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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIPTRAX No.VA-076-5028; FRL-5904-2]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia: Determination of Attainment of Ozone Standard and

Applicability of Certain Requirements in the Richmond Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA has determined that the Richmond moderate ozone

nonattainment area has attained the 1-hour .12 parts per million (ppm)

National Ambient Air Quality Standard (NAAQS) for ozone. This

determination is based upon the latest four years of ambient air

monitoring data for the years 1993-96 that demonstrate that the 1-hour

ozone NAAQS is being attained in this area. EPA has also determined

that the Richmond area has continued to attain the 1-hour 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 (CAA), are not applicable to the

Richmond area so long as this area continues to attain the ozone NAAQS,

or until the area is redesignated to attainment.

EFFECTIVE DATE: This final rule is effective on November 5, 1997.

ADDRESSES: 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.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, 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) 566-2092. Questions may

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

Gaffney.K[email protected].

[[Page 52030]]

SUPPLEMENTARY INFORMATION: On June 13, 1997, EPA published its

determination that the Richmond ozone nonattainment area has attained

the National Ambient Air Quality Standard (NAAQS) for ozone, and that

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

this determination, EPA further determined that certain reasonable

further progress and attainment demonstration requirements, along with

certain other related requirements of part D of Title I of the CAA are

not applicable to this area as long as this area continues to attain

the ozone NAAQS. See 62 FR 32204.

EPA made these determinations through direct final rulemaking

without prior proposal because the Agency viewed the action as

noncontroversial and anticipated no adverse comments. The final rule

was published in the Federal Register with a provision for a 30-day

public comment period. The final rule stated that if adverse comments

were received during the comment period, the final rulemaking action

would be withdrawn by publishing a notice announcing withdrawal of the

final action in the Federal Register. At the same time, EPA published a

proposed rule for the same action in the event that adverse comments

were submitted to EPA within 30 days of publication of the rule in the

Federal Register [62 FR 32258, June 13, 1997].

In a separate action, also on June 13, 1997, EPA proposed approval

of the redesignation request and maintenance plan submitted by the

Commonwealth of Virginia for the Richmond area and provided a 30-day

public comment period. [62 FR 32258] On July 14, 1997, EPA received a

letter from the New York State Department of Environmental Conservation

(NYSDEC) submitting adverse comments that referenced both the

determination of attainment rulemaking and the proposed approval of the

redesignation request and maintenance plan rulemaking. The adverse

comments all appear to pertain to the proposed approval of the

redesignation request, and several comments were clearly identifiable

as addressed solely to the proposal to approve the redesignation

request. It was thus at best ambiguous as to whether any comments

pertained to the rulemaking on the determination of attainment.

However, to ensure that this comment letter was given proper

consideration as it relates to EPA's determination of attainment and

the resulting inapplicability of the RFP, attainment demonstration and

section 172(c)(9) contingency measure requirements for the Richmond

area, EPA removed the June 13, 1997 final rulemaking action in order to

address the comments. [See 62 FR 43471, August 14, 1997.]

In today's action, the EPA is responding to the comments in

NYSDEC's letter only as they may relate to the determination of

attainment and the inapplicability of certain RFP and attainment

demonstration requirements, along with certain other related

requirements of part D of Title I of the CAA. EPA will respond to the

comments received from NYSDEC related to the redesignation request and

maintenance plan in a separate rulemaking on EPA's final action in the

context of the requirements for redesignation to attainment under the

CAA.

On July 18, 1997, EPA promulgated a new NAAQS for ozone replacing

the 1-hour .12 ppm standard with an 8-hour 0.08 ppm standard [62 FR

38856]. EPA is in the process of developing guidance and proposed rules

to implement the new ozone standard based on a Presidential Directive

signed on July 16, 1997 and also published in the Federal Register on

July 18, 1997. Today's action is a determination of attainment for the

Richmond area of the 1-hour .12 ppm ozone standard and a determination

of inapplicability of certain CAA requirements related to that standard

only. Today's decision does not in any way make a determination

regarding Richmond's attainment status for the newly promulgated 8-hour

.08 ppm ozone standard. Decisions regarding the attainment status of

areas for the new 8-hour .08 ppm ozone NAAQS will be conducted through

a separate rulemaking to be published at a later date at the time EPA

designates all areas as attainment or nonattainment under the new 8-

hour NAAQS.

EPA's decision that certain CAA requirements related to the 1-hour

.12 ppm ozone standard are inapplicable is based on an EPA policy memo

of 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.'' See the discussion and rationale

contained in EPA's prior determination of attainment rulemakings for:

Grand Rapids, MI [61 FR 31831, 31832-31834, June 21, 1996], Cleveland/

Akron/Lorain, OH [61 FR 20458, May 7, 1996] and Salt Lake City/Davis

County, UT [60 FR 36723, July 18, 1995]. See also the decision of the

U.S. Court of Appeals for the 10th Circuit upholding the statutory

interpretation contained in the May 10, 1995 Seitz memo. Sierra Club v.

EPA 99f.3d 1551 (10th Cir. 1996).

Response to Public Comments

Comment #1

NYSDEC disagrees with EPA's statement in the proposed rulemaking

for approval of the redesignation request and maintenance plan that the

Richmond area has met all relevant requirements of the CAA that were

due as of July 26, 1996, the date Virginia submitted its redesignation

request. NYSDEC states that the Commonwealth of Virginia missed the

``November 15, 1995'' statutory deadline for implementing the nitrogen

oxides (NOX) reasonably available control technology (RACT)

requirements of the CAA and continues to be delinquent.1 It

was noted that the Commonwealth of Virginia responded to EPA's July 8,

1994 finding of failure to submit a NOX RACT state

implementation plan (SIP) for the Richmond area with a petition for an

exemption from the NOX RACT requirement submitted on

December 18, 1995. NYSDEC states that this December 18, 1995 petition

was well after the mandated date of November 15, 1993 for submittal of

a NOX RACT SIP and after the mandatory implementation date.

NYSDEC concludes that ``[t]herefore, not implementing NOX

RACT in the Richmond area was not an option.'' NYSDEC objects to the

proposed approval of the redesignation request on the grounds that the

area failed to implement RACT on major sources of NOX.

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\1\ Section 182(b) of the Act specifies that RACT is to be

implemented not later than May 15, 1995. The discrepancy in dates

does not substantively affect the commenters argument.

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Response #1

Upon careful consideration of this comment, EPA concludes that this

comment is relevant only to the proposed approval of the redesignation

to attainment and not EPA's July 13, 1997 decision that the RFP,

attainment demonstration and section 172(c)(9) contingency measure

requirements of the CAA are inapplicable to Richmond. Section 107 of

the CAA requires that the Commonwealth meet all applicable part D

requirements prior to redesignation. However, there is no linkage of

the section 182(f) NOX RACT requirement with the

determination of attainment and resulting inapplicability of certain

part D requirements for RFP, the attainment demonstration and other

requirements of CAA sections 172(c)(2), 172(c)(9), and 182(b)(1).

Eligibility for this

[[Page 52031]]

determination is based solely on monitored air quality. Furthermore, on

July 21, 1997, EPA published final approval of an exemption from the

NOX RACT requirement for the Richmond area contingent upon

air quality monitoring that demonstrates continued attainment of the

ozone NAAQS [62 FR 38922].

As discussed in the June 13, 1997 direct final rulemaking, 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 where an area is monitoring attainment of the ozone standard.

See 57 FR 13498, 57 FR 13564 (April 16, 1992). As discussed in the

direct final rulemaking and in previous rulemakings in other areas

cited above, EPA has concluded that it is appropriate to interpret the

more specific RFP, attainment demonstration and related provisions of

subpart 2 in the same manner. This conclusion was upheld by the U.S.

Court of Appeals for the 10th Circuit, Sierra Club v. EPA 99f.3d 1551

(10th Cir. 1996). According to the May 10, 1995 policy memo, three

consecutive years of complete, quality assured ambient air quality

monitoring data is the sole determinant of whether the Richmond area

has attained the standard and is therefore eligible for a determination

that certain part D requirements do not apply, for as long as the

Richmond area continues to attain the standard, or until the area is no

longer designated nonattainment.

Comment #2

NYSDEC also contests EPA's statement in the redesignation request

and maintenance plan proposed rulemaking that the Commonwealth of

Virginia has a fully approved SIP for the Richmond area under section

110(a)(2). NYSDEC states that any NOX exemption petition

would also be invalid because section 110(a)(2)(D) prohibits granting

an exemption from NOX RACT pursuant to section 182(f) of the

CAA where there is evidence that the exemption would interfere with

attainment of a NAAQS in another state. Therefore, NSYDEC claims the

redesignation request does not meet this prerequisite for redesignation

of section 107 of the CAA that the Commonwealth have a fully approved

SIP under section 110(a)(2).

Response #2

Upon careful consideration of this comment, EPA concludes that this

comment is relevant only to the proposed approval of the redesignation

to attainment and not EPA's July 13, 1997 decision that the RFP,

attainment demonstration and section 172(c)(9) contingency measure

requirements of the CAA are inapplicable to Richmond. The commenter

objected to the proposed approval of the redesignation request on the

grounds that the area failed to implement RACT on major sources of

NOX. The commenter did not object to the determination that

the area has attained the standard or that certain requirements of the

CAA are no longer applicable for so long as the area continues to

attain the standard, or until the area is no longer designated

nonattainment.

While section 107 of the CAA requires the Commonwealth to have a

fully approved SIP under section 110(a)(2) prior to redesignation to

attainment, the determination of the inapplicability of certain part D

requirements is based solely on air quality data. There is no

requirement to have a fully approved SIP under section 110(a)(2) to be

eligible for a determination that the area is attaining the standard

and that, therefore, certain part D requirements of the CAA for RFP,

attainment demonstration and other requirements of sections 172(c)(2),

172(c)(9) and 182(b)(1) are inapplicable.

On July 21, 1997, EPA published final approval of an exemption from

the NOX RACT requirement for the Richmond area contingent

upon air quality monitoring that demonstrates continued attainment of

the ozone NAAQS [62 FR 38922]. In the July 21, 1997 final rulemaking

action on the NOX exemption, EPA responded to adverse

comments received that section 110(a)(2)(D) prohibits granting

exemptions pursuant to section 182(f) where there is evidence that

granting of the exemption would interfere with attainment of the ozone

NAAQS in downwind areas. See 62 FR 38926. Furthermore, as EPA responded

in the final rulemaking, the action to provide a NOX RACT

waiver under section 182(f) for any area would not shield that state

from the obligation, in response to a SIP call under section 110 by

EPA, to obtain NOX emission reductions, if evidence such as

photochemical grid modeling shows that NOX emissions

contribute significantly to downwind nonattainment or maintenance in

another state.

Comment #3: NSYDEC states that it is not a relevant factor that

Richmond is now attaining the ozone NAAQS because the Richmond area has

avoided implementing the NOX RACT requirements of the Act.

Response #3: As stated above, air quality data is directly relevant

to this action. As set forth in the May 10, 1995 Seitz memo and

subsequent rulemakings, EPA is authorized to conduct individual

rulemakings concerning areas that have three consecutive years of clean

air quality monitoring data demonstrating attainment of the ozone

standard to make binding determinations that the areas have attained

the standard and thus need not make the required SIP submissions for

RFP, the attainment demonstration and the section 172(c)(9) contingency

measure requirements for so long as the area remains in attainment, or

until the area is redesignated to attainment. The fact that the

Richmond area has not implemented the NOX RACT requirements

of the CAA is not relevant to EPA's determination of inapplicability of

these other CAA requirements.

Other specific requirements of section 110 and the rationale for

EPA's proposed action are explained in the June 13, 1997 direct final

rulemaking and other rulemakings referenced in today's action, and will

not be restated here.

Final Action

EPA has determined that the Richmond ozone nonattainment area has

attained the 1-hour .12 ppm ozone standard and continues to attain that

standard at this time. As a consequence of this determination, the

requirements of sections 182(b)(1) and 172(c)(2) 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 1-hour .12 ppm ozone standard, or until the area is

redesignated to attainment.

EPA emphasizes that this determination is contingent upon the

continued monitoring and continued attainment and maintenance of the

ozone NAAQS in the affected area. In the event the area is still

designated nonattainment and a violation of the ozone NAAQS is

monitored in the Richmond nonattainment area (consistent with the

requirements contained in 40 CFR part 58), 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.

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

[[Page 52032]]

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

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, EPA certifies 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 approval action proposed/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 section 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 December 5, 1997. Filing a

petition for reconsideration by the Administrator of this final rule

regarding a determination of attainment of ozone standard and a

determination regarding the applicability of certain CAA requirements

in the Richmond area 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Ozone.

Dated: September 27, 1997.

William T. Wisniewski,

Acting Regional Administrator, Region III.

40 CFR part 52, subpart VV of chapter I, title 40 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 November 5, 1997, the

Richmond ozone nonattainment area, which consists of the counties of

Chesterfield, Hanover, Henrico, and part of Charles City County, and of

the cities of Richmond, Colonial Heights and Hopewell, has attained the

1-hour .12 ppm ozone standard based on three years of air quality data

for 1993, 1994 and 1995. EPA has further determined 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 the Richmond area for so long as the area does

not monitor any violations of the 1-hour .12 ppm ozone standard, or

until the area is no longer designated nonattainment. If a violation of

the ozone NAAQS is monitored in the Richmond ozone nonattainment area

while the area is designated nonattainment, these determinations shall

no longer apply.

[FR Doc. 97-26444 Filed 10-3-97; 8:45 am]

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