Approval and Promulgation of Air Quality Implementation Plans; Virginia: Determination of Attainment of Ozone Standard and Determination Regarding Applicability of Certain Requirements in the Richmond Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA-076-5022a; FRL-5841-5]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia: Determination of Attainment of Ozone Standard and

Determination Regarding Applicability of Certain Requirements in the

Richmond Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA has determined that the Richmond ozone nonattainment area

has attained the National Ambient Air Quality Standard (NAAQS) for

ozone. This determination is based upon three years of ambient air

monitoring data for the years 1993-95 that demonstrate that the ozone

NAAQS has been attained in this area. EPA has also determined that

Richmond has continued to attain the standard to date. On the basis of

this determination, EPA is also determining that certain reasonable

further progress and attainment demonstration requirements, along with

certain other related requirements, of Part D of Title I of the Clean

Air Act are not applicable to this area as long as this area continues

to attain the ozone NAAQS.

DATES: This final rule is effective July 28, 1997 unless within July

14, 1997,

[[Page 32205]]

adverse or critical comments are received. If the effective date is

delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief,

Ozone/Carbon Monoxide, and Mobile Sources Section, Mailcode 3AT21, U.S.

Environmental Protection Agency--Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania, 19107. Copies of the documents relevant to

this action are available for public inspection during normal business

hours at the Air, Radiation, and Toxics Division, U.S. Environmental

Protection Agency, Region III, 841 Chestnut Building, Philadelphia,

Pennsylvania 19107. Persons interested in examining these documents

should schedule an appointment with the contact person (listed below)

at least 24 hours before the visiting day.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, Ozone/Carbon

Monoxide and Mobile Sources Section (3AT21), U.S. Environmental

Protection Agency--Region III, 841 Chestnut Building, Philadelphia,

Pennsylvania 19107, or by telephone at: (215) 566-2179. Questions may

also be sent via e-mail, to the following address:

Cripps.C[email protected] (Please note that only written

comments can be accepted for inclusion in the docket.)

SUPPLEMENTARY INFORMATION:

I. Background

Subpart 2 of Part D of Title I of the Clean Air Act contains

various air quality planning and State Implementation Plan (SIP)

submission requirements for ozone nonattainment areas. EPA considers it

is reasonable to interpret provisions regarding reasonable further

progress (RFP) and attainment demonstrations, along with certain other

related provisions, so as not to require SIP submissions if an ozone

nonattainment area subject to those requirements is monitoring

attainment of the ozone standard (i.e., attainment of the NAAQS

demonstrated with three consecutive years of complete, quality assured

air quality monitoring data). As described below, EPA has previously

interpreted the general provisions of subpart 1 of part D of Title I

(sections 171 and 172) so as not to require the submission of SIP

revisions concerning RFP, attainment demonstrations, or contingency

measures. As explained in a memorandum dated May 10, 1995, from John S.

Seitz, Director, Office of Air Quality Planning and Standards to the

Regional Air Division Directors, entitled ``Reasonable Further

Progress, Attainment Demonstration, and Related Requirements for Ozone

Nonattainment Areas Meeting the Ozone National Ambient Air Quality

Standard'', EPA concludes that it is appropriate to interpret the more

specific RFP, attainment demonstration and related provisions of

subpart 2 in the same manner.

First, with respect to RFP, section 171(1) states that, for

purposes of part D of Title I, RFP ``means such annual incremental

reductions in emissions of the relevant air pollutant as are required

by this part or may reasonably be required by the Administrator for the

purpose of ensuring attainment of the applicable national ambient air

quality standard by the applicable date.'' Thus, whether dealing with

the general RFP requirement of section 172(c)(2), or the more specific

RFP requirements of subpart 2 for classified ozone nonattainment areas

(such as the 15 percent plan requirement of section 182(b)(1)), the

stated purpose of RFP is to ensure attainment by the applicable

attainment date.1 If an area has in fact attained the

standard, the stated purpose of the RFP requirement will have already

been fulfilled and EPA concludes that the area does not need to submit

revisions providing for the further emission reductions described in

the RFP provisions of section 182(b)(1).

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\1\ EPA notes that paragraph (1) of subsection 182(b) is

entitled ``Plan Provisions for Reasonable Further Progress'' and

that subparagraph (B) of paragraph 182(c)(2) is entitled

``Reasonable Further Progress Demonstration,'' thereby making it

clear that both the 15 percent plan requirement of section 182(b)(1)

and the 3 percent per year requirement of section 182(c)(2) are

specific varieties of RFP requirements.

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EPA notes that it took this view with respect to the general RFP

requirement of section 172(c)(2) in the General Preamble for the

Interpretation of Title I of the Clean Air Act Amendments of 1990 (57

FR 13498 (April 16, 1992)), and it is now extending that interpretation

to the specific provisions of subpart 2. In the General Preamble, EPA

stated, in the context of a discussion of the requirements applicable

to the evaluation of requests to redesignate nonattainment areas to

attainment, that the ``requirements for RFP will not apply in

evaluating a request for redesignation to attainment since, at a

minimum, the air quality data for the area must show that the area has

already attained. Showing that the Commonwealth will make RFP towards

attainment will, therefore, have no meaning at that point.'' (57 FR at

13564.) 2

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\2\ See also ``Procedures for Processing Requests to Redesignate

Areas to Attainment,'' from John Calcagni, Director, Air Quality

Management Division, to Regional Air Division Directors, September

4, 1992, at page 6 (stating that the ``requirements for reasonable

further progress * * * will not apply for redesignations because

they only have meaning for areas not attaining the standard'')

(hereinafter referred to as ``September 1992 Calcagni memorandum'').

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Second, with respect to the attainment demonstration requirements

of section 182(b)(1), an analogous rationale leads to the same result.

Section 182(b)(1) requires that the plan provide for ``such specific

annual reductions in emissions * * * as necessary to attain the

national primary ambient air quality standard by the attainment date

applicable under this Act.'' As with the RFP requirements, if an area

has in fact monitored attainment of the standard, EPA concludes there

is no need for an area to make a further submission containing

additional measures to achieve attainment. This is also consistent with

the interpretation of certain section 172(c) requirements provided by

EPA in the General Preamble to Title I, as EPA stated there that no

other measures to provide for attainment would be needed by areas

seeking redesignation to attainment since ``attainment will have been

reached.'' (57 FR at 13564; see also September 1992 Calcagni memorandum

at page 6.) Upon attainment of the NAAQS, the focus of state planning

efforts shifts to maintenance of the NAAQS and the development of a

maintenance plan under section 175A.

Similar reasoning applies to the contingency measure requirements

of section 172(c)(9). EPA has previously interpreted the contingency

measure requirement of section 172(c)(9) as no longer being applicable

once an area has attained the standard since those ``contingency

measures are directed at ensuring RFP and attainment by the applicable

date.'' (57 FR at 13564; see also September 1992 Calcagni memorandum at

page 6.) Similarly, as the section 172(c)(9) contingency measures are

linked with the RFP requirements of section 182(b)(1), the requirement

no longer applies once an area has attained the standard.

EPA emphasizes that the lack of a requirement to submit the SIP

revisions discussed above exists only for as long as an area designated

nonattainment continues to attain the standard. If EPA subsequently

determines that such an area has violated the NAAQS, the basis for the

determination that the area need not make the pertinent SIP revisions

would no longer exist. The EPA would notify the Commonwealth of that

determination and would also provide notice to the public in the

Federal

[[Page 32206]]

Register. Such a determination would mean that the area would have to

address the pertinent SIP requirements within a reasonable amount of

time, which EPA would establish taking into account the individual

circumstances surrounding the particular SIP submissions at issue.

Thus, a determination that an area need not submit one of the SIP

submittals amounts to no more than a suspension of the requirement for

so long as the area continues to attain the standard.

The Commonwealth must continue to operate an appropriate air

quality monitoring network, in accordance with 40 CFR Part 58, to

verify the attainment status of the area. The air quality data relied

upon to determine that the area is attaining the ozone standard must be

consistent with 40 CFR Part 58 requirements and other relevant EPA

guidance and recorded in EPA's Aerometric Information Retrieval System

(AIRS).

The determinations that are being made by this action are not

equivalent to the redesignation of the area to attainment. Attainment

of the ozone NAAQS is only one of the criteria set forth in section

107(d)(3)(E) that must be satisfied for an area to be redesignated to

attainment. To be redesignated the Commonwealth must submit and receive

full approval of a redesignation request for the area that satisfies

all of the criteria of that section, including the requirement of a

demonstration that the improvement in the area's air quality is due to

permanent and enforceable reductions, that the area has a fully-

approved SIP meeting all of the applicable requirements under section

110 and Part D, and of a fully-approved maintenance plan. On July 26,

1996 the Commonwealth of Virginia submitted a redesignation request and

maintenance plan for the Richmond area.

The redesignation request and maintenance plan is the subject of a

separate rulemaking action.

Furthermore, the determinations of this action will not shield an

area from future EPA action to require emissions reductions from

sources in the area where there is evidence, such as photochemical grid

modeling, showing that emissions from sources in the area contribute

significantly to nonattainment in, or interfere with maintenance by,

other nonattainment areas. EPA has authority under sections

110(a)(2)(A) and 110(a)(2)(D) to require such emission reductions as

necessary and appropriate to deal with transport situations.

II. Analysis of Air Quality Data

EPA has reviewed the ambient air monitoring data for ozone

(consistent with the requirements contained in 40 CFR Part 58 and

recorded in AIRS) for the Richmond moderate ozone nonattainment area in

the Commonwealth of Virginia from 1993 through the present time. On the

basis of that review EPA has concluded that the area attained the ozone

standard during the 1993-95 period and continues to attain the standard

through the present time.

The current design value for the Richmond nonattainment area,

computed using ozone monitoring data for 1994 through 1996, is 116

parts per billion (ppb). The average annual number of expected

exceedances is 0.7 for that same time period. For the 1993 to 1995 time

period, the average annual number of expected exceedances was 1.0, and

the corresponding design value was 124 ppb. An area is considered in

attainment of the standard if the average annual number of expected

exceedances is less than or equal to 1.0. Thus, this areas is no longer

recording violations of the air quality standard for ozone. A more

detailed summary of the ozone monitoring data for the area is provided

in the Technical Support Document (TSD) for this action. A copy of this

TSD is available from the EPA Regional Office listed in the ADDRESSES

section of this document.

EPA's review of this material indicates that the Richmond area

attained the NAAQS for ozone based upon air quality monitoring data for

1993 to 1995 and has continued to attain the standard to date. EPA is

making this determination regarding the applicability of certain

requirements without prior proposal. However, in a separate document in

this Federal Register publication, EPA is proposing to approve the SIP

revision should adverse or critical comments be filed. This action will

be effective July 28, 1997 unless, within 30 days of publication,

adverse or critical comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any and all parties interested in commenting on this action

should do so at this time. If no such comments are received, the public

is advised that this action will be effective on July 28, 1997.

Final Action

EPA has determined that the Richmond ozone nonattainment area has

attained the ozone standard and continues to attain the standard at

this time. As a consequence of this determination, the requirements of

section 182(b)(1) concerning the submission of the 15 percent plan and

ozone attainment demonstration and the requirements of section

172(c)(9) concerning contingency measures are no longer applicable to

the area so long as the area does not violate the ozone standard.

EPA emphasizes that this determination will be contingent upon the

continued monitoring and continued attainment and maintenance of the

ozone NAAQS in the affected area. When and if a violation of the ozone

NAAQS is monitored in the Richmond nonattainment areas (consistent with

the requirements contained in 40 CFR Part 58 and recorded in AIRS), EPA

will provide notice to the public in the Federal Register. Such a

violation would mean that the area would thereafter have to address the

requirements of section 182(b)(1) and section 172(c)(9) since the basis

for the determination that they do not apply would no longer exist.

As a consequence of the determination that these areas have

attained the NAAQS and that the RFP and attainment demonstration

requirements of section 182(b)(1) do not presently apply, the sanctions

and Federal Implementation Plan (FIP) clocks started by EPA on January

20, 1994, for failure to submit the RFP SIP required under section

182(b)(1) are hereby stopped since the deficiency for which the clocks

were started no longer exists.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Administrative Requirements

I. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR

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2214-2225), as revised by a July 10, 1995 memorandum from Mary Nichols,

Assistant Administrator for Air and Radiation. The Office of Management

and Budget (OMB) has exempted this regulatory action from E.O. 12866

review.

II. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000. Today's determination does not create any new requirements, but

suspends the indicated requirements. Therefore, because this action

does not impose any new requirements, I certify that it does not have a

significant impact on any small entities affected.

III. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more.

Under section 205, EPA must select the most cost-effective and

least burdensome alternative that achieves the objectives of the rule

and is consistent with statutory requirements. Section 203 requires EPA

to establish a plan for informing and advising any small governments

that may be significantly or uniquely impacted by the rule. EPA has

determined that the action promulgated does not include a Federal

mandate that may result in estimated costs of $100 million or more to

either State, local, or tribal governments in the aggregate, or to the

private sector. This Federal action does not create any new

requirements, but suspends the indicated requirements. Accordingly, no

additional costs to State, local, or tribal governments, or to the

private sector, result from this action.

IV. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

V. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by August 12, 1997. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

The Administrator's decision to issue a determination that the

Richmond area has attained the NAAQS for ozone and that certain

reasonable further progress and attainment demonstration requirements,

along with certain other related requirements, of Part D of Title I of

the Clean Air Act are not applicable to this area as long as this area

continues to attain the ozone NAAQS will be based on whether it meets

the requirements of section 110(a)(2) (A)-(K) and part D of the Clean

Air Act, as amended, and EPA regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Ozone.

Dated: June 5, 1997.

W. Michael McCabe,

Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart VV--Virginia

2. Section 52.2428 is added to read as follows:

Sec. 52.2428 Control Strategy: Carbon monoxide and ozone.

Determination--EPA has determined that, as of July 28, 1997, the

Richmond ozone nonattainment area, which consists of the counties of

Charles City, Chesterfield, Hanover and Henrico, and of the cities of

Richmond, Colonial Heights and Hopewell, has attained the ozone

standard and that the reasonable further progress and attainment

demonstration requirements of section 182(b)(1) and related

requirements of section 172(c)(9) of the Clean Air Act do not apply to

this area for so long as the Richmond ozone nonattainment area does not

monitor any violations of the ozone standard. If a violation of the

ozone NAAQS is monitored in the Richmond ozone nonattainment area,

these determinations shall no longer apply.

[FR Doc. 97-15567 Filed 6-12-97; 8:45 am]

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