[Federal Register Volume 85, Number 125 (Monday, June 29, 2020)]
[Proposed Rules]
[Pages 38831-38836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13508]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0198; FRL 10010-71-Region 3]


Air Plan Approval; West Virginia; 1997 8-Hour Ozone Standard 
Second Maintenance Plan for the West Virginia Portion of the Wheeling, 
WV-OH Area Comprising Marshall and Ohio Counties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
State of West Virginia. This revision pertains to the West Virginia 
Department of Environmental Protection's (WVDEP) plan for maintaining 
the 1997 8-hour ozone national ambient air quality standards (NAAQS) 
for the West Virginia portion of the Wheeling, WV-OH area (Wheeling 
Area), comprising Marshall and Ohio Counties). This action is being 
taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before July 29, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2020-0198 at https://www.regulations.gov, or via email to 
spielberger.susan@epa.gov. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the For Further Information Contact section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit

[[Page 38832]]

https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2036. Mr. Becoat can also be reached via electronic mail at 
becoat.gregory@epa.gov.

SUPPLEMENTARY INFORMATION: On December 10, 2019, WVDEP submitted a 
revision to the West Virginia SIP to incorporate a plan for maintaining 
the 1997 ozone NAAQS through June 14, 2027, in accordance with CAA 
section 175A.\1\
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    \1\ In its December 10, 2019 submittal, the State consistently 
refers to the Wheeling Area, rather than referring to the West 
Virginia portion of the Wheeling, WV-OH area. While the state's 
terminology is technically incorrect, it is clear that what the 
State refers to as the Wheeling Area is identical to the West 
Virginia portion of the Wheeling, WV-OH area designated by EPA 
pursuant to the 1997 8-Hour ozone NAAQS. See 40 CFR 81.349.
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I. Background

    In 1979, under section 109 of the CAA, EPA established primary and 
secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged 
over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 
(62 FR 38856),\2\ EPA revised the primary and secondary NAAQS for ozone 
to set the acceptable level of ozone in the ambient air at 0.08 ppm, 
averaged over an 8-hour period. EPA set the 8-hour ozone NAAQS based on 
scientific evidence demonstrating that ozone causes adverse health 
effects at lower concentrations and over longer periods of time than 
was understood when the pre-existing 1-hour ozone NAAQS was set. 
Following promulgation of a new or revised NAAQS, EPA is required by 
the CAA to designate areas throughout the nation as attaining or not 
attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated 
Wheeling Area, West Virginia-Ohio (WV-OH), as nonattainment for the 
1997 8-hr ozone NAAQS. The Wheeling Area, WV-OH nonattainment area 
consists of Marshall and Ohio Counties, WV and Belmont County, OH.
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    \2\ In March 2008, EPA completed another review of the primary 
and secondary ozone standards and tightened them further by lowering 
the level for both to 0.075 ppm. 73 FR 16436 (March 27, 2008). 
Additionally, in October 2015, EPA completed a review of the primary 
and secondary ozone standards and tightened them by lowering the 
level for both to 0.70 ppm. 80 FR 65292 (October 26, 2015).
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    Once a nonattainment area has three years of complete, certified 
air quality data that has been determined to attain the NAAQS, and the 
area has met the other criteria outlined in CAA section 
107(d)(3)(E),\3\ the state can submit a request to EPA to redesignate 
the area to attainment. Areas that have been redesignated by EPA from 
nonattainment to attainment are referred to as ``maintenance areas.'' 
One of the criteria for redesignation is to have an approved 
maintenance plan under CAA section 175A. The maintenance plan must 
demonstrate that the area will continue to maintain the standard for 
the period extending 10 years after redesignation, and it must contain 
such additional measures as necessary to ensure maintenance as well 
contingency measures as necessary to assure that violations of the 
standard will be promptly corrected.
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    \3\ The requirements of CAA section 107(d)(3)(E) include 
attainment of the NAAQS, full approval under section 110(k) of the 
applicable SIP, determination that improvement in air quality is a 
result of permanent and enforceable reductions in emissions, 
demonstration that the state has met all applicable section 110 and 
part D requirements, and a fully approved maintenance plan under CAA 
section 175A.
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    On May 15, 2007 (72 FR 27247, effective June 14, 2007), EPA 
approved a redesignation request (and maintenance plan) from WVDEP for 
the Wheeling Area. In accordance with section 175A(b), at the end of 
the eighth year after the effective date of the redesignation, the 
state must also submit a second maintenance plan to ensure ongoing 
maintenance of the standard for an additional 10 years.
    EPA's final implementation rule for the 2008 ozone NAAQS revoked 
the 1997 ozone NAAQS and provided that one consequence of revocation 
was that areas that had been redesignated to attainment (i.e., 
maintenance areas) for the 1997 NAAQS no longer needed to submit second 
10-year maintenance plans under CAA section 175A(b).\4\ However, in 
South Coast Air Quality Management District v. EPA \5\ (South Coast 
II), the United States Court of Appeals for the District of Columbia 
(D.C. Circuit) vacated EPA's interpretation that, because of the 
revocation of the 1997 ozone standard, second maintenance plans were 
not required for ``orphan maintenance areas,'' (i.e., areas like 
Marshall and Ohio Counties) that had been redesignated to attainment 
for the 1997 NAAQS and were designated attainment for the 2008 ozone 
NAAQS. Thus, states with these ``orphan maintenance areas'' under the 
1997 ozone NAAQS must submit maintenance plans for the second 
maintenance period.
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    \4\ See 80 FR 12315 (March 6, 2015).
    \5\ 882 F.3d 1138 (D.C. Cir. 2018).
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    As previously discussed, CAA section 175A sets forth the criteria 
for adequate maintenance plans. In addition, EPA has published 
longstanding guidance that provides further insight on the content of 
an approvable maintenance plan, explaining that a maintenance plan 
should address five elements: (1) An attainment emissions inventory; 
(2) a maintenance demonstration; (3) a commitment for continued air 
quality monitoring; (4) a process for verification of continued 
attainment; and (5) a contingency plan. The Calcagni memo \6\ provides 
that states may generally demonstrate maintenance by either performing 
air quality modeling to show the future mix of sources and emission 
rates will not cause a violation of the NAAQS or by showing that future 
emissions of a pollutant and its precursors will not exceed the level 
of emissions during a year when the area was attaining the NAAQS (i.e., 
attainment year inventory). See Calcagni memo at 9. EPA further 
clarified in three subsequent guidance memos describing ``limited 
maintenance plans'' (LMPs) \7\ that the requirements of CAA section 
175A could be met by demonstrating that the area's design value \8\ was 
well below the NAAQS and that the historical stability of the area's 
air quality levels showed that the area was unlikely to violate the 
NAAQS in the future. Specifically, EPA believes that if the most recent 
air quality design value for the area is at a level that is below 85% 
of the standard, or in this case below 0.071 ppm, then EPA considers 
the state to have met the section 175A requirement for a demonstration 
that the area will maintain the NAAQS for the requisite period. 
Accordingly, on December 10, 2019, WVDEP submitted a second maintenance 
plan LMP for the Wheeling Area, following EPA's LMP guidance and 
demonstrating that the area will

[[Page 38833]]

maintain the 1997 ozone NAAQS through June 14, 2027, i.e., through the 
end of the 20-year maintenance period.
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    \6\ ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (Calcagni Memo).
    \7\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas'' from Lydia Wegman, OAQPS, 
dated August 9, 2001.
    \8\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone nonattainment 
area is the highest design value of any monitoring site in the area.
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II. Summary of SIP Revision and EPA Analysis

    WVDEP's December 10, 2019 SIP submittal outlines a plan for 
continued maintenance of the 1997 ozone NAAQS which addresses the 
criteria set forth in the Calcagni memo as follows.

A. Attainment Emissions Inventory

    A state should develop a comprehensive and accurate inventory of 
actual emissions for an attainment year which identifies the level of 
emissions in the area which is sufficient to maintain the NAAQS. The 
inventory should be developed consistent with EPA's most recent 
guidance. For ozone, the inventory should be based on typical summer 
day's emissions of oxides of nitrogen (NOX) and volatile 
organic compounds (VOC), the precursors to ozone formation. In the 
first maintenance plan for the Wheeling Area, WVDEP used 2004 for the 
attainment year inventory, because 2004 was one of the years in the 
2002-2004 three-year period when the area first attained the 1997 8-
hour ozone NAAQS. The Wheeling Area continued to monitor attainment of 
the 1997 8-hour ozone NAAQS in 2014. Therefore, the emissions inventory 
from 2014 represents emissions levels conducive to continued attainment 
(i.e., maintenance) of the NAAQS. Thus, WVDEP is using 2014 as 
representing attainment level emissions for its second maintenance 
plan. WVDEP used 2014 summer day emissions from EPA's 2014 version 7.0 
modeling platform as the basis for the 2014 inventory presented in 
Table 1.\9\
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    \9\ On April 22, 2020, WVDEP submitted a clarifying letter to 
EPA noting that the headings in Table 4 of its submittal were 
inadvertently titled, ``2014 Summertime Daily NOX 
Emissions (tpd)'' instead of ``2014 Summertime Daily VOC Emissions 
(tpd).'' EPA does not believe that this mislabeling negatively 
impacts proposed approval of this SIP revision.

                             Table 1--2014 Typical Summer Day VOC and NOX Emissions
                                                 [tons/day] \10\
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                     Area                                Source category                VOC             NOX
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Marshall County, WV...........................  Fire............................             0.5             0.0
                                                Nonpoint........................            19.1             3.2
                                                Nonroad.........................             0.4             0.5
                                                Onroad..........................             0.6             4.1
                                                Point...........................             1.0             0.0
                                                                                 -------------------------------
                                                   Subtotal.....................            21.6             7.9
                                                                                 ===============================
Ohio County, WV...............................  Fire............................             0.0             0.0
                                                Nonpoint........................             1.8             2.1
                                                Nonroad.........................             1.0             0.3
                                                Onroad..........................             1.7             1.0
                                                Point...........................             0.1            24.4
                                                                                 -------------------------------
                                                   Subtotal.....................             4.7            27.9
                                                                                 ===============================
Belmont County, OH............................  Fire............................             0.0             0.0
                                                Nonpoint........................             6.2             0.6
                                                Nonroad.........................             1.3             0.4
                                                Onroad..........................             2.0             3.4
                                                Point...........................             0.2             0.2
                                                                                 -------------------------------
                                                   Subtotal.....................             9.7             4.6
                                                                                 ===============================
Wheeling Area, WV-OH..........................     Totals.......................            35.9            40.4
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    The 2014 emissions inventory was prepared by WVDEP and uploaded 
into EPA's Emissions Inventory System (EIS) for inclusion in EPA's 
National Emission Inventory (NEI). The inventory addresses four 
anthropogenic emission source categories: Stationary (point) sources, 
stationary nonpoint (area) sources, nonroad mobile, and on-road mobile 
sources. Point sources are stationary sources that have the potential 
to emit (PTE) more than 100 tons per year (tpy) of VOC, or more than 50 
tpy of NOX, and which are required to obtain an operating 
permit. Data are collected for each source at a facility and reported 
to WVDEP.
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    \10\ Data in Table 1 only includes tons/day. See Tables 3 and 4 
of WVDEP's December 10, 2019 submittal for data in tons/year.
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    The fire emissions sector includes emissions from agricultural 
burning, prescribed fires, wildfires, and other types of fires. The 
nonpoint emissions sector includes emissions from equipment, 
operations, and activities that are numerous and in total have 
significant emissions. Examples include emissions from commercial and 
consumer products, portable fuel containers, home heating, repair and 
refinishing operations, and crematories. The non-road emissions sector 
includes emissions from engines that are not primarily used to propel 
transportation equipment, such as generators, forklifts, and marine 
pleasure craft. The on-road emissions sector includes emissions from 
engines used primarily to propel equipment on highways and other roads, 
including passenger vehicles, motorcycles, and heavy-duty diesel 
trucks. The point source sector includes large industrial operations 
that are relatively few in number but have large emissions, such as 
kraft mills, electrical generating units, and pharmaceutical factories. 
On-road mobile emissions are modelled by WVDEP using EPA's Motor 
Vehicle Emission Simulator (MOVES). WVDEP generates nonroad mobile 
source emissions data through use of EPA's NONROAD2014a model. EPA 
reviewed the supporting documentation

[[Page 38834]]

submitted by WVDEP \11\ and proposes to conclude that the plan's 
inventory is acceptable for the purposes of a subsequent maintenance 
plan under CAA section 175A(b).\12\
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    \11\ See Appendix C of WVDEP's December 10, 2019 submittal.
    \12\ The daily emissions data for 2014 typical summer day VOC 
and NOX emissions in Table 1 were excerpted from: https://www.epa.gov/sites/production/files/2018-11/ozone_1997_naaqs_emiss_inv_data_nov_19_2018_0.xlsx (``2014 2028 area 
emiss by sector'' tab) posted at https://www.epa.gov/ground-level-ozone-pollution/1997-ozonenational-ambient-air-quality-standards-naaqs-nonattainment.
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B. Maintenance Demonstration

    In order to attain the 1997 ozone NAAQS, the three-year average of 
the fourth-highest daily average ozone concentrations (design value, 
DV) at each monitor within an area must not exceed 0.08 ppm. Based on 
the rounding convention described in 40 CFR part 50, appendix I, the 
standard is attained if the DV is 0.084 or below. CAA section 175A 
requires a demonstration that the area will continue to maintain the 
NAAQS throughout the duration of the requisite maintenance period. 
Consistent with the prior guidance documents discussed previously in 
this document, EPA believes that if the most recent DV for the area is 
well below the NAAQS (e.g. below 85%, or in this case below 0.071 ppm), 
the section 175A demonstration requirement has been met, provided that 
Prevention of Significant Deterioration (PSD) requirements, any control 
measures already in the SIP, and any Federal measures remain in place 
through the end of the second 10-year maintenance period (absent a 
showing consistent with section 110(l) that such measures are not 
necessary to assure maintenance).
    For the purposes of demonstrating a stable or improving air quality 
trend, West Virginia used a weighted design value of the most recent 
five design values. The five most recent design values available cover 
the 2012-2018 ambient air monitoring data. This includes 3-year design 
values for 2012-2014, 2013-2015, 2014-2016, 2015-2017, and 2016-2018. 
Data from 2014, 2015, and 2016 was included in three out of five design 
values. Table 2 of this document shows the most recent five years of 
ambient ozone air quality 3-year design values. These design values are 
from EPA's Air Quality System (AQS). The 7th column is a calculated 5-
year weighted design value calculated by West Virginia. This 5-year 
weighted design value was calculated by averaging all the 4th Max Ozone 
values from the years 2012-2018. The 8th column is the 5-year design 
value average calculated by EPA. The 5-year design value average is 
calculated by averaging the design values for 2012-2014, 2013-2015, 
2014-2016, 2015-2017, and 2016-2018. The 5-year weighted design value 
calculated by West Virginia is 0.067 ppm, and the 5-year design value 
calculated by EPA is 0.066 p.m., for the Wheeling Area, both of which 
are below the 0.071 ppm threshold level and 79% of the NAAQS. Table 2 
shows that the most recent five years of ambient ozone air quality 3-
year average DVs for the Wheeling Area continue to be below 85% of the 
1997 ozone NAAQS. It demonstrates that 8-hour ozone air quality levels 
are significantly below the level of the standard.

                                          Table 2--Wheeling Area 8-Hour Ozone Design Values in Part per Million
                                                                          [ppm]
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                                                                                                                                   5-Year
                                                                                                                                   design
                      Site                         2012-2014    2013-2015    2014-2016    2015-2017    2016-2018      5-Year       value      Projected
                                                                                                                     weighted     average        2023
                                                                                                                                   (ppm)
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Wheeling, WV....................................       0.067        0.066        0.068        0.067        0.066        0.067        0.066        0.060
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    For the 2023 projections shown in Table 2, EPA used a 2011-based 
air quality modeling platform, which includes emissions, meteorology, 
and other inputs for 2011 as the base year and emissions for 2023 as 
the future analytic year base case. Specifically, the modeling platform 
included a variety of data that contained information pertaining to the 
modeling domain and simulation period. These include gridded, hourly 
emissions estimates and meteorological data, and boundary 
concentrations. Separate emissions inventories were prepared for the 
2011 base year and the 2023 base case. All other inputs (i.e. 
meteorological fields, initial concentrations, and boundary 
concentrations) were specified for the 2011 base year model application 
and remained unchanged for the future-year model simulations. The 2011 
modeling platform and projected 2023 emissions were used to drive the 
2011 base year and 2023 future case air quality model simulations. The 
2023 projected DV for the Wheeling Area is 0.060 ppm, well below the 
level of the 1997 8-hour ozone NAAQS, 0.08 ppm. Therefore, EPA proposes 
to determine that that future violations of the NAAQS in this area are 
unlikely.

C. Continued Air Quality Monitoring and Verification of Continued 
Attainment

    Once an area has been redesignated to attainment, the state remains 
obligated to maintain an air quality network in accordance with 40 CFR 
part 58, in order to verify the area's attainment status. In the 
December 10, 2019 submittal, West Virginia committed to maintaining an 
appropriate air quality monitoring network, in accordance with 40 CFR 
part 58. West Virginia will continue to conduct ambient ozone air 
quality monitoring in the area throughout the term of the maintenance 
plan to verify continued attainment with the 1997 8-hour ozone NAAQS 
and to protect any applicable PSD increments. WVDEP states that air 
quality measurements will be performed in accordance with appropriate 
regulations and guidance documents along with EPA quality assurance 
requirements, and monitoring procedures will be determined in 
accordance with 40 CFR part 58. WVDEP commits to submitting quality-
assured ozone data to EPA through the AQS and ultimately certified by 
the WVDEP. EPA has analyzed the commitments in the plan and determined 
that they meet the requirements.

D. Contingency Plan

    The contingency plan provisions are designed to promptly correct or 
prevent a violation of the NAAQS that might occur after redesignation 
of an area to attainment. Section 175A of the CAA requires that a 
maintenance plan

[[Page 38835]]

include such contingency measures as EPA deems necessary to assure that 
the state will promptly correct a violation of the NAAQS that occurs 
after redesignation. The maintenance plan should identify the 
contingency measures to be adopted, a schedule and procedure for 
adoption and implementation of the contingency measures, and a time 
limit for action by the state. The state should also identify specific 
indicators to be used to determine when the contingency measures need 
to be adopted and implemented. The maintenance plan must include a 
requirement that the state will implement all pollution control 
measures that were contained in the SIP before redesignation of the 
area to attainment. See section 175A(d) of the CAA. WVDEP's December 
10, 2019 submittal outlines its adopted permanent and Federally 
enforceable control measures in order to regulate emission growth. The 
Wheeling Area's control measures include the permitting regulations and 
PSD measures, which will remain in effect through the maintenance plan 
period. Air permits issued will incorporate applicable PSD, New Source 
Performance Standard, and National Emission Standards for Hazardous Air 
Pollutant requirements.
    WVDEP's December 10, 2019 submittal included the required 
contingency plan, to be implemented in the event of NAAQS violations in 
the future. WVDEP has committed to adopting and implementing one or 
more of the following control measures within three months after 
verification of a monitored ozone standard violation in the Wheeling 
Area: (1) Extend the applicability of the VOC reasonably available 
control technology (RACT) rule to include source categories previously 
excluded (e.g., wastewater treatment facilities); (2) revise permitting 
requirements establishing more stringent emissions control measures 
and/or emissions offsets; (3) implement NOx RACT requirements if 
necessary; (4) develop regulations to establish plant-wide emission 
caps; (5) implement Stage II Vapor Recovery regulations; (6) establish 
a program focusing on increasing the public's understanding of air 
quality issues and increasing support for actions to improve the air 
quality; and (7) initiate voluntary local control measures (e.g., 
bicycle/pedestrian measures, engine idling reduction, partnership with 
ground freight industry, increase compliance with open burning 
restrictions, and school bus engine retrofit program).
    If there is indeed a violation and the DV exceeds the NAAQS, the 
contingency plan will be ``triggered,'' based on the following 
schedule: (1) Quality assurance procedures must confirm the monitored 
violation within 45 days of occurrence; (2) a draft rule would be 
developed by the WVDEP for any regulation chosen, (3) WVDEP will adopt 
the selected control measure(s) as emergency rule(s) which will be 
implemented within six months after adoption and will file the rule(s) 
as legislative rule(s) for permanent authorization by the legislature; 
and (4) for each voluntary measure selected, the WVDEP will initiate 
program development with local governments within the area by the start 
of the following ozone season.
    Furthermore, if the triennial inventories indicate emissions growth 
in excess of 10% of the 2011 base-year inventory or if a monitored 
ozone air quality exceedance pattern indicates that an ozone NAAQS 
violation may be imminent, WVDEP will evaluate existing control 
measures to ascertain if additional regulatory revisions are necessary 
to maintain the ozone standards.
    EPA finds that West Virginia's contingency measures, as well as the 
commitment to continue implementing any SIP requirements, satisfy the 
pertinent requirements of section 175A. Importantly, while EPA notes 
that West Virginia's contingency measures option six (increasing public 
understanding) and seven (voluntary local control measures), are not 
enforceable measures that standing alone are likely to lead to 
reductions in emissions that could promptly correct a violation of the 
NAAQS, their inclusion among other measures that meet that criterion, 
is overall SIP-strengthening, and their inclusion does not alter EPA's 
proposal to find the LMP is fully approvable.

E. Transportation Conformity

    Transportation conformity is required by section 176(c) of the CAA. 
Conformity to a SIP means that transportation activities will not 
produce new air quality violations, worsen existing violations, or 
delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's 
conformity rule at 40 CFR part 93 requires that transportation plans, 
programs and projects conform to SIPs and establish the criteria and 
procedures for determining whether or not they conform. The conformity 
rule generally requires a demonstration that emissions from the 
Regional Transportation Plan (RTP) and the Transportation Improvement 
Program (TIP) are consistent with the motor vehicle emissions budget 
(MVEB) contained in the control strategy SIP revision or maintenance 
plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as ``that 
portion of the total allowable emissions defined in the submitted or 
approved control strategy implementation plan revision or maintenance 
plan for a certain date for the purpose of meeting reasonable further 
progress milestones or demonstrating attainment or maintenance of the 
NAAQS, for any criteria pollutant or its precursors, allocated to 
highway and transit vehicle use and emissions (40 CFR 93.101).''
    Under the conformity rule, LMP areas may demonstrate conformity 
without a regional emission analysis (40 CFR 93.109(e)). However, 
because LMP areas are still maintenance areas, certain aspects of 
transportation conformity determinations still will be required for 
transportation plans, programs and projects. Specifically, for such 
determinations, RTPs, TIPs and transportation projects still will have 
to demonstrate that they are fiscally constrained (40 CFR 93.108), meet 
the criteria for consultation (40 CFR 93.105 and 93.112) and 
Transportation Control Measure implementation in the conformity rule 
provisions (40 CFR 93.113). Additionally, conformity determinations for 
RTPs and TIPs must be determined no less frequently than every four 
years, and conformity of plan and TIP amendments and transportation 
projects is demonstrated in accordance with the timing requirements 
specified in 40 CFR 93.104. In addition, for projects to be approved 
they must come from a currently conforming RTP and TIP (40 CFR 93.114 
and 93.115). The Wheeling Area remains under the obligation to meet the 
applicable conformity requirements for the 1997 8-hour ozone NAAQS.

III. Proposed Action

    EPA's review of WVDEP's December 10, 2019 submittal indicates it 
meets CAA section 175A and all applicable CAA requirements. EPA is 
proposing to approve the LMP for the 1997 8-hour ozone NAAQS for the 
Wheeling Area (comprising Marshall and Ohio Counties), as a revision to 
the West Virginia SIP. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).

[[Page 38836]]

Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this action merely approves state law as meeting Federal requirements 
and does not impose additional requirements beyond those imposed by 
state law. For that reason, this proposed action:

     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, pertaining to West Virginia's 
second maintenance plan for Marshall and Ohio Counties, does not have 
tribal implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: June 17, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2020-13508 Filed 6-26-20; 8:45 am]
BILLING CODE 6560-50-P


