

[Federal Register: May 14, 2007 (Volume 72, Number 92)]
[Rules and Regulations]               
[Page 27060-27063]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my07-5]                         


[[Page 27060]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0692; FRL-8314-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a redesignation request and a State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia. The West Virginia Department of Environmental Protection 
(WVDEP) is requesting that the Brooke and Hancock County, West Virginia 
(Weirton) portion of the Steubenville-Weirton, OH-WV 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 Weirton 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 
Weirton 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.

DATES: Effective Date: This final rule is effective on June 13, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2006-0692. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the electronic 

docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://www.regulations.gov or in hard 

copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the West Virginia Department of 
Environmental Protection, Division of Air Quality, 601 57th Street, 
SE., Charleston, WV 25304.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On October 2, 2006 (71 FR 57905), 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 Weirton that sets 
forth how Weirton will maintain attainment of the 8-hour ozone NAAQS 
for the next 12 years. The formal SIP revision was submitted by the 
WVDEP on August 3, 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 19, 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. However, 
errata were found on page 57912 of the NPR. On page 57912 (Table 4), an 
error occurred in EPA's calculation of the 2018 Ohio NOX 
point sources. The correct 2018 Ohio NOX point source should 
read 46.4 tons per day (tpd) instead of 41.0 tpd. This error adversely 
affects the total NOX point sources and the 2018 Ohio total 
NOX emissions. The correct total NOX point 
sources should read 52.0 tpd instead of 46.6 tpd. Lastly, the 2018 Ohio 
total NOX emissions should read 55.3 tpd instead of 49.9 
tpd. It should be noted that these errata do not affect the attainment 
of the 8-hour ozone standard or the demonstration of maintenance in the 
Area.

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 Weirton from nonattainment to attainment.
    Response: EPA acknowledges the comment of support for our final 
action.
    Comment: The commenter notes that although there are no electrical 
generating units (EGUs) in the Weirton portion of the Area, 
``significant'' NOX emissions reductions are expected from 
2002--2018 at two EGU's located in Steubenville. The commenter requests 
specific information on the controls at these plants and measures 
making these emissions reductions enforceable.
    Response: The Redesignation of Jefferson County, Ohio to Attainment 
of the 8-Hour Ozone Standard, 72 FR 711 (January 8, 2007) notes that 
Ohio's EGU NOX emissions control rules stemming from EPA's 
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 25162), to be implemented beyond 2006, will further lower 
NOX emissions in upwind areas, resulting in decreased ozone 
and ozone precursor transport into Jefferson County and the 
Steubenville-Weirton Area. This will also support maintenance of the 
ozone standard in this Area, which particularly benefits from the 
NOX SIP Call and CAIR. These two regulations focus on 
utility emissions in the Eastern United States and impose a permanent 
cap on overall emissions from affected sources. This cap is likely to 
minimize growth of this very important component of emissions in the 
Area.
    The emission projections for Jefferson County and the Steubenville-
Weirton Area as a whole, coupled with the expected impacts of the 
States' EGU NOX rules and CAIR, lead to the conclusion that 
the Area should maintain the 8-hour ozone NAAQS throughout the required 
10-year maintenance period and through 2018. The projected decreases in 
local VOC and local and regional NOX emissions indicate that 
peak ozone levels in the Area may actually further decline during the 
maintenance period.
    Based on the comparison of the projected emissions and the 
attainment year emissions, we conclude that the West Virginia 
Department of Environmental Protection (WVDEP) and the Ohio EPA have 
successfully demonstrated that the 8-hour ozone standard should be 
maintained throughout the Area.
    In addition, in this action EPA is approving the Maintenance Plan 
for Weirton and in a separate action has proposed approval of the 
Maintenance Plan for the Jefferson County

[[Page 27061]]

(Steubenville) portion of the Area. Collectively, the Ohio and West 
Virginia Maintenance Plans demonstrate why those states believe that 
the Area will continue to maintain the 8-hour ozone standard for at 
least 10 years from the date of redesignation. Furthermore, the 
Contingency Plans, which are components of the Maintenance Plans, set 
forth the steps that the States will undertake to preserve attainment 
of the 8-hour ozone standard if air quality indicators show that the 
air quality of the Area has declined to the point when contingency 
measures to reverse that deterioration of air quality should begin 
being implemented. Therefore, continued maintenance of the 8-hour ozone 
standard will be assured independent of whether or not enforceable 
reductions are currently called for at the two Jefferson County EGUs. 
In short, if projected reductions from the Jefferson County EGUs do not 
occur, and if the measures from the NOX SIP call, CAIR and 
other ozone control measures that are currently implemented or will be 
implemented in the near future, fail to maintain the 8-hour ozone 
standard in the Area, the States of West Virginia and Ohio nevertheless 
will have, with the Contingency Plan provisions of their Maintenance 
Plans, a SIP-approved process for assuring that air quality in 
Steubenville-Weirton Area will continue to maintain the 8-hour ozone 
standard.
    Comment: The commenter states that the Weirton 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 Weirton 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 Weirton 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 supports our conclusion in the NPR on October 2, 2006 (71 
FR 57905) that emissions reductions in the Area can be contributed to 
permanent and enforceable measures throughout the Area and that air 
quality monitoring data indicate that the Area continues to attain the 
8-hour ozone NAAQS.\1\
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    \1\ The fourth highest 8-hour ozone monitoring values at the 
Hancock County, West Virginia (Weirton) monitor for 2006 were 0.085 
ppm, 0.079 ppm, 0.079 ppm, and 0.077 ppm. The fourth highest 8-hour 
ozone monitoring values at the Jefferson County, Ohio (Steubenville) 
monitor for 2006 were 0.089, 0.083, 0.080 ppm, and 0.080 ppm. Thus 
the design values at both Area monitors for monitoring years 2004-
2006 are still showing attainment of the 8-hour NAAQS with a value 
of 0.075 ppm at the Weirton monitor and 0.078 ppm at the 
Steubenville monitor.
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    Comment: The commenter asks why the monitoring site in Jefferson 
County, Ohio was moved at the end of 2003, where the new site is in 
relation to the old one, and an explanation as to the acceptability of 
combining the data from the two sites.
    Response: The monitoring site in Jefferson County was relocated to 
a site \1/3\ mile from the original site after 2003 because Ohio EPA 
lost site access to the original site. The new site was approved by EPA 
Region 5 and meets all siting criteria described in 40 CFR 58 Appendix 
E. The original and final sites are sufficiently close together and 
removed from sources of ozone precursors such that the two sites 
represent the same air quality. Therefore, the data from the two sites 
can be combined when calculating the three-year average ozone 
concentration. See Redesignation of Jefferson County, Ohio to 
Attainment of the 8-Hour Ozone Standard, 72 FR 711 (January 8, 2007).
    Comment: The commenter asserts that cold and wet summers, rather 
than enforceable emissions reductions are a significant cause of 
improvement of air quality in Weirton, although the commenter also 
asserts based on the number of days exceeding 84 ppb 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 Weirton 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 3.0 tons per year (tpy) decrease in VOC emissions and a 
37.2 tpy decrease in NOX emissions throughout the 
Steubenville-Weirton 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 2006 monitoring data for the 
Weirton Area.
    Response: Preliminary (not quality assured) data is publicly 
available at the following Web sites: http://www.epa.gov/air/data/ and/or http://www.airnow.gov. See also, footnote 1.

    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

[[Page 27062]]

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 August 3, 2006 
redesignation request and maintenance plan because the requirements for 
approval have been satisfied. EPA has evaluated West Virginia's 
redesignation request, submitted on August 3, 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 Weirton has attained the 8-hour ozone standard. 
The final approval of this redesignation request will change the 
designation of the Weirton, West Virginia portion of the Area from 
nonattainment to attainment for the 8-hour ozone standard. EPA is 
approving the associated maintenance plan for Weirton, submitted on 
August 3, 2006, as a revision to the West Virginia SIP. EPA is 
approving the maintenance plan for Weirton 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 Weirton 8-hour ozone maintenance plan 
are adequate and approved for conformity purposes. As a result of our 
finding, Brooke and Hancock 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..........................................          2.8          2.0
2018..........................................          1.2          1.0
------------------------------------------------------------------------

Weirton 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 FR 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 (Pub. L. 104-4). 
This final rule also does not have a substantial direct effect on one 
or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes, as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor 
will it have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because it affects the status of a geographical area, does 
not impose any new requirements on sources, or allow the state to avoid 
adopting or implementing other requirements, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This final rule also is not subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it 
approves a state rule implementing a Federal standard. In reviewing SIP 
submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the Clean Air Act. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a SIP 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a SIP submission; to use VCS in 
place of a SIP submission that otherwise satisfies the provisions of 
the Clean Air Act. Redesignation is an action that affects the status 
of a geographical area and does not impose any new requirements on 
sources. Thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988 (61 FR 
4729, February 7, 1996), in issuing this final rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in

[[Page 27063]]

the Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 13, 2007. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action.
    This action, to approve the redesignation request, maintenance plan 
and adequacy determination for MVEBs for Weirton, may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

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

    Dated: May 4, 2007.
James W. Newsom,
Acting Regional Administrator, Region III.

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

PART 52--[AMENDED]

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

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

Subpart XX--West Virginia

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


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

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

                                                                      * * * * * * *
8-Hour Ozone Maintenance Plan for the  Brooke and Hancock              08/03/06  05/14/07 [Insert page number where   ..................................
 Steubenville-Weirton, OH-WV Area.      Counties.                                 the document begins].
--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

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

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


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


Sec.  81.349  West Virginia

* * * * *

                                                         West Virginia--Ozone (8-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Designation \a\                                        Category/Classification
          Designated area          ---------------------------------------------------------------------------------------------------------------------
                                        Date\1\                   Type                            Date \1\                            Type
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Steubenville-Weirton, OH-WV Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Brooke County.....................        05/14/07  Attainment......................
Hancock County....................        05/14/07  Attainment......................

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian country located in each county or area except otherwise noted.
\1\ This date is June 15, 2004, unless otherwise noted.

* * * * *
[FR Doc. E7-9208 Filed 5-11-07; 8:45 am]

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