  SEQ CHAPTER \h \r 1  	ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0917; FRL-       ]

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Redesignation of the Richmond-Petersburg 8-Hour Ozone Nonattainment Area
to Attainment and Approval of the Area’s Maintenance Plan and 2002
Base-Year Inventory

									

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 Commonwealth of
Virginia.  The Virginia Department of Environmental Quality (VADEQ) is
requesting that the Richmond-Petersburg nonattainment area (herein
referred to as the “Richmond Area” or the “Area”) be
redesignated as attainment for the 8-hour ozone national ambient air
quality standard (NAAQS).  In conjunction with its redesignation
request, the Commonwealth submitted a SIP revision consisting of a
maintenance plan for the Richmond Area that provides for continued
attainment of the 8-hour ozone NAAQS for the next 11 years, until 2018. 
Concurrently, EPA is approving the Commonwealth’s maintenance plan for
the 8-hour ozone standard.  EPA is not taking final action in this
rulemaking on the Commonwealth’s request that the 8-hour maintenance
plan supersede the previous maintenance plan for the 1-hour standard. 
EPA is also approving the adequacy determination for the motor vehicle
emission budgets (MVEBs) that are identified in the Richmond 8-hour
maintenance plan for purposes of transportation conformity, and is
approving those MVEBs.  EPA is also approving the 2002 base year
emissions inventory for the Area.  EPA is approving the redesignation
request, the maintenance plan, and the 2002 base year emissions
inventory as revisions to the Virginia SIP in accordance with the
requirements of the Clean Air Act (CAA).

EFFECTIVE DATE:    SEQ CHAPTER \h \r 1 This final rule is effective on
[insert date 15 days from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA- R03-OAR-2006-0917.  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 Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.  

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 April 12, 2007 (72 FR 18434), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Virginia.  On May 10, 2007 (72
FR 26581), EPA published a correction to the NPR.  The correction to the
NPR fixed Table 5 in the original NPR.  The NPR proposed approval of
Virginia’s redesignation request, a SIP revision that establishes a
maintenance plan for the Richmond Area that sets forth how the Richmond
Area will maintain attainment of the 8-hour ozone NAAQS for the next 11
years, and a 2002 base year emissions inventory.  The formal SIP
revisions were submitted by the VADEQ on September 18, 2006, September
20, 2006, September 25, 2006 and supplements on November 17, 2006 and
February 13, 2007.  Other specific requirements of 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 May 14, 2007, EPA received a comment,
from Dominion Resources Services, Inc., in support of its April 12, 2007
NPR.  Also, On May 11, 2007, EPA received adverse comments on the said
April 12, 2007 NPR.  A summary of the comments submitted and EPA’s
responses are provided in Section II of this document.       

II.  Summary of Public Comments and EPA Responses

Comment:  The commenter states that Dominion Resources Services, Inc.
supports EPA’s redesignation proposal for the Richmond-Petersburg Area
and urges EPA to move forward with a final redesignation rulemaking.  

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

Comment:  We received comments that claimed Virginia had not fulfilled
all applicable Part D requirements under the 8-hour NAAQS. 
Specifically, the comments claimed that because the Richmond area was
initially designated as a moderate nonattainment area Virginia was
required to have provisions in the SIP for the following three control
technique guidelines (CTGs):  (1) Reactor Processes and Distillation
Processes (notice of release: 58 FR 60197, November 15, 1993); (2) Wood
Furniture manufacturing Operations (notice of release: 61 FR 25223, May
20, 1996); and, (3) Shipbuilding and Ship repair Surface Coating
Operations (notice of release: 61 FR 44050, August 27, 1996).

Response:  EPA disagrees with the comment.  While the Richmond area was
initially classified as a moderate ozone nonattainment area for the
8-hour ozone NAAQS in an April 30, 2004 final rule (69 FR 23858), the
area was reclassified as marginal by a September 22, 2004 final rule (69
FR 56697) pursuant to the authority of section 181(a)(4) of the CAA. 
Under section 181(a)(4), an ozone nonattainment area may be reclassified
“if an area classified under paragraph (1) (Table 1) would have been
classified in another category if the design value in the area were 5
percent greater or 5 percent less than the level on which such
classification was based.”  See 69 FR at 56700, September 22, 2004.  

Under subpart 2 to Part D, the classification of an ozone nonattainment
area has three main consequences:  first, certain control programs,
required SIP submissions and other requirements are mandated by section
182; second, the area receives a statutorily mandated attainment date
pursuant to section 181; and, last, in the case of marginal areas,
certain requirements under section 172(c), such as an attainment
demonstration or contingency measures, are not applicable.   In
addition, with respect to Reasonably Available Control Technology
(RACT), section 182(a)(2)(A), which sets forth the specifics of the
applicable Part D requirements for marginal areas, only requires states
correct certain deficiencies in their RACT SIP which were required prior
to enactment of the 1990 Amendments to the CAA on November 15, 1990. 
With respect to CTG RACT requirements, section 182(a)(2)(A) required
correction of deficiencies in rules to implement CTGs issued before
November 15, 1990.  In contrast, for moderate areas section 182(b)(2) of
the CAA requires among other things implementation of RACT for any
existing sources covered by any CTG issued by EPA after November 15,
1990 until the date of attainment.  The CTGs specified in the comment
were all issued after November 15, 1990 and therefore not subject to
section 182(a)(2)(A).  

  

Comment:  We received comments that claimed Virginia had not fulfilled
all applicable Part D requirements under the 1-hour NAAQS. 
Specifically, the comments claimed that because the Richmond area was
designated as a moderate nonattainment area Virginia was required to
have provisions in the SIP for the following three control technique
guidelines (CTGs):  (1) Reactor Processes and Distillation Processes
(notice of release: 58 FR 60197, November 15, 1993); (2) Wood Furniture
manufacturing Operations (notice of release: 61 FR 25223, May 20, 1996);
and, (3) Shipbuilding and Ship repair Surface Coating Operations (notice
of release: 61 FR 44050, August 27, 1996).

Response:  EPA redesignated the Richmond nonattainment area from
nonattainment for attainment for the 1-hour NAAQS on November 17, 1997. 
In that action, EPA made a final determination that the area had
fulfilled all applicable Part D requirements.  We have not re-opened
that issue in the context of this rulemaking.

 

Comment:  The commenter states that the April 12, 2007 Federal Register
states that EPA “… notified Virginia that it was required to
implement the contingency measures contained in the SIP approved
maintenance plan” (referring to the 1-hour ozone plan).   The
commenter states that there were violations of the 1-hour ozone standard
in 1998, 1999, 2000, 2001, 2002, 2003 and 2004.  The commenter requests
clarification whether contingency measures for the 1-hour ozone
violations were implemented.

Response:  EPA asserts that implementation of previous contingency
measures for the 1-hour ozone standard is irrelevant to the approval of
the 8-hour ozone redesignation request.  The Richmond Area is currently
in attainment with the 8-hour ozone standard.   The redesignation of the
Richmond Area for the 1-hour ozone standard (62 FR 61237, November 17,
1997) addressed the 1-hour ozone requirements adequate for redesignation
of the 1-hour ozone standard.  The status of contingency measures for
the 1-hour maintenance plan is not an applicable Part D requirement for
implementation of or redesignation for the 8-hour ozone standard and
therefore is not relevant to this action.   

However, in response to the request for clarification, several
inaccuracies in the comment are of note.  First, the commenter
incorrectly references the April 12, 2007 Federal Register.  The
statement quoted is not found in the April 12, 2007 Federal Register
notice of proposed rulemaking, nor in any of the supporting documents
associated with the proposed 8-hour ozone redesignation request for the
Richmond Area.  The statement is actually found in an unrelated proposed
rule dated October 7, 2002, pertaining to revisions to the 1-hour ozone
maintenance plan.   This proposed rule was not finalized.  Second, the
commenter incorrectly reports the violations of the 1-hour standard. 
There were violations of the 1-hour NAAQS only in the years 1998, 1999
and 2002.    

Regarding the implementation of contingency measures for these 1-hour
ozone violations, in response to the 1998 and 1999 violations, open
burning restrictions were implemented by a state regulation as a
contingency measure in 2000.  Also, the Commonwealth implemented
additional control measures, including the NOx SIP Call, after the 2002
1-hour ozone violation. 

Comment:  The commenter states that the Henrico County Monitor measured
exceedances of the 8-hour ozone standard during the 2005 and 2006 ozone
season and that EPA should either delay final approval of the
redesignation request until the end of the 2007 ozone season to
determine if this monitor shows a violation of the 8-hour ozone
standard, or EPA should conduct an evaluation on whether this monitor is
projected to have no more than three exceedances during 2007.  

Response:  EPA acknowledges that preliminary 2006 air quality data
indicates a fourth high value of 0.086 parts per million (ppm) at the
Henrico County monitor.  However, 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.  40 CFR 50.10 and Appendix I.  The preliminary
four highest 8-hour ozone monitoring values at the Henrico County,
Virginia monitor (one of the monitors located in the Richmond Area) for
2006 were 0.097 ppm, 0.096 ppm, 0.086 ppm, and 0.086 ppm.  The design
value at the Henrico County monitor for monitoring years 2003-2005 shows
attainment of the 8-hour NAAQS with a design value of 0.080 ppm.  In
addition, preliminary 2004-2006 air quality data indicate that the
Henrico County monitor continues to show attainment of the 8-hour NAAQS
with a design value of 0.081 ppm.  Thus exceedances at this monitor did
not prevent the area from reaching and continuing to show attainment of
the 8-hour standard.  Preliminary data from other monitors in the area
also showed attainment. See Table 1 below for preliminary 2006 air
quality monitoring data.  

Table 1: Richmond Monitors, Preliminary Fourth Highest 8-Hour Ozone
Concentrations, parts per million (ppm)

Monitor	AQS ID #	2006

Chesterfield County 	510410004	0.077

Henrico County 	510870014	0.086

Hanover County 	510850003	0.082

Charles City County 	510360002	0.081



The Chesterfield County monitor would have an 8-hour design value for
2004-2006 of 0.076 ppm.  The Henrico County monitor would have an 8-hour
design value for 2004-2006 of 0.081 ppm.  The Hanover County monitor
would have an 8-hour design value for 2004-2006 of 0.081.  The Charles
City County monitor would have an 8-hour design value for 2004-2006 of
0.080.  These preliminary data and design values show that the
site-specific ozone design values (average fourth-high daily maximum
8-hour ozone concentrations over the period of 2004-2006) for all
monitoring sites in the Richmond Area are below 0.084 ppm.  Therefore,
the EPA believes that the Richmond Area continues to attain the 8-hour
ozone NAAQS.  

      

With regard to delaying approval of the Richmond Area redesignation
request and conducting an evaluation of the monitor, 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. 
The most recent quality-assured air quality data indicates that the Area
is attaining the standard and preliminary data for 2006 show that the
Area is still attaining the standard at the time of the redesignation. 
EPA has determined that the Richmond Area has attained the 8-hour
standard and has met all of the applicable requirements for
redesignation pursuant to section 107(d)(3)(E) of the Clean Air Act. The
Commonwealth’s maintenance plan demonstrates that the Area is
projected to maintain the standard.  Consistent with the requirements of
section 175A and 107(d)(3)(E) of the CAA, the Commonwealth has submitted
a maintenance plan for the Richmond Area for the 8-hour ozone standard
which shows continued maintenance and continuing reductions in NOx and
VOC emissions through 2018 further decreasing peak ozone levels and
maintaining ozone attainment.  Furthermore, as demonstrated by the
contingency measure provisions required by section 175A(d), the CAA
clearly anticipates and provides for situations where an area might
monitor a violation of the NAAQS after having been redesignated to
attainment.  The Commonwealth has included contingency measure
provisions consistent with CAA requirements in its maintenance plan to
address any possible future violation of the NAAQS. 

EPA believes that the contingency measures, which are a component of the
maintenance plan, set forth the steps that the Commonwealth will
undertake to preserve attainment of the 8-hour ozone standard if air
quality indicators show that the air quality of the Richmond Area has
declined to the point when contingency measures to reverse that
deterioration of air quality should begin being implemented.  Thus, for
all the above reasons, EPA sees no reason to delay approval of the
Commonwealth’s redesignation request

III.  Final Action

EPA is approving the Commonwealth of Virginia’s redesignation request,
maintenance plan, and 2002 base year emissions inventory because the
requirements for approval have been satisfied.  EPA has evaluated
Virginia’s redesignation request, submitted on September 20, 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 the Richmond Area has attained the
8-hour ozone standard.  The final approval of this redesignation request
will change the designation of the Richmond Area from nonattainment to
attainment for the 8-hour ozone standard.  EPA is approving the
associated maintenance plan for the Richmond Area, submitted on
September 25, 2006, as a revision to the Virginia SIP.  EPA is approving
the 8-hour maintenance plan for the Richmond Area because it meets the
requirements of section 175A.  EPA is not taking final action in this
rulemaking on the Commonwealth’s request that the 8-hour maintenance
plan supersede the previous 1-hour maintenance plan.  EPA is approving
the MVEBs submitted by Virginia in conjunction with its redesignation
request.  EPA is also approving the 2002 base year emissions inventory,
submitted on September 18, 2006 and supplemented by VADEQ on November
17, 2006 and February 13, 2007, as a revision to the Virginia SIP.  In
this final rulemaking, EPA is notifying the public that we have found
that the MVEBs for NOx and VOCs in the Richmond Area for the 8-hour
ozone maintenance plan are adequate and approved for conformity
purposes.  As a result of our finding, the Cities of Petersburg,
Colonial Heights, Hopewell, and Richmond, and the Counties of Prince
George, Chesterfield, Hanover, Henrico, and Charles City, Virginia 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

2011	43.661	32.343

2018	26.827	23.845



Richmond is subject to the CAA’s requirements for marginal 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,
adequacy determination for MVEBs, and the 2002 base year emissions
inventory for the Richmond Area, 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 25, 2007				   	Donald S. Welsh, 

							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 VV– Virginia

2. In § 52.2420, the table in paragraph (e) is amended by adding an
entry for the 8-Hour Ozone Maintenance Plan, Richmond-Petersburg, VA
Area at the end of the table to read as follows:

										

§ 52.2420  		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 and 2002 Base Year Emissions Inventory
Richmond-Petersburg, VA Area  	9/18/06; 9/20/06; 9/25/06; 11/17/06;
2/13/07	[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 § 81.347 the table entitled "Virginia - Ozone (8-Hour
Standard)" is amended by revising the entry for the Richmond-Petersburg,
VA Area to read as follows:

§ 81.347              Virginia         

*          *          *          *          *

		Virginia - Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*          *          *         *         *          *          *

Richmond-Petersburg, VA Area

Charles City County	[Insert date 15 days from date of publication]
Attainment



Chesterfield County	[Insert date 15 days from date of publication]
Attainment



Colonial Heights City	[Insert date 15 days from date of publication]
Attainment



Hanover County	[Insert date 15 days from date of publication]	Attainment



Henrico County	[Insert date 15 days from date of publication]	Attainment



Hopewell City	[Insert date 15 days from date of publication]	Attainment



Petersburg City	[Insert date 15 days from date of publication]
Attainment



Prince George County 	[Insert date 15 days from date of publication]
Attainment



Richmond City	[Insert date 15 days from 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.

									

									

*          *          *         *         *

 It should be noted that the Hanover County Monitor was the design value
monitor during monitoring years 2003-2005 having a design value of 0.082
ppm.      

 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.   

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