05-11381. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the New Manchester-Grant Magisterial District SO2

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a request by the State of West Virginia to redesignate the New Manchester-Grant Magisterial District sulfur dioxide (SO₂) nonattainment area in Hancock County, West Virginia from nonattainment to attainment of the national ambient air quality standards (NAAQS) for SO₂. EPA is also approving the maintenance plan for this area submitted by the State of West Virginia as a revision to the West Virginia State Implementation Plan (SIP). This plan provides for the maintenance of the NAAQS for SO₂ for the next ten years. These actions are being taken in accordance with the Clean Air Act (CAA or the Act).

DATES:

This rule is effective on August 8, 2005 without further notice, unless EPA receives adverse written comment by July 8, 2005. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Regional Material in EDocket (RME) ID Number R03-OAR-2004-WV-0003 by one of the following methods:

A. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

B. Agency Web site: http://www.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.

C. E-mail: [e-mail].

D. Mail: R03-OAR-2004-WV-0003, David Campbell, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

E. 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-2004-WV-0003. 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://www.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 identify 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://www.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 West Virginia Department of Environmental Protection, Division of Air Quality, 7012 MacCorkle Avenue, SE., Charleston, West Virginia 25304-2943.

FOR FURTHER INFORMATION CONTACT:

Ellen Wentworth, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

The New Manchester-Grant Magisterial District of Hancock County was designated as an SO₂ nonattainment area on March 3, 1978 (43 FR 8962), as amended on September 12, 1978 (43 FR 40502). On July 24, 1979 (44 FR 43298), and August 14, 1980 (45 FR 54042), EPA proposed and finalized, respectively, a revision to the West Virginia SIP for SO₂. The revision contained a control strategy and attainment demonstration for the New Manchester-Grant area.

On February 5, 1990, EPA issued a SIP call to West Virginia which, among other things, required the submission of a SIP revision to attain and maintain the NAAQS for SO₂ in all of Hancock County, including the New Manchester-Grant nonattainment area. The SIP call was issued because monitored violations of the NAAQS indicated that the previously approved SIP for the area was inadequate. On November 15, 1990, amendments to the Act were promulgated which provided that any area designated with respect to the NAAQS, as in effect immediately before November 15, 1990, shall retain that designation by operation of law. Therefore, the New Manchester-Grant Magisterial District, in Hancock County, West Virginia remained designated as nonattainment for SO₂ by operation of law.

On February 17, 1995 and May 3, 1996, West Virginia submitted a formal SIP revision for the New Manchester-Grant Magisterial District nonattainment area. The SIP revision included individual consent orders, dated January 9, 1995, between the West Virginia Department of Environmental Protection (WVDEP) and the Quaker State Refinery, and the WVDEP and Weirton Steel Corporation. These consent orders established SO₂ emission limits for numerous emission points at both facilities. The SIP revision also included a demonstration of attainment in the New Manchester-Grant nonattainment area. EPA determined that the submittal was administratively and technically complete and, on November 27, 1996 (61 FR 60191), EPA approved this SIP revision for the New Manchester-Grant Magisterial District.

On December 29, 2003, West Virginia submitted an attainment demonstration SIP revision for the City of Weirton, including the Clay and Butler Magisterial Districts, in Hancock County, West Virginia. That revision included a revised consent order, dated August 4, 2003, between the WVDEP and the Weirton Steel Corporation, establishing enforceable emission limits for numerous emission points at the facility. On May 5, 2004, (69 FR 24986), EPA approved this revised consent order as part of the attainment demonstration SIP revision for the City of Weirton including the Clay and Butler Magisterial Districts area. It should be noted that this revised consent order did not allow for any increases in SO₂ emissions above those modeled for Weirton Steel Corporation in the attainment demonstration SIP revision for the New Manchester-Grant Magisterial District approved by EPA on November 27, 1996 (61 FR 60191).

II. Summary of the Redesignation Request and Maintenance Plan

On July 27, 2004, the State of West Virginia submitted a redesignation request for the New Manchester-Grant Magisterial District, Hancock County, West Virginia SO₂ nonattainment area. The State's July 27, 2004 submittal also included a maintenance plan for approval by EPA as a SIP revision. Under the Act, EPA may redesignate nonattainment areas to attainment if sufficient data are available to warrant such changes and the area meets the criteria contained in section 107(d)(3)(E). These criteria include full approval of a maintenance plan which meets the requirements of section 175A of the Act.

III. Redesignation Criteria

Section 107(d)(3)(E) of the CAA specifies five requirements that must be met to redesignate an area to attainment. They are as follows:

A. The area must meet the applicable NAAQS.

B. The area must have a fully approved SIP under section 110(k).

C. The area must show improvement in air quality due to permanent and enforceable reductions in emissions.

D. The area must meet all relevant requirements under section 110 and part D of the Act.

E. The area must have a fully approved maintenance plan pursuant to section 175A.

The EPA has reviewed the redesignation request submitted by the State of West Virginia for the New Manchester-Grant Magisterial District SO₂ nonattainment area, and finds that the request meets the five requirements of section 107(d)(3)(E).

A. The Data Shows Attainment of the NAAQS for SO₂

A review of the monitored ambient air quality data indicates that the NAAQS have been achieved in the New Manchester-Grant Magisterial District SO₂ nonattainment area. Quality assured/quality controlled data for the most recent three whole calendar years (2001-2003) is included in West Virginia's July 27, 2004 submittal. This data was collected and quality assured in accordance with 40 CFR part 58, and has been entered into EPA's Air Quality System (AQS) of the Aerometric Information Retrieval System (AIRS). This data indicates that the ambient air quality attains the annual and 24-hour health-based primary standards and the 3-hour secondary standard. The primary standards are an annual mean of 0.030 parts per million (ppm), not to be exceeded in a calendar year, and a 24-hour average of 0.14 ppm, not to be exceeded more than once per calendar year. The secondary standard is a 3-hour average of 0.5 ppm, not to be exceeded more than once per calendar year. West Virginia's quality-assured SO₂ ambient air monitoring data indicates that the New Manchester-Grant SO₂ area has attained the NAAQS for SO₂. No violations of the SO₂ standards have occurred for a period of time nearing ten years. A table summarizing the monitoring data that has been collected in the New Manchester-Grant area by West Virginia since 1992 can be found in the formal submittal and that submittal is available for review in the docket prepared in support of this rulemaking action. There are currently four monitors operating within the nonattainment area: Chester, Lawrenceville, New Manchester, and New Cumberland. All of the monitors meet the requirements of 40 CFR parts 53 and 58, and are representative of the highest ambient concentrations.

B. The Area Has a Fully Approved SIP Under Section 110(k) of the CAA

On November 27, 1996 (61 FR 60191), EPA fully approved a SIP revision for the New Manchester-Grant Magisterial District SO₂ nonattainment area consisting of an attainment demonstration and enforceable consent orders for two sources in Hancock County, West Virginia. This attainment demonstration consisted of a dispersion modeling analysis based upon the enforceable SO₂ emission limits imposed on the two contributing sources in enforceable consent orders, in addition to a representative background. This modeling analysis demonstrated that the maximum allowable SO₂ emission limitations imposed on the contributing sources provide for attainment and maintenance of the NAAQS for SO₂.

The Federal requirements for new source review (NSR) in nonattainment areas are contained in section 172(c)(5) of the CAA. EPA guidance indicates the requirements of the part D NSR program will be replaced by the Prevention of Significant Deterioration (PSD) program when an area has reached attainment and been redesignated, provided there are assurances that PSD will become fully effective upon redesignation. Regulations for the PSD of air quality were approved into the West Virginia SIP on April 11, 1986 (51 FR 12518), and will become fully effective in the New Manchester-Grant area immediately upon the effective date of redesignation.

C. The Improvement in Air Quality Is Due to Permanent and Enforceable Reductions

The improvement in air quality in the New Manchester-Grant Magisterial District SO₂ nonattainment area is due to permanent and enforceable emission reductions. The primary sources of SO₂ in the New Manchester area are the steel manufacturing and petroleum processing facilities. Enforceable SO₂ emission limitations and other control measures (including permanent shutdowns, fuel switching and emission caps) imposed by the State of West Virginia on contributing sources have substantially lowered ambient SO₂ levels and have brought the area into attainment. As previously stated, on November 27, 1996 (61 FR 60191), EPA approved a SIP revision for the New Manchester-Grant Magisterial District consisting of a modeled attainment demonstration and consent orders between West Virginia and Quaker State Refinery and Weirton Steel Corporation, dated January 9, 1995, limiting each facility's SO₂ emissions and providing attainment of the SO₂ NAAQS in the area.

If a new source applies to construct or an existing source applies for a modification after EPA redesignates the area to attainment, the permitting provisions of West Virginia's approved SIP, including those for Prevention of Significant Deterioration (PSD), require that emission limits and control measures be imposed to protect the NAAQS and all applicable PSD increments.

D. All Applicable Requirements of Section 110 and Subpart 1, Part D of the CAA Have Been Met

The New Manchester-Grant Magisterial District nonattainment area has met all the applicable and necessary requirements of section 110 and subpart 1, of part D of the CAA. As mentioned previously, the modeled attainment demonstration for the New Manchester-Grant area and emission limitations established by permits and consent orders were fully approved by EPA as a SIP revision for the area, and West Virginia's PSD and NSR programs were approved by EPA. EPA approval of a transportation conformity SIP revision for this area is not required for redesignation because the nature of the area's previous SO₂ nonattainment problem was not attributable to the mobile or transportation sector. The attainment demonstration SIP revision approved by EPA on November 27, 1996 (61 FR 60191) for the area contained a detailed emissions inventory of all sources of SO₂. That inventory was approved by EPA as part of the SIP revision. Sulfur dioxide emissions from area and mobile sources are not significant contributors to ambient SO₂ levels in the area, rather the overwhelming contributing emissions are from stationary sources.

E. The Area Must Have a Fully Approved Maintenance Plan Under Section 175A

Section 107(d)(3)(E) of the CAA requires that a maintenance plan be fully approved by EPA before an area can be redesignated to attainment. The maintenance plan is to be submitted and approved as a SIP revision under section 110 of the CAA. Section 175A of the CAA sets forth the necessary elements of a maintenance plan needed for areas seeking redesignation from nonattainment to attainment. A maintenance plan must contain the following elements:

1. An emissions inventory reflective of SO₂ emissions in the monitored attainment years;

2. A maintenance demonstration which is expected to provide adequate assurance of maintenance over the initial 10-year period;

3. A commitment to continue monitoring in the area;

4. A method for verifying continued attainment; and

5. A contingency plan with specific indicators or triggers for implementation of the plan.

The maintenance plan for the New Manchester-Grant Magisterial District area is being submitted to EPA for approval as a SIP revision concurrently with the request for redesignation. The maintenance plan shows that the NAAQS for SO₂ will be maintained for at least 10 years after redesignation. The maintenance plan must also include contingency measures to address any violation of the NAAQS. Eight years after the redesignation, West Virginia must submit a revised maintenance plan which demonstrates attainment for the 10 years following the initial 10-year period.

1. Emissions Inventory

The maintenance plan submitted indicates that the attainment inventory is the emissions inventory used to perform the modeling demonstration of attainment and provides updates to that inventory for 2001 for sources in the New Manchester-Grant nonattainment area. Any future increases in emissions and/or significant changes to the stack configuration parameters from those modeled in the attainment demonstration due to new or modifying stationary sources would be subject to NSR requirements, including a demonstration that the NAAQS is protected.

2. Maintenance Demonstration

The modeling demonstration of attainment submitted by West Virginia, which was fully approved by EPA on November 27, 1996 (61 FR 60191), showed attainment of each of the SO₂ NAAQS. Modeling results submitted indicate future NAAQS maintenance for the area. No modifications or installations have been made that detrimentally affect the modeling results. The major source changes in the area consist of permanent shutdowns, which will reinforce the continued attainment in the area. A shift in employment from manufacturing to commercial business, and the declining steel industry and ancillary industries in the area indicate a continued decrease in SO₂ emissions from stationary sources. The requirement for PSD review and permitting for any future major source construction or modification and the permanent and enforceable control measures were provided in the maintenance plan. Subsequent to redesignation, any major source construction or modification will be subject to West Virginia's PSD requirements, including a modeling demonstration to ensure maintenance of the NAAQS. A projected decrease in population along with a decrease in occupied households for the years 1990-2025 indicates that no new growth is anticipated to impact emissions in the area. The State of West Virginia is confident that the area will maintain the NAAQS for SO₂ for the next ten years.

3. Continuation of the Monitoring Network

West Virginia has indicated in the submitted maintenance plan that it will continue to monitor SO₂ in the New Manchester-Grant area in accordance with 40 CFR 53 and 58 to verify continued attainment with the NAAQS for SO₂.

4. Verification of Continued Attainment

West Virginia has committed in the maintenance plan to review the monitored data annually, and to review the local monitored meteorological data. The WVDEP will also assess compliance of local targeted facilities to verify continued attainment of the area. The State will review the annual emissions inventory for the New Manchester-Grant area at a minimum of once every three years.

5. Contingency Plan

West Virginia will rely on ambient air monitoring data in the New Manchester-Grant area to track compliance with the NAAQS for SO₂ and to determine the need to implement contingency measures. In the event that an exceedance of the NAAQS for SO₂ occurs, the State will expeditiously investigate and determine the source(s) that caused the exceedance and enforce any SIP or permit limit that is violated. In the event that all sources are found to be in compliance with applicable SIP and permit emission limits, the State shall perform the necessary analysis to determine the cause(s) of the exceedance, and determine what additional control measures are necessary to impose on the area's stationary sources to continue to maintain attainment of the NAAQS for SO₂. The State shall inform any affected stationary source(s) of SO₂ of the potential need for additional control measures. If there is a violation of the NAAQS for SO₂, the State will notify the stationary source(s) that the potential exists for a NAAQS violation. Within six months, the source(s) must submit a detailed plan of action specifying additional control measures to be implemented no later than 18 months after the notification. The additional control measures will be submitted to EPA for approval and incorporation into the SIP.

If an exceedance of an SO₂ NAAQS occurs, the State will notify the subject companies that the potential exists for a NAAQS violation. The subject companies must then prepare a detailed plan of action containing control measures for implementation in the event of a violation. This plan of action shall include an implementation time line and shall be submitted to the State within six months of notification that the potential exists for a violation. The final milestone of this action plan and time line will state that the contingency measures will be implemented no later than 18 months after the State informs the subject companies that a violation of the standards has occurred. Any additional control measures will be submitted to EPA for approval and incorporation into the SIP.

IV. Final Action

EPA is approving West Virginia's request to redesignate the New Manchester-Grant Magisterial District SO₂ nonattainment area to attainment because the State has complied with the requirements of section 107(d)(3)(E) of the CAA. In addition, EPA is approving West Virginia's maintenance plan for the New Manchester-Grant Magisterial District as a SIP revision because it meets the requirements of section 175A.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on August 8, 2005 without further notice unless EPA receives adverse comment by July 8, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

V. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 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 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 approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this 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 approves 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 rule also does not have tribal implications because it will 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). This action also does not have federalism implications because it does not 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). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children From Environmental Health Risks and Safety Risks” (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. 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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit 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 United States prior to publication of the rule in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

C. 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 8, 2005. Filing a petition for reconsideration by the Administrator of this final rule to redesignate the New Manchester-Grant Magisterial District to attainment for SO₂ and approve the maintenance plan for the 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR Part 81

• Air pollution control
• National parks
• Wilderness areas

Dated: May 31, 2005.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

40 CFR parts 52 and 81 are amended as follows:

PART 52—[AMENDED]

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

Authority: 42 U.S.C. 7401 et seq.

Subpart XX—West Virginia

2. In § 52.2520 the table in paragraph (e) is amended by adding an entry at the end of the table for the Sulfur Dioxide Maintenance Plan, New Manchester-Grant Magisterial District in West Virginia to read as follows:

§ 52.2520

Identification of plan.

* * * * *

(e) * * *

Name of non-regulatory SIP revision	Applicable geographic area	State submittal date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
Sulfur Dioxide Maintenance Plan	New Manchester-Grant Magisterial District in Hancock County	7/27/04	6/08/05 [Insert page number where the document begins]

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart C—Section 107 Attainment Status Designations

2. Section 81.349, the table for “West Virginia—SO ₂” is amended by revising the entry for “New Manchester-Grant magisterial district in Hancock County” to read as follows:

§ 81.349

West Virginia.

* * * * *

West Virginia—SO₂

Designated area	Does not meet primary standards	Does not meet secondary standards	Cannot be classified	Better than national standards
*         *         *         *         *         *         *
New Manchester-Grant magisterial district in Hancock County				X
*         *         *         *         *         *         *

* * * * *