[Federal Register Volume 62, Number 193 (Monday, October 6, 1997)]
[Rules and Regulations]
[Pages 52029-52032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26444]
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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.Kristeen@epamail.epa.gov.
[[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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