  SEQ CHAPTER \h \r 1  	ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

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

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.							

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.

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-2006-0692.  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 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.  

  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 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 reduction 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 (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 date
indicates that the Area continues to attain the 8-hour ozone NAAQS.  

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 request 2006 monitoring data for the Weirton
Area.

Response:  Preliminary (not quality assured) data is publicly available
at the following websites:    HYPERLINK "http://www.epa.gov/air/data/" 
www.epa.gov/air/data/  and/or   HYPERLINK "http://www.airnow.gov" 
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 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 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 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 Dioxides, Reporting and recordkeeping
requirements, Volatile organic compounds.

40 CFR Part 81 

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

						                               /s/

___________				                         ____________________

Dated: 	May 4, 2007				   	James W. Newsom, 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, Steubenville-Weirton, OH-WV
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 Steubenville-Weirton, OH-WV Area
Brooke and Hancock Counties 	08/03/06	[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
Steubenville-Weirton, OH-WV Area to read as follows:

§ 81.349              West Virginia         

*          *          *          *          *

		West Virginia - Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*          *          *         *         *          *          *

Steubenville-Weirton, OH-WV Area

Brooke County	[Insert date of publication]	Attainment



Hancock 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 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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