Site 9 was a “poor site”
and that the data obtained from this site in 2004 was of low value for
purpose of the 8-hour ozone NAAQS.  EPA evaluated ozone statistics for
the Wheeling Area for 2004 (i.e. number of days with eight-hour averages
greater than 0.0084 ppm and 4th highest eight-hour average for the
year), and found them to be reasonable and consistent when compared to
ozone measurements collected in Wheeling and at other nearby monitoring
stations in the Ohio River Valley during the period examined (1998 thru
2005).  

  SEQ CHAPTER \h \r 1 Based on a review of ozone air quality data from
the Wheeling Area for this period, the proximity and characteristics of
the monitoring sites, and giving consideration to WVDEP’s reasons for
relocating the ozone monitoring station during period of 2003-2005, EPA
has concluded that the integrity of ozone data submitted for this Area
was not affected by the fact that the data was collected from three
different, and relatively close together, monitoring locations.  This
data is acceptable for purposes of redesignating the Wheeling Area to
attainment of the 8-hour ozone NAAQS.   

Comment:  The commenter asserts that cold and wet summers, rather than
enforceable emissions reductions are a significant cause of improvement
of air quality in Wheeling, although the commenter also asserts based on
the number of days exceeding 84 ppb in 2005 that the air quality is
actually not improving.

Response:  In accordance with Appendix I to 40 CFR Part 50, compliance
with the 8-hour ozone NAAQS is met at an ambient air monitoring site
when the 3-year average of the annual fourth-highest daily maximum
8-hour average ozone concentration is less than or equal to 0.08 ppm; it
is not based on the number of days which exceed the 8-hour ozone
standard.  Additionally, EPA uses the three-year averaging period to
minimize year to year variations in the summer (i.e., ozone season)
weather.  See Redesignation of Pittsburgh, Pennsylvania, 66 FR 53094,
53100 (October 19, 2001).  Therefore, the number of days exceeding 84
ppb are not relevant to a determination of whether an area (or portion
thereof), has attained the 8-hour ozone NAAQS.  Information relative to
long term trends of West Virginia summer temperatures and rainfall-based
data was obtained from the National Oceanic and Atmospheric
Administration’s (NOAA) National Climate Data Center (please see
attached).  Based on EPA’s review, this information shows that the
summers 2000 through 2006 experienced year to year variations in average
summer temperature and rainfall typical of the summer seasons in the
State of West Virginia.  Thus the improvement in air quality is not due
to unusually cold and wet summers.  Rather, the improvement in air
quality is due to the implementation of permanent and enforceable
measures as explained in the NPR.  The permanent and enforceable
measures listed in the Wheeling NPR include the National Low Emissions
Vehicle (NLEV), motor vehicle fleet turnover with new vehicles meeting
the Tier 2 standards, and the Clean Diesel Program.  These federal
vehicle programs along with the NOx SIP Call resulted in a 0.9 tons per
year (tpy) decrease in VOC emissions and a 69.8 tpy decrease in NOx
emissions throughout the Wheeling Area between 2002 and 2004. 
Therefore, EPA believes that the improvement in 8-hour ozone air quality
is a result of identifiable, permanent and enforceable reductions in
ozone precursor emissions, not unusually cold and wet summers.          

Comment:  The commenter requests air quality data for time periods
outside the time period be used for redesignation, and for areas outside
the West Virginia portion of the Wheeling Area which is the subject of
this rulemaking, and other air quality data such as data provided by the
Clean Air Status and Trends Network (CASTNET) and the National
Atmospheric Deposition Program (NADP) monitoring networks which has not
been used to support this rulemaking.  The commenter also insists that
monitoring data from a rural ozone monitoring site, a CASTNET monitor,
located in adjacent Noble County, Ohio should have been considered in
this rulemaking.  

Response:  As discussed previously, the redesignation is demonstrated by
the quality assured 2002-2004 ozone monitoring data, and continued
attainment of the 8-hour ozone NAAQS is demonstrated by the quality
assured 2005 and 2006 ozone monitoring data for the Wheeling Area. 
Other air quality data, from other monitoring networks or for time
periods outside the years being used to support the redesignation
request, or which are located outside the Wheeling Area (i.e Noble
County, OH CASTNET monitor), are not relevant to the redesignation
request.  Furthermore, CASTNET and NADP monitors are not operated for
purposes of the regional ozone monitoring network nor do they satisfy
the quality assurance requirements necessary to support requests for
redesignation.  

  

Additionally, the United States Court of Appeals for the District of
Columbia Circuit  recently vacated EPA’s April 30, 2004 “Final Rule
to Implement the 8-Hour Ozone National Ambient Standard” (the Phase 1
implementation rule).  South Coast Air Quality Management District v.
EPA, 472 F.3d 882 (D.C. Cir. 2007).  EPA issued a supplemental proposed
rulemaking that set forth its views on the potential effect of the
Court’s ruling on this and other proposed redesignation actions.  72
FR 13452 (March 22, 2007).  EPA proposed to find that the Court’s
ruling does not alter any requirements relevant to the proposed
redesignations that would prevent EPA from finalizing these
redesignations, for the reasons fully explained in the supplemental
notice.  EPA provided a 15-day review and comment period on this
supplemental proposed rulemaking.  The public comment period closed on
April 6, 2007.  EPA received six comments, all supporting EPA’s
supplemental proposed rulemaking, and supporting redesignation of the
affected areas.  EPA recognizes the support provided in these comments
as well, but again, we do not believe any specific response to comments
is necessary with respect to these comments.  In addition, several of
these comments included additional rationale for proceeding with these
proposed redesignations.  EPA had not requested comment on any
additional rationale, does not believe any additional rationale is
necessary, and similarly does not believe any specific response to these
comments is necessary, and thus has not provided any.  

III.  Final Action

EPA is approving the State of West Virginia’s July 24, 2006
redesignation request and maintenance plan because the requirements for
approval have been satisfied.  EPA has evaluated West Virginia’s
redesignation request, submitted on July 24, 2006, and determined that
it meets the redesignation criteria set forth in section 107(d)(3)(E) of
the CAA.  EPA believes that the redesignation request and monitoring
data demonstrate that Wheeling has attained the 8-hour ozone standard. 
The final approval of this redesignation request will change the
designation of Wheeling from nonattainment to attainment for the 8-hour
ozone standard.  EPA is approving the associated maintenance plan for
Wheeling, submitted on July 24, 2006, as a revision to the West Virginia
SIP.  EPA is approving the maintenance plan for Wheeling because it
meets the requirements of section 175A.  

EPA is also approving the MVEBs submitted by West Virginia in
conjunction with its redesignation request.  In this final rulemaking,
EPA is notifying the public that we have found that the MVEBs for NOx
and VOCs in the Wheeling 8-hour ozone maintenance plan are adequate and
approved for conformity purposes.  As a result of our finding, Marshall
and Ohio Counties must use the MVEBs from the submitted 8-hour ozone
maintenance plan for future conformity determinations.  The adequate and
approved MVEBs are provided in the following table:

Adequate and Approved Motor Vehicle Emissions Budgets (MVEBs) in Tons
Per Day (TPD)

Budget Year	NOx	VOC

2009	4.3	2.5

2018	1.7	1.4



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

            

IV.  Statutory and Executive Order Reviews

A.  General Requirements 

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final
action is not a "significant regulatory action" and therefore is not
subject to review by the Office of Management and Budget.  For this
reason, this action is also not subject to Executive Order 13211,
"Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use"  (66 Fed. Reg. 28355 (May 22, 2001)).  This action
approves state law as meeting Federal requirements and imposes no
additional requirements beyond those imposed by state law. 
Redesignation of an area to attainment under section 107(d)(3)(e) of the
Clean Air Act does not impose any new requirements on small entities. 
Redesignation is an action that affects the status of a geographical
area and does not impose any new regulatory requirements on sources.
Accordingly, the Administrator certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).  
Because this rule approves pre-existing requirements under state law and
does not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded Mandates
Reform Act of 1995 (Public Law 104-4).  This final rule also does not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999), because it affects the status of a
geographical area, does not impose any new requirements on sources, or
allow the state to avoid adopting or implementing other requirements,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act.  This final rule also
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it approves a state rule implementing a Federal standard.  In
reviewing SIP submissions, EPA’s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act.  In this
context, in the absence of a prior existing requirement for the State to
use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS.  It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission; to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act.  Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources.  Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act of
1995 (15 U.S.C. 272 note) do not apply.  As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
final rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a clear
legal standard for affected conduct.  EPA has complied with Executive
Order 12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the “Attorney General’s
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings” issued under the executive order. 

B.  Submission to Congress and the Comptroller General

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

C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [insert date 60 days from date of
publication of this document in the Federal Register].  Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action.  

This action, to approve the redesignation request, maintenance plan and
adequacy determination for MVEBs for Wheeling, may not be challenged
later in proceedings to enforce its requirements.  (See section
307(b)(2)).

List of Subjects 

40 CFR Part 52

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

40 CFR Part 81 

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

						                          /s/

___________				                        ___________________________    

Dated: 	 May 8, 2007				   	William T. Wisniewski, Acting

							Regional Administrator,

							Region III. 

40 CFR parts 52 and 81 are amended as follows: 

PART 52 - [AMENDED] 

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

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

Subpart XX– West Virginia

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

										

§ 52.2520  		Identification of plan.

*		*		*		*		*

(e)*** 

Name of non-regulatory SIP revision	Applicable geographic area	State
submittal date	EPA approval date	Additional 

explanation

*                    *                      *                   *       
           *                 *                    *

8-Hour Ozone Maintenance Plan for the Wheeling, WV-OH Area	Marshall and
Ohio County 	07/24/06	[Insert Federal Register publication date] [Insert
page number where the document begins]

	

	

PART 81 - [AMENDED]

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

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

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

§ 81.349              West Virginia         

*          *          *          *          *

		West Virginia - Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*          *          *         *         *          *          *

Wheeling, WV-OH Area

Marshall County	[Insert date of publication]	Attainment



Ohio County	[Insert date of publication]	Attainment



*          *          *         *         *          *         *  

aIncludes Indian country located in each county or area except otherwise
noted.

1 This date is June 15, 2004, unless otherwise noted.

									

									

*          *          *         *         *

 The fourth highest 8-hour ozone monitoring values at the Ohio County,
West Virginia monitor for 2006 were 0.085 ppm, 0.083 ppm, 0.079 ppm, and
0.079 ppm.  Thus the design value at the Area monitor for monitoring
years 2004-2006 are still showing attainment of the 8-hour NAAQS with a
value of 0.077 ppm at the Wheeling monitor.  

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