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/ November
/ Friday, November 04, 2005
[Federal Register: November 4, 2005 (Volume 70, Number 213)]
[Proposed Rules]
[Page 67109-67120]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no05-13]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[R03-OAR-2005-VA-0013; FRL-7993-6]
Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Redesignation of the Shenandoah National Park Ozone
Nonattainment Area To Attainment and Approval of the Area's Maintenance
Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve 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 Shenandoah National Park area (the SNP area) be
redesignated as attainment for the 8-hour ozone national ambient air
quality standard (NAAQS). In conjunction with its redesignation
request, the VADEQ submitted a SIP revision consisting of a maintenance
plan for the SNP area that provides for continued attainment of the 8-
hour ozone NAAQS for the next 10 years. EPA is proposing to make a
determination that the SNP area has attained the 8-hour ozone NAAQS
based upon three years of complete, quality-assured ambient air quality
ozone monitoring data for 2002-2004. EPA's proposed approval of the 8-
hour ozone redesignation request is based on its
[[Page 67110]]
determination that the SNP area has met the criteria for redesignation
to attainment specified in the Clean Air Act (CAA). EPA is providing
information on the status of its adequacy determination for the motor
vehicle emission budgets (MVEBs) that are identified in the maintenance
plan for the SNP area for purposes of transportation conformity, and is
also proposing to approve those MVEBs. EPA is proposing approval of the
redesignation request and of the maintenance plan revision to the
Virginia SIP in accordance with the requirements of the CAA.
DATES: Written comments must be received on or before December 5, 2005.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R03-OAR-2005-VA-0013 by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
on-line instructions for submitting comments.
Agency Web site: http://docket.epa.gov/rmepub/RME, EPA's electronic
public docket and comment system, is EPA's preferred method for
receiving comments. Follow the on-line instructions for submitting
comments.
E-mail: morris.makeba@epa.gov.
Mail: R03-OAR-2005-VA-0013, Makeba Morris, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to RME ID No. R03-OAR-2005-VA-
0013. EPA's policy is that all comments received will be included in
the public docket without change, and may be made available online at
http://docket.epa.gov/rmepub/, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through RME, regulations.gov
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through RME or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
RME index at http://docket.epa.gov/rmepub/. Although listed in the
index, some information is not publicly available, i.e., 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 in RME
or in hard copy 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 caprio.amy@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' is used, we mean EPA.
Table of Contents
I. What Actions are EPA Proposing to Take?
II. What is the Background for These Proposed Actions?
III. What are the Criteria for Redesignation to Attainment?
IV. Why is EPA Taking These Actions?
V. What Would be the Effect of these Actions?
VI. What is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the Maintenance Plan for the Shenandoah National Park
Area Adequate and Approvable?
VIII. General Information Pertaining to SIP Submittals for the
Commonwealth of Virginia
IX. Proposed Action
X. Statutory and Executive Order Reviews
I. What Actions Are EPA Proposing to Take?
On September 21, 2005, VADEQ formally submitted a request to
redesignate the SNP area from nonattainment to attainment of the 8-hour
NAAQS for ozone. On September 23, 2005, Virginia submitted a
maintenance plan for the SNP area as a SIP revision, to ensure
continued attainment over the next 10 years. The SNP area is composed
of those portions of Page and Madison Counties located within the
boundaries of Shenandoah National Park. It is currently designated as a
basic 8-hour ozone nonattainment area. EPA is proposing to determine
that the SNP area has attained the 8-hour ozone NAAQS and that it has
met the requirements for redesignation pursuant to section 107(d)(3)(E)
of the CAA. EPA is, therefore, proposing to approve the redesignation
request to change the designation of the SNP area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve
the maintenance plan SIP revision for the area, such approval being one
of the CAA requirements for approval of a redesignation request. The
maintenance plan is designed to ensure continued attainment in the SNP
area for the next 10 years. Additionally, EPA is announcing its action
on the adequacy process for the MVEBs identified in the maintenance
plan, and proposing to approve the MVEBs identified for volatile
organic compounds (VOC) and nitrogen oxides (NOX) for the
SNP area for transportation conformity purposes.
II. What Is the Background for These Proposed Actions?
A. General
Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NOX and VOC
are referred to as precursors of ozone. The CAA establishes a process
for air quality management through the attainment and maintenance of
the NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. EPA designated, as
nonattainment, any area violating the 8-hour ozone NAAQS based on the
air quality data for the three years of 2001-2003. These were the most
recent three years of data at the time EPA designated 8-hour areas. The
SNP area was designated as basic 8-hour ozone nonattainment status in a
Federal Register notice signed on April 25, 2004
[[Page 67111]]
and published on April 30, 2004 (69 FR 23857).
The CAA, Title I, part D, contains two sets of provisions--subpart
1 and subpart 2--that address planning and control requirements for
nonattainment areas. Subpart 1(which EPA refers to as ``basic''
nonattainment) contains general, less prescriptive requirements for
nonattainment areas for any pollutant--including ozone--governed by a
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment)
provides more specific requirements for ozone nonattainment areas. Some
8-hour ozone nonattainment areas are subject only to the provisions of
subpart 1. Other areas are also subject to the provisions of subpart 2.
Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004,
an area was classified under subpart 2 based on its 8-hour ozone design
value (i.e., the 3-year average annual fourth-highest daily maximum 8-
hour average ozone concentration), if it had a 1-hour design value at
or above 0.121 ppm (the lowest 1-hour design value in the CAA for
subpart 2 requirements). All other areas are covered under subpart 1,
based upon their 8-hour design values. In 2004, the SNP area was
designated a basic 8-hour ozone nonattainment area based upon air
quality monitoring data from 2001-2003, and is subject to the
requirements of subpart 1.
Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentrations is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857, (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50. The ozone
monitoring data from the 3-year period of 2002-2004 indicates that the
SNP area has a design value of 0.082 ppm. Therefore, the ambient ozone
data for the SNP area indicates no violations of the 8-hour ozone
standard. Available preliminary monitoring data for 2005 indicates
continued attainment of the 8-hour ozone standard.
B. The Shenandoah National Park Area
The SNP area consists of those portions of Page and Madison
Counties located within the boundaries of the Shenandoah National Park.
Prior to its designation as an 8-hour ozone nonattainment area, the SNP
area was designated as an attainment area for the 1-hour ozone
nonattainment NAAQS.
On September 21, 2005, the VADEQ requested that the SNP area be
redesignated to attainment for the 8-hour ozone standard. The
redesignation request included 3 years of complete, quality-assured
data for the period of 2002-2004, indicating that the 8-hour NAAQS for
ozone had been achieved for the SNP area. The data satisfies the CAA
requirements when the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration (commonly referred to as the
area's design value) is less than or equal to 0.08 ppm (i.e., 0.084 ppm
when rounding is considered). Under the CAA, a nonattainment area may
be redesignated if sufficient complete, quality-assured data is
available to determine that the area has attained the standard and the
area meets the other CAA redesignation requirements set forth in
section 107(d)(3)(E).
III. What Are the Criteria for Redesignation to Attainment?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, 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.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations'',
Memorandum from Bill Laxton, June 18, 1990;
``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17,
1993;
``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On
or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
``Part D New Source Review (part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May 10,
1995.
IV. Why Is EPA Taking These Actions?
On September 21, 2005, the VADEQ requested redesignation of the SNP
area to attainment for the 8-hour ozone
[[Page 67112]]
standard. On September 23, 2005, the VADEQ submitted a maintenance plan
for the SNP area as a SIP revision, to assure continued attainment over
the next 10 years. EPA has determined that the SNP area has attained
the standard and has met the requirements for redesignation set forth
in section 107(d)(3)(E).
V. What Would Be the Effect of These Actions?
Approval of the redesignation request would change the designation
of the SNP area from nonattainment to attainment for the 8-hour ozone
NAAQS found at 40 CFR part 81. It would also incorporate into the
Virginia SIP a maintenance plan ensuring continued attainment of the 8-
hour ozone NAAQS in the SNP area for the next 10 years. The maintenance
plan includes contingency measures to remedy any future violations of
the 8-hour NAAQS (should they occur), and identifies the MVEBs for
NOX and VOC for transportation conformity purposes for the
years 2004, 2009 and 2015. These MVEBs are displayed in the following
table:
Table 1.--Motor Vehicle Emissions Budgets in Tons Per Day (tpd)
------------------------------------------------------------------------
Year NOX VOC
------------------------------------------------------------------------
2004............................................ 0.075 0.042
2009............................................ 0.057 0.038
2015............................................ 0.035 0.029
------------------------------------------------------------------------
VI. What Is EPA's Analysis of the Commonwealth's Request?
EPA is proposing to determine that the SNP nonattainment area has
attained the 8-hour ozone standard and that all other redesignation
criteria have been met. The following is a description of how the
VADEQ's September 21, 2005 and September 23, 2005 submittals satisfy
the requirements of section 107(d)(3)(E) of the CAA.
A. The Shenandoah National Park Area Has Attained the 8-Hour Ozone
NAAQS
EPA is proposing to determine that the SNP area has attained the 8-
hour ozone NAAQS. For ozone, an area may be considered to be attaining
the 8-hour ozone NAAQS if there are no violations, as determined in
accordance with 40 CFR 50.10 and Appendix I of part 50, based on three
complete, consecutive calendar years of quality-assured air quality
monitoring data. To attain this standard, the 3-year average of the
fourth-highest daily maximum 8-hour average ozone concentrations
measured at each monitor within the area over each year must not exceed
the ozone standard of 0.08 ppm. Based on the rounding convention
described in 40 CFR part 50, appendix I, the standard is attained if
the design value is 0.084 ppm or below. The data must be collected and
quality-assured in accordance with 40 CFR part 58, and recorded in the
Aerometric Information Retrieval System (AIRS). The monitors generally
should have remained at the same location for the duration of the
monitoring period required for demonstrating attainment.
In the SNP area there is one ozone monitor, located in Madison
County/Big Meadows (the Big Meadows Monitor), that measures air quality
with respect to ozone. As part of its redesignation request, Virginia
submitted ozone monitoring data for the years 2002-2004 (the most
recent three years of data available as of the time of the
redesignation request). This data has been quality assured and is
recorded in AIRS. The fourth high 8-hour daily maximum concentrations,
along with the three-year average, are summarized in Table 2.
Table 2.--Shenandoah National Park Nonattainment Area Fourth Highest 8-
Hour Average Values; Big Meadows Monitor, AIRS ID 51-113-0003
------------------------------------------------------------------------
Annual 4th
high
Year reading
(ppm)
------------------------------------------------------------------------
2002........................................................ 0.086
2003........................................................ 0.086
2004........................................................ 0.075
-----------
The average for the 3-year period 2002 through 2004 is 0.082 ppm
------------------------------------------------------------------------
The data for 2002-2004 show that the area has attained the
standard, and preliminary data for the 2005 ozone season show that the
area continues to attain the standard. The data collected at the Big
Meadows monitor satisfies the CAA requirement that 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. The VADEQ's request
for redesignation for the SNP area indicates that the data was quality
assured in accordance with 40 CFR part 58. The VADEQ uses AIRS as the
permanent database to maintain its data and quality assures the data
transfers and content for accuracy. In addition, as discussed below
with respect to the maintenance plan, VADEQ has committed to continue
monitoring in accordance with 40 CFR part 58. In summary, EPA has
determined that the data submitted by Virginia indicates that the SNP
area has attained the 8-hour ozone NAAQS.
B. The Shenandoah National Park Area Has Met All Applicable
Requirements Under Section 110 and Part D of the CAA and the Area Has a
Fully Approved SIP Under Section 110(k) of the CAA
EPA has determined that Virginia has met all SIP requirements for
the SNP area applicable for purposes of redesignation under section 110
of the CAA (General SIP Requirements) and that it meets all applicable
SIP requirements under Part D of Title 1 of the CAA, in accordance with
section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP
is fully approved with respect to all requirements applicable for
purposes of redesignation in accordance with section 107(d)(3)(E)(ii).
In making these proposed determinations, EPA ascertained what
requirements are applicable to the area, and determined that the
applicable portions of the SIP meeting these requirements are fully
approved under section 110(k) of the CAA. We note that SIPs must be
fully approved only with respect to applicable requirements.
The September 4, 1992 Calcagni memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) with respect to the timing of applicable requirements.
Under this interpretation, to qualify for redesignation, states
requesting redesignation to attainment must meet only the relevant CAA
requirements that come due prior to the submittal of a complete
redesignation request. See also Michael Shapiro memorandum, September
17, 1993, and 60 FR 12459, 12465-66, (March 7, 1995) (redesignation of
Detroit-Ann Arbor). Applicable requirements of the CAA that come due
subsequent to the area's submittal of a complete redesignation request
remain applicable until a redesignation is approved, but are not
required as a prerequisite to redesignation. Section 175A(c)of the CAA.
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424,
25427 (May 12, 2003) (redesignation of St. Louis).
1. Section 110 General SIP Requirements
Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control
[[Page 67113]]
measures, means, or techniques, provisions for the establishment and
operation of appropriate devices necessary to collect data on ambient
air quality, and programs to enforce the limitations. The general SIP
elements and requirements set forth in section 110(a)(2) include, but
are not limited to, the following:
Submittal of a SIP that has been adopted by the state
after reasonable public notice and hearing;
Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
Implementation of a source permit program; provisions for
the implementation of Part C requirement (Prevention of Significant
Deterioration (PSD));
Provisions for the implementation of Part D requirements
for New Source Review (NSR) permit programs;
Provisions for air pollution modeling; and
Provisions for public and local agency participation in
planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another state. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants in accordance with the 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 25161). However, the
section 110(a)(2)(D) requirements for a state are not linked with a
particular nonattainment area's designation and classification in that
state. EPA believes that the requirements linked with a particular
nonattainment area's designation and classification are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state.
Thus, we do not believe that these requirements should be construed
to be applicable requirements for purposes of redesignation. In
addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The Commonwealth will still be subject to these
requirements after the SNP area is redesignated. The section 110 and
Part D requirements, which are linked with a particular area's
designation and classification, are the relevant measures to evaluate
in reviewing a redesignation request. This policy is consistent with
EPA's existing policy on applicability of conformity (i.e., for
redesignations) and oxygenated fuels requirement. See Reading,
Pennsylvania, proposed and final rulemakings 61 FR 53174-53176 (October
10, 1996), 62 FR 24816 (May 7, 1997); Cleveland-Akron-Lorain, Ohio,
final rulemaking 61 FR 20458 (May 7, 1996); and Tampa, Florida, final
rulemaking 60 FR 62748 (December 7, 1995). See also the discussion on
this issue in the Cincinnati redesignation 65 FR 37890 (June 19, 2000),
and in the Pittsburgh redesignation 66 FR 50399 (October 19, 2001).
Similarly, with respect to the NOX SIP Call rules, EPA noted
in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the
NOX SIP Call rules are not ``an `applicable requirement' for
purposes of section 110(l) because the NOX rules apply
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
Any section 110 requirements that are linked to the Part D requirements
for 8-hour ozone nonattainment areas are not yet due, because, as we
explain later in this notice, no Part D requirements applicable for
purposes of redesignation under the 8-hour standard became due prior to
submission of the redesignation request.
Because the Virginia SIP satisfies all of the applicable general
SIP elements and requirements set forth in section 110(a)(2), EPA
concludes that Virginia has satisfied the criterion of section
107(d)(3)(E) regarding section 110 of the Act.
2. Part D Nonattainment Area Requirements Under the 8-Hour Standard
The SNP area was designated a basic nonattainment area for the 8-
hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of
Part D, set forth the basic nonattainment requirements for all
nonattainment areas. Since the SNP area was in attainment for the 1-
hour standard at the time of its designation as a basic 8-hour ozone
nonattainment area on April 30, 2004, no Part D submittals under the 1-
hour standard were required or made for this area.
Section 182 of the CAA, found in subpart 2 of part D, establishes
additional specific requirements depending on the area's nonattainment
classification. The SNP area was classified as a subpart 1
nonattainment area; therefore, no subpart 2 requirements apply to this
area.
With respect to the 8-hour standard, EPA proposes to determine that
the Virginia SIP meets all applicable SIP requirements under Part D of
the CAA, because no 8-hour ozone standard Part D requirements
applicable for purposes of redesignation became due prior to submission
of the area's redesignation request. Because the Commonwealth submitted
a complete redesignation request for the SNP area prior to the deadline
for any submissions required under the 8-hour standard, we have
determined that the part D requirements do not apply to the SNP area
for the purposes of redesignation.
In addition to the fact that Part D requirements applicable for
purposes of redesignation did not become due prior to submission of the
redesignation request, EPA believes it is reasonable to interpret the
general conformity and NSR requirements as not requiring approval prior
to redesignation.
With respect to section 176, Conformity Requirements, section
176(c) of the CAA requires states to establish criteria and procedures
to ensure that Federally supported or funded projects conform to the
air quality planning goals in the applicable SIP. The requirement to
determine conformity applies to transportation plans, programs, and
projects developed, funded or approved under Title 23 U.S.C. and the
Federal Transit Act (``transportation conformity'') as well as to all
other Federally supported or funded projects (``general conformity'').
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required the EPA to promulgate.
EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) since state conformity rules
are still required after redesignation and Federal conformity rules
apply where state rules have not been approved. See Wall v. EPA, 265 F.
3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. See
also 60 FR 62748 (Dec. 7, 1995).
EPA has also determined that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without Part D NSR in effect,
[[Page 67114]]
because PSD requirements will apply after redesignation. The rationale
for this view is described in a memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, dated October 14, 1994, entitled,
``Part D NSR Requirements or Areas Requesting Redesignation to
Attainment.'' Virginia has demonstrated that the area will be able to
maintain the standard without Part D NSR in effect in the SNP area, and
therefore, Virginia need not have a fully approved Part D NSR program
prior to approval of the redesignation request. Virginia's SIP-approved
PSD program will become effective in the area upon redesignation to
attainment in the SNP area. See rulemakings for Detroit, MI (60 FR
12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458,
20469-70, May 7, 1996); Louisville, KY (66 FR 53665, October 23, 2001);
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
3. The Area Has a Fully Approved SIP for the Purposes of Redesignation
EPA has fully approved the Virginia SIP for the purposes of
redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action. See 68 FR 25425
(May 12, 2003) and citations therein. The SNP area was in attainment
for the 1-hour standard at the time of its designation as a basic 8-
hour ozone nonattainment area on April 30, 2004. Because the area had
not previously been designated as nonattainment, no Part D SIP
submittals were previously required. Because there are no current SIP
submission requirements applicable for the purposes of redesignation of
the SNP area, the applicable implementation plan satisfies all
pertinent SIP requirements. As indicated previously, EPA believes that
the section 110 elements not connected with Part D nonattainment plan
submissions and not linked to the area's nonattainment status are not
applicable requirements for purposes of redesignation. EPA also
believes that no 8-hour Part D requirements applicable for purposes of
redesignation have yet become due for the SNP area, and therefore they
need not be approved into the SIP prior to redesignation.
4. The Air Quality Improvement in the Shenandoah National Park Area Is
Due to Permanent and Enforceable Reductions in Emissions Resulting From
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Reductions
EPA believes that the Commonwealth has demonstrated that the
observed air quality improvement in the area is due to permanent and
enforceable reductions in emissions resulting from implementation of
the SIP, Federal measures, and other state-adopted measures. Emissions
reductions attributable to these rules are shown in Table 3. It should
be noted that within the SNP area boundaries, no point sources with
emissions greater than 10 tons per year (tpy) of either VOC or
NOX exist, therefore point source emissions equal zero.
Table 3.--Total VOC and NOX Emissions for 2002 and 2004 (tpd)
----------------------------------------------------------------------------------------------------------------
Year Point Area\*\ Nonroad Mobile Total
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (VOC)
---------------------------------------------------------------------
Year 2002................................. 0 0.390 0.182 0.052 0.624
Year 2004................................. 0 0.375 0.162 0.042 0.579
Diff. (02-04)............................. 0 -0.014 -0.020 -0.010 -0.044
----------------------------------------------------------------------------------------------------------------
Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................ 0 0.212 0.145 0.089 0.446
Year 2004................................. 0 0.204 0.136 0.075 0.415
Diff. (02-04)............................. 0 -0.008 -0.009 -0.014 -0.031
----------------------------------------------------------------------------------------------------------------
\*\ Area source category includes emissions from motor vehicle refueling.
Between 2002 and 2004, VOC emissions were reduced by 0.044 tpd, and
NOX emissions were reduced by 0.031 tpd, due to the
following permanent and enforceable measures implemented or in the
process of being implemented in the SNP area:
Programs Currently in Effect
(a) National Low Emission Vehicle (NLEV);
(b) Motor vehicle fleet turnover with new vehicles meeting the Tier
2 standards; and,
(c) Low-sulfur gasoline.
Virginia has demonstrated that the implementation of permanent
enforceable emissions controls have reduced local VOC and
NOX emissions. Nearly all of these reductions are
attributable to mobile source emission controls such as NLEV and Tier I
programs. These mobile programs produced 0.010 tpd of VOC reductions
and 0.014 tpd of NOX reductions.
Additionally, Virginia has indicated in its submittal that the
NOX SIP Call took effect in 2004. While there are no subject
sources currently located in the SNP area, Virginia's redesignation
request explains that the SNP area indirectly benefits in terms of
improved air quality due to this program. The VADEQ estimates that
between 2003 and 2004, emissions of NOX were reduced from
facilities located within Virginia and subject to the NOX
SIP Call by approximately 7,400 tons during the ozone season (May 1st
through September 30th). The VADEQ believes that these emission
reductions, which are taking place outside the SNP area, are
significant in improving the SNP area's air quality.
Other regulations, such as the non-road diesel, 69 FR 39858 (June
29, 2004), the heavy duty engine and vehicle standards, 66 FR 5002
(January 18, 2001) and the new Tier 2 tailpipe standards for
automobiles, 65 FR 6698 (January 10, 2000), are also expected to
greatly reduce emissions throughout the country and thereby reduce the
transported emissions impacting the SNP area monitor. The Tier 2
standards came into effect in 2004, and by 2030, EPA expects that the
new Tier 2 standards will reduce NOX emissions by about 74
percent. EPA believes that permanent and enforceable emissions
reductions are the cause of the long-term improvement in ozone levels
and are the cause of the area achieving
[[Page 67115]]
attainment of the 8-hour ozone standard.
5. The Shenandoah National Park Area Has a Fully Approved Maintenance
Plan Pursuant to Section 175A of the CAA
In conjunction with its request to redesignate the SNP area to
attainment status, Virginia submitted a SIP revision to provide for
maintenance of the 8-hour ozone NAAQS in the area for at least 10 years
after redesignation.
What Is Required in a Maintenance Plan?
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the Commonwealth must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the
next 10-year period following the initial 10-year period. To address
the possibility of future NAAQS violations, the maintenance plan must
contain such contingency measures, with a schedule for implementation,
as EPA deems necessary to assure prompt correction of any future 8-hour
ozone violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni memorandum dated September 4, 1992, provides
additional guidance on the content of a maintenance plan. An ozone
maintenance plan should address the following provisions:
(a) An attainment emissions inventory;
(b) A maintenance demonstration;
(c) A monitoring network;
(d) Verification of continued attainment; and
(e) A contingency plan.
Analysis of the Shenandoah National Park Area Maintenance Plan
(a) Attainment Inventory--An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. The VADEQ determined that the appropriate
attainment inventory year is 2004. That year establishes a reasonable
year within the 3-year block of 2002-2004 as a baseline and accounts
for reductions attributable to implementation of the CAA requirements
to date.
The VADEQ prepared comprehensive VOC and NOX emissions
inventories for the SNP area, including area, mobile on-road, and
mobile non-road sources for a base year of 2002. The SNP area does not
have any point sources with actual emissions greater than 10 tpy,
therefore they were not included in the emissions inventory (see the
point source discussion). All inventories are based on actual emissions
for a ``typical summer day'' and consist of a list of sources and their
associated emissions. An attainment year of 2004 was used for the SNP
area since it is a reasonable year within the 3-year block of 2002-2004
and accounts for reductions attributable to implementation of the CAA
requirements to date.
To develop the NOX and VOC base year emissions
inventories, VADEQ used the following approaches and sources of data:
(i) Point source emissions--The SNP area is rural and considered a
Class I area. No industrial facilities exist within the Shenandoah
National Park boundaries. Also, there are no other point sources, such
as those used for heating purposes, with actual emissions of more than
10 tpy of either NOX or VOC. A complete point source
emissions inventory may be found in Air Emissions Inventory for
Shenandoah National Park, which is in Appendix B of both the
maintenance plan and the redesignation request that are in the docket
for this proposed action. The registration database used and maintained
by VADEQ also does not contain any sources emitting more than 10 tpy of
ozone precursors. Because the SNP area lies solely within the
boundaries of Shenandoah National Park, EPA believes VADEQ's assumption
that there will be no point source growth in this inventory area is
reasonable.
(ii) Area source emissions--The area source emissions were
developed using the 2002 periodic year stationary area source emissions
inventories along with growth factors. Before attempting to calculate
the growth factors, VADEQ determined the appropriate annual growth rate
representative of each industry or indicator. ``Growth Rate'' refers to
the annual percentage of growth that occurs in a category per year. The
area source growth rate estimates also involve the use of current local
source data, including area populations and employment data by source
type.
The 2002 emissions data for forest fires was developed to estimate
wildfire emissions. However, 2002 was not considered a typical year for
wildfires. The VADEQ stated that an analysis of 10 years of fire data
was used to develop a ``typical'' year's estimates for wildfire
emissions in the SNP area. This ``typical'' year is approximately 20
percent less than actual emissions estimated for 2002. Based on this
information, the SNP area wildfire data were estimated by decreasing
the emissions from 2002 downward 20 percent. It should be noted that
the Shenandoah National Park has a fire management plan that looks
forward 5 years and recommends prescribed burning for the health and
well being of the wilderness. These 5-year plans are conservative in
nature; generally weather and resource constraints do not allow the
full implementation of all planned fires in any year. The 5-year plan
tries to manage prescribed burning throughout the Shenandoah National
Park; therefore assuming a growth factor larger than 1.0000 would
overestimate emissions from this category.
(iii) On-road mobile source emissions--The process of estimating
on-road mobile source emissions consists of two components: Vehicular-
related activity (i.e., VMT) and an average rate of pollutant produced
as a result of a particular level of activity. The SNP area traffic
data was obtained from the report entitled, ``NPS Traffic Monitoring
Program, Coverage Count, and Data Reporting Project for Shenandoah
National Park,'' dated March 12, 2004, which is in Appendix B of both
the maintenance plan and the redesignation request that are in the
docket for this proposed action. This report included VMT for 5 roadway
segments within Shenandoah National Park. Since the SNP area only
includes the portion of Shenandoah National Park within the boundaries
of Page and Madison Counties, the VMT was adjusted downward to exclude
that occurring outside the SNP area boundary. Based on information
found in the previously cited document, vehicle travel through the Park
appears to have been declining in recent years. A pollutant emission
rate, associated with these particular levels of activity, was
estimated using MOBILE6.2 emissions factors. The VADEQ has provided
detailed data summaries to document the calculations of mobile on-road
VOC and NOX emissions for 2002, as well as for the
projection years of 2004, 2009, and 2015 (shown in tables 4 and 5
below). The mobile on-road source emissions projections include the
National Low Emissions Vehicle Program (NLEV), the 2004 Tier 2 and Low
Sulfur Gasoline Rule, the 2004 and 2007 Heavy-Duty Diesel Vehicle
Rules, and the 2006 Low Sulfur Diesel Rule.
(iv) Mobile non-road emissions--The mobile non-road emissions were
calculated using the NONROAD2004
[[Page 67116]]
model, which incorporates the projected emission reductions resulting
from EPA's Clean Air Non-road Diesel Rule. The mobile non-road
emissions calculated by the model were scaled down based on equipment
population data to account for a growth factor of 1.0 in the non-road
category. The assumption of no growth is supported by the very nature
of the Shenandoah National Park, which strives to minimize the human
footprint on the wilderness area, as well as the visitation data that
shows a declining trend in Shenandoah National Park visitors since
1993.
The 2004 attainment year VOC and NOX emissions for the
SNP area are summarized along with the 2009 and 2015 projected
emissions for this area in tables 4 and 5 below, which covers the
demonstration of maintenance for this area. EPA has concluded that
Virginia has adequately derived and documented the 2004 attainment year
VOC and NOX emissions for this area.
(b) Maintenance Demonstration--On September 23, 2005, the VADEQ
submitted a SIP revision to supplement its September 21, 2005
redesignation request. The submittal by VADEQ consists of the
maintenance plan as required by section 175A of the CAA. This plan
shows maintenance of the 8-hour ozone NAAQS by demonstrating that
current and future emissions of VOC and NOX remain at or
below the attainment year 2004 emissions levels throughout the SNP area
through the year 2015. A maintenance demonstration need not be based on
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001); Sierra Club v.
EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100
(October 19, 2001), 68 FR 25430-32 (May 12, 2003).
Tables 4 and 5 specify the VOC and NOX emissions for the
SNP area for 2004, 2009, and 2015. The VADEQ chose 2009 as an interim
year in the 10-year maintenance demonstration period to demonstrate
that the VOC and NOX emissions are not projected to increase
above the 2004 attainment level during the time of the 10-year
maintenance period.
Table 4.--Total VOC Emissions for 2004-2015 (tpd)
----------------------------------------------------------------------------------------------------------------
2004 VOC 2009 VOC 2015 VOC
Source category emissions emissions emissions
----------------------------------------------------------------------------------------------------------------
Mobile \1\................................................ 0.042 0.028 0.019
Nonroad................................................... 0.162 0.109 0.081
Area \2\.................................................. 0.375 0.378 0.383
Point..................................................... 0 0 0
-----------------------------------------------------
Total................................................. 0.579 0.514 0.483
----------------------------------------------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
\2\ Includes vehicle refueling emissions.
Table 5.--Total NOX Emissions 2004-2015 (tpd)
----------------------------------------------------------------------------------------------------------------
2004 NOX 2009 NOX 2015 NOX
Source category emissions emissions emissions
----------------------------------------------------------------------------------------------------------------
Mobile1................................................... 0.075 0.047 0.025
Nonroad................................................... 0.136 0.110 0.077
Area...................................................... 0.204 0.204 0.204
Point..................................................... 0 0 0
-----------------------------------------------------
Total................................................. 0.415 0.361 0.306
----------------------------------------------------------------------------------------------------------------
\1\ Includes transportation conformity provisions.
Additionally, the following mobile programs are either effective or
due to become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:
Heavy duty diesel on-road (2004/2007) and low-sulfur on-
road (2006); 66 FR 2001 (January 18, 2001); and
Non-road emissions standards (2008) and off-road diesel
fuel (2007/2010); 69 FR 39858 (June 29, 2004).
In addition to the permanent and enforceable measures, the Clean
Air Interstate Transport Rule (CAIR), promulgated May 12, 2005, (70 FR
25161) should have positive impacts on the Commonwealth's air quality.
CAIR, which will be implemented in the eastern portion of the country
in two phases (2009 and 2015) should reduce long range transport of
ozone precursors, which will have a beneficial effect on the air
quality in the SNP area.
Based upon the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that VADEQ has successfully demonstrated that the 8-hour
ozone standard should be maintained in the SNP area.
(c) Monitoring Network--There is currently one monitor measuring
ozone in the SNP area. Virginia and the National Park Service, which
operates the Big Meadows monitoring station, will continue to operate
its current air quality monitor in accordance with 40 CFR part 58.
Should measured mobile source parameters change significantly over
time, the Commonwealth will perform a saturation monitoring study to
determine the need for, and location of, additional permanent monitors.
(d) Verification of Continued Attainment--The Commonwealth of
Virginia has the legal authority to implement and enforce specified
measures necessary to attain and maintain the NAAQS. Additionally,
federal programs such as the NLEV program, Tier2/Low Sulfur Gasoline
Rule, 2007 On-Road Diesel Engine Rule, and Federal Non-road Engine/
Equipment Rules will continue to be implemented on a national level.
These programs help provide the reductions necessary for the SNP area
to maintain attainment.
In addition to maintaining the key elements of its regulatory
program, the Commonwealth will acquire ambient and source emissions
data to track attainment and maintenance. The VADEQ will track the
progress of the maintenance demonstration by
[[Page 67117]]
periodically updating the emissions inventory. This tracking will
consist of annual and periodic evaluations. The annual evaluation will
consist of checks on key emissions trend indicators such as the annual
emissions update of stationary sources, the Highway Performance
Monitoring System (HPMS) VMT data reported to the Federal Highway
Administration, and other growth indicators. These indicators will be
compared to the growth assumptions used in the plan to determine if the
predicted versus the observed growth remains relatively constant. The
Commonwealth will also develop and submit comprehensive tracking
inventories to EPA every three years during the maintenance plan
period. For the purpose of performing this tracking function for point
sources, the Commonwealth will retain the annual emission statement
requirements for the maintenance area (9 VAC 5-20-160).
(e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the Act requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the Commonwealth will promptly correct a
violation of the NAAQS that occurs after redesignation. The maintenance
plan should identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measures
that would be adopted and implemented, and the schedule indicating the
time frame by which the state would adopt and implement the measure(s).
The ability of the SNP area to stay in compliance with the 8-hour
ozone standard after redesignation depends upon VOC and NOX
emissions in the area remaining at or below 2004 levels. The
Commonwealth's maintenance plan projects VOC and NOX
emissions to decrease and stay below 2004 levels through the year 2015.
The Commonwealth's maintenance plan lays out two situations where the
need to adopt and implement a contingency measure to further reduce
emissions would be triggered. Those situations are as follows:
(i) An actual increase of the VOC or NOX emissions above
the 2004 attainment levels is identified or predicted through the
development of the comprehensive periodic tracking inventories--The
maintenance plan states that the VADEQ will monitor the observed growth
rates for VMT, population, and point source VOC and NOX
emissions on a yearly basis which will serve as an early warning
indicator of the potential for a violation. The plan also states that
comprehensive tracking inventories will also be developed every 3 years
using current EPA-approved methods to estimate emissions, concentrating
on areas identified in the less rigorous yearly evaluations as being
potential problems. If the 2004 attainment level emissions for VOC or
NOX is exceeded or is predicted to be exceeded, the
following measure will be implemented:
Preparation of a complete and thorough VOC and
NOX emission inventory for the current year.
(ii) In the event that a violation of the 8-hour ozone standard
occurs at the Madison County/Big Meadows monitor--The maintenance plan
states that in the event that a violation of the ozone standard occurs
at the Big Meadows monitor, the Commonwealth of Virginia, in
consultation with EPA Region III and the Shenandoah National Park, will
implement one of the following measures:
The implementation of Stage I vapor recovery on the
gasoline stations located in the SNP area;
The Shenandoah National Park would expand their
implementation of a series of voluntary, episodic control measures
through an Air Quality Action Day Program (AQADP). The program will be
based upon ozone forecasts created for the Shenandoah National Park by
VADEQ meteorological staff. The AQADP would be operated by the
Shenandoah National Park in partnership with the VADEQ. The VADEQ would
issue an Air Quality Action Day forecast when 8-hour ozone levels are
predicted to exceed 0.08 ppm. The VADEQ would notify the Shenandoah
National Park representatives via email no later than 3 p.m. of the
afternoon before the exceedance is forecast. This information would
also be provided to major media and other interested parties. The
information would be included on the VADEQ Web site, http://www.deq.virginia.gov/airquality.
On days when 8-hour ozone levels are
forecast to exceed 0.08 ppm (code orange or code red days), the
Shenandoah National Park would implement the following actions or
similar actions deemed appropriate by the park Superintendent:
(1) Encourage employees to decrease vehicle use by car pooling and
reducing the number of non-essential trips; (2) Postpone or decrease
the use of mowers, weed eaters, chainsaws, electroshockers, and other
similar gasoline engine equipment until the ozone level drops; (3)
Postpone painting projects that use oil based paints or solvents; and
(4) Encourage refueling of vehicles in the early morning or late
evening hours.
The Commonwealth would implement of one or more of the
following Virginia's area source VOC regulations throughout the entire
SNP area: Emission Standards for Portable Fuel Container Spillage (9
VAC 5 Chapter 40, Article 42); Emission Standards for Mobile Equipment
Repair and Refinishing Operations (9 VAC 5 Chapter 40, Article 48);
Emission Standards for Architectural and Industrial Maintenance
Coatings (9 VAC 5 Chapter 40, Article 49); Solvent Cleaning (9 VAC 5
Chapter 40 Article 47); and Emission Standards for Consumer Products (9
VAC 5 Chapter 40, Article 50).
The following schedule for adoption, implementation and compliance
applies to the contingency measures concerning the option of
implementing either Stage I vapor recovery requirements or one or more
area source VOC regulations.
Notification received from EPA that a contingency measure
must be implemented , or three months after a recorded violation;
Applicable regulation to be adopted 6 months after this
date;
Applicable regulation to be implemented 6 months after
adoption; \1\
---------------------------------------------------------------------------
\1\ In the event that implementation of Stage I vapor recovery
is selected as a contingency measure, Virginia would notify all
sources located in the SNP area within 6 months after notification
received from EPA that the contingency measure must be implemented,
or within three months after a recorded violation. The newly subject
Stage I vapor recovery sources would be required to comply with
Stage I vapor recovery requirements no later than 12 months from the
date VADEQ adopts the regulation.
---------------------------------------------------------------------------
Compliance with regulation to be achieved within 12 months
of adoption.
The following schedule for adoption, implementation and compliance
applies to the contingency measures concerning the option of
implementing an AQADP.
Implementation of meteorological forecasts for the SNP
area commencing 60 days after a recorded violation.
Implementation of the AQADP, based on meteorological
forecasts created by VADEQ, no later than 60 days after VADEQ notifies
the SNP Superintendent that the meteorological forecasts are available.
The maintenance plan adequately addresses the five basic components
of a maintenance plan: attainment inventory, maintenance demonstration,
monitoring network, verification of continued attainment, and a
contingency plan. EPA believes that the maintenance plan SIP revision
[[Page 67118]]
submitted by Virginia for the SNP area meets the requirements of
section 175A of the Act.
VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Maintenance Plan for the Shenandoah National Park Area Adequate
and Approvable?
A. What Are the Motor Vehicle Emissions Budgets (MVEBs)?
Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e. RFP SIPs and attainment demonstration SIPs)
and maintenance plans identify and establish MVEBs for certain criteria
pollutants and/or their precursors to address pollution from on-road
mobile sources. In the maintenance plan the MVEBs are termed ``on-road
mobile source emissions budgets.'' Pursuant to 40 CFR part 93 and
51.112, MVEBs must be established in an ozone maintenance plan. A MVEB
is the portion of the total allowable emissions that is allocated to
highway and transit vehicle use and emissions. A MVEB serves as a
ceiling on emissions from an area's planned transportation system. The
MVEB concept is further explained in the preamble to the November 24,
1993, transportation conformity rule (58 FR 62188). The preamble also
describes how to establish and revise the MVEBs in control strategy
SIPs and maintenance plans.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
or reasonable progress towards the national ambient air quality
standards. If a transportation plan does not ``conform,'' most new
projects that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a state implementation plan.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB budget
contained therein ``adequate'' for use in determining transportation
conformity. After EPA affirmatively finds the submitted MVEB is
adequate for transportation conformity purposes, that MVEB can be used
by state and Federal agencies in determining whether proposed
transportation projects ``conform'' to the state implementation plan as
required by section 176(c) of the CAA. EPA's substantive criteria for
determining ``adequacy'' of a MVEB are set out in 40 CFR 93.118(e)(4).
EPA's process for determining ``adequacy'' consists of three basic
steps: public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision''. This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and Miscellaneous
Revisions for Existing Areas; Transportation Conformity Rule
Amendments--Response to Court Decision and Additional Rule Change'' on
July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in
making its adequacy determinations.
The MVEBs for the SNP area are listed in Table 1 of this document
for the 2004, 2009, and 2015 years and are the projected emissions for
the on-road mobile sources plus any portion of the safety margin
allocated to the MVEBs. These emission budgets, when approved by EPA,
must be used for transportation conformity determinations.
B. What Is a Safety Margin?
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2015 safety
margin: The SNP area first attained the 8-hour ozone NAAQS during the
2002 to 2004 time period. The Commonwealth used 2004 as the year to
determine attainment levels of emissions for the SNP area. The total
emissions from area, mobile on-road, and mobile non-road sources in
2004 equaled 0.579 tpd of VOC and 0.415 tpd of NOX. The
VADEQ projected emissions out to the year 2015 and projected a total of
0.493 tpd of VOC and 0.316 tpd of NOX from all sources in
the SNP area. The safety margin for the SNP area for 2015 would be the
difference between these amounts, or 0.086 tpd of VOC and 0.099 tpd of
NOX. The emissions up to the level of the attainment year
including the safety margins are projected to maintain the area's air
quality consistent with the 8-hour ozone NAAQS. The safety margin is
the extra emissions reduction below the attainment levels that can be
allocated for emissions by various sources as long as the total
emission levels are maintained at or below the attainment levels. Table
6 shows the safety margins for the 2009 and 2015 years.
Table 6.--2009 and 2015 Safety Margins for the Shenandoah National Park
Area
------------------------------------------------------------------------
VOC NOX
Inventory year emissions emissions
(tpd) (tpd)
------------------------------------------------------------------------
2004 Attainment................................ 0.0579 0.415
2009 Interim................................... 0.0525 0.371
2009 Safety Margin............................. 0.054 0.044
2004 Attainment................................ 0.579 0.415
2015 Final..................................... 0.493 0.316
2015 Safety Margin............................. 0.086 0.099
------------------------------------------------------------------------
The VADEQ allocated 0.010 tpd of the safety margin to both the 2009
interim VOC projected on-road mobile source emissions projection and
the 2009 interim NOX projected on-road mobile source
emissions projection to arrive at the 2009 MVEBs. For the 2015 MVEBs
the VADEQ allocated 0.010 tpd NOX and 0.010 tpd VOC from the
2015 safety margins to arrive at the 2015 MVEBs. Once allocated to the
mobile source budgets these portions of the safety margins are no
longer available, and may no longer be allocated to any other source
category. Table 7 shows the final 2009 and 2015 MVEBS for the SNP area.
Table 7.--2009 and 2015 Final MVEBs for the Shenandoah National Park
Area
------------------------------------------------------------------------
VOC NOX
Inventory year emissions emissions
(tpd) (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile source projected 0.028 0.047
emissions......................................
2009 Safety Margin Allocated to MVEBs........... 0.010 0.010
2009 MVEBs...................................... 0.038 0.057
2015 projected on-road mobile source projected 0.019 0.025
emissions......................................
2015 Safety Margin Allocated to MVEBs........... 0.010 0.010
2015 MVEBs...................................... 0.029 0.035
------------------------------------------------------------------------
[[Page 67119]]
C. Why Are the MVEBs Approvable?
The 2004, 2009 and 2015 MVEBs for the SNP area are approvable
because the MVEBs for NOX and VOC, including the allocated
safety margins, continue to maintain the total emissions at or below
the attainment year inventory levels as required by the transportation
conformity regulations.
D. What Is the Adequacy and Approval Process for the MVEBs in the
Shenandoah National Park Area Maintenance Plan?
The MVEBs for the SNP area maintenance plan are being posted to
EPA's conformity Web site concurrent with this proposal. The public
comment period will end at the same time as the public comment period
for this proposed rule. In this case, EPA is concurrently processing
the action on the maintenance plan and the adequacy process for the
MVEBs contained therein. In this proposed rule, EPA is proposing to
find the MVEBs adequate and also proposing to approve the MVEBs as part
of the maintenance plan. The MVEBs cannot be used for transportation
conformity until the maintenance plan update and associated MVEBs are
approved in a final Federal Register notice, or EPA otherwise finds the
budgets adequate in a separate action following the comment period.
If EPA receives adverse written comments with respect to the
proposed approval of the SNP MVEBs, or any other aspect of our proposed
approval of this updated maintenance plan, we will respond to the
comments on the MVEBs in our final action or proceed with the adequacy
process as a separate action. Our action on the SNP area MVEBs will
also be announced on EPA's conformity Web site: http://www.epa.gov/oms/traq
, (once there, click on the ``Conformity'' button, then look for
``Adequacy Review of SIP Submissions for Conformity'').
VIII. General Information Pertaining to Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed.
Virginia's legislation also provides, subject to certain
conditions, for a penalty waiver for violations of environmental laws
when a regulated entity discovers such violations pursuant to a
voluntary compliance evaluation and voluntarily discloses such
violations to the Commonwealth and takes prompt and appropriate
measures to remedy the violations. Virginia's Voluntary Environmental
Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege
that protects from disclosure documents and information about the
content of those documents that are the product of a voluntary
environmental assessment. The Privilege Law does not extend to
documents or information (1) that are generated or developed before the
commencement of a voluntary environmental assessment; (2) that are
prepared independently of the assessment process; (3) that demonstrate
a clear, imminent and substantial danger to the public health or
environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts. * * *'' The opinion
concludes that ``[r]egarding Sec. 10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by Federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the Clean Air Act, including, for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
IX. Proposed Actions
EPA is proposing to determine that the SNP area has attained the 8-
hour ozone NAAQS. The EPA is also proposing to approve the Commonwealth
of Virginia's September 21, 2005 request for the SNP area to be
designated to attainment of the 8-hour NAAQS for ozone because the
requirements for approval have been satisfied. EPA has evaluated
Virginia's redesignation request 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 area has attained the 8-hour ozone standard. The
final approval of this redesignation request would change the
designation of the SNP area from nonattainment to attainment for the 8-
hour ozone standard. EPA is also proposing to approve the associated
maintenance plan for this area, submitted on September 23, 2005, as a
revision to the Virginia SIP. EPA is proposing to approve the
maintenance plan for the area because it meets the requirements of
section 175A as described more fully above. EPA is also proposing to
approve the MVEBs submitted by Virginia for the area in conjunction
with its redesignation request. EPA is soliciting public comments on
the issues discussed in this document. These comments will be
considered before taking final action.
X. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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
[[Page 67120]]
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 merely proposes to
approve 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. 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 proposed 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 proposes to approve 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 proposed 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
merely proposes to affect 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 proposed rule also is not
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because
it is not economically significant.
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
proposed 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.
This rule proposing to approve the redesignation of the SNP area to
attainment for the 8-hour ozone NAAQS, the associated maintenance plan,
and the MVEBs identified in the maintenance plan, does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 28, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-22031 Filed 11-3-05; 8:45 am]
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