2011-17868. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Determination of Attainment and Determination of Clean Data for the Annual 1997 Fine Particle Standard for the Charleston Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to make two determinations regarding the Charleston, West Virginia fine particulate matter (PM_2.5) nonattainment area (hereafter referred to as “Charleston Area” or “Area”). First, EPA is proposing to determine that the Area has attained the 1997 annual average PM_2.5 National Ambient Air Quality Standard (NAAQS). This proposed determination of attainment is based upon complete, quality-assured, and certified ambient air monitoring data for the 2007-2009 period showing that the Charleston Area has attained the 1997 annual PM_2.5 NAAQS and data available to date for 2010 in EPA's Air Quality System (AQS) database that show the area continues to attain. If EPA finalizes this proposed determination of attainment, the requirements for the Charleston Area to submit attainment demonstrations and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures, and other planning State Implementation Plan (SIP) revisions related to attainment of the standard shall be suspended for so long as the Area continues to attain the annual PM_2.5 NAAQS. Second, EPA is also proposing to determine based on quality-assured and certified monitoring data for the 2007-2009 monitoring period that the area has attained the 1997 annual PM_2.5 NAAQS, by its applicable attainment date of April 5, 2010.

DATES:

Comments must be received on or before August 15, 2011.

ADDRESSES:

Submit your comments regarding the Charleston Area, identified by Docket ID No. EPA-R03-OAR-2011-0454, by one of the following methods:

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

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

C. Mail: EPA-R03-OAR-2011-0454, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mail code 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. 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 Docket ID No. EPA-R03-OAR-2011-0454. 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.regulations.gov,, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.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 http://www.regulations.gov index. 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 http://www.regulations.gov 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.

FOR FURTHER INFORMATION CONTACT:

Asrah Khadr, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

 

I. What actions is EPA taking?

II. What is the background for these actions?

III. Has the Charleston Area attained the 1997 annual PM_2.5 standard?

A. Criteria

B. Charleston Area Air Quality

C. How did EPA address air quality in the Charleston Area?

D. Has the Charleston Area met the 1997 annual PM_2.5 air quality standard?

IV. What is the effect of these actions?

V. Statutory and Executive Order Reviews

I. What actions is EPA taking?

In accordance with section 179(c)(1) of the Clean Air Act (CAA), 42 United States Code section 7509(c)(1), and 40 Code of Federal Register (CFR) section 51.1004(c), EPA is proposing to determine that the Charleston Area (composed of Kanawha and Putnam Counties) has attained the 1997 annual PM_2.5 NAAQS. This proposed action is based upon complete, quality-assured, and certified ambient air monitoring data for the 2007-2009 monitoring period that show that the Area has monitored attainment of the 1997 annual PM_2.5 NAAQS and data available to date for 2010 that show the Area continues to attain. EPA is also proposing to determine, in accordance with EPA's PM_2.5 Implementation Rule of April 25, 2007 (72 FR 20664), that the Charleston Area has attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010.

II. What is the background for these actions?

On July 18, 1997 (62 FR 36852), EPA established an annual PM_2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m³) based on a 3-year average of annual mean PM_2.5 concentrations (hereafter referred to as “the annual PM_2.5 NAAQS” or “the annual standard”). At that time, EPA also established a 24-hour standard of 65 μg/m³ (the “1997 24-hour standard”). See 40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 PM_2.5 NAAQS based upon air quality monitoring data from those monitors for calendar years 2001-2003. These designations became effective on April 5, 2005. The Charleston Area was designated nonattainment for the annual 1997 PM_2.5 NAAQS during this designations process. See 40 CFR 81.349 (West Virginia).

On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM_2.5 NAAQS at 15.0 μg/m³ based on a 3-year average of annual mean PM_2.5 concentrations and promulgated a 24-hour standard of 35 μg/m³ based on a 3-year average of the 98th percentile of 24-hour concentrations (the “2006 24-hour standard”). On November 13, 2009, EPA designated the Charleston Area as nonattainment for the 2006 24-hour standard (74 FR 58688). In that action, EPA also clarified the designations for the PM_2.5 NAAQS promulgated in 1997, stating that the Charleston Area was designated as nonattainment for the annual standard and attainment for the 1997 24-hour standard. Today's action, however, does not address either the 1997 or the 2006 24-hour standard.

In response to legal challenges of the annual standard promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded this standard to EPA for further consideration. See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (DC Circuit 2009). However, given that the 1997 and 2006 annual standards are essentially identical, attainment of the 1997 annual standard would also indicate attainment of the remanded 2006 annual standard.

On April 25, 2007 (72 FR 20664), EPA promulgated its PM_2.5 implementation rule, codified at 40 CFR part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the 1997 PM_2.5 standard. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory consequences of attaining the standard, as discussed below.

III. Has the Charleston Area attained the 1997 annual PM_2.5 standard?

A. Criteria

Today's rulemaking proposes to approve that the Charleston Area has attained the 1997 annual PM_2.5 NAAQS, based on the most recent three years of quality-assured data and that the Area attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010. Under EPA regulations at 40 CFR 50.7, the annual primary and secondary PM_2.5 standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, Appendix N, is less than or equal to 15.0 µg/m³ at all relevant monitoring sites in the subject area.

B. Charleston Area Air Quality

EPA has determined that the PM_2.5 monitoring network for the Charleston Area is adequate. First, the number of monitors in the Area meets the minimum regulatory requirements given in 40 CFR part 58 Appendix D. Second, the monitoring is in accordance with state monitoring plans that have been reviewed and approved by EPA.

Table 1 shows the design values (i.e., the 3-year average of annual mean PM_2.5 concentrations) for the 1997 annual PM_2.5 NAAQS for the Charleston Area monitors for the years 2007-2009. All data considered have been quality-assured, certified, and recorded in AQS. The highest 3-year average annual concentration for 2007-2009 on this table was recorded in Kanawha County, West Virginia at the South Charleston site 54-039-1005, recording a 3-year average annual concentration of 14.4 μg/m³.

EPA's review of these data indicates that the Charleston Area has met the 1997 annual PM_2.5 NAAQS. Table 1 and the related discussion below show that based on EPA's analysis of data for 2007-2009, the Area attained the 1997 annual PM_2.5 standard by its attainment date of April 5, 2010. In addition, Table 2 and the related discussion below, show that the Area continues to attain the standard based on data available to date for 2010.

Table 1—2007-2009 Annual Average Concentrations in the Charleston Area

Site name	County	Site No.	Design value (μg/m3)
Charleston	Kanawha	54-039-0010	13.1
South Charleston	Kanawha	54-039-1005	14.4

C. How did EPA address the air quality in Charleston?

There are two monitors located in Kanawha County. There is a monitor located in Charleston and a monitor located in South Charleston. There was a Guthrie site monitor also located in Kanawha County that was shut down in 2007 because a carbon monitor for the PM_2.5 chemical speciation network replaced it at its respective location. EPA data completeness requirements require at least 75 percent of the scheduled sampling days for each quarter have valid data. See 40 CFR part 50, Appendix N section 4.1(b). The use of less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence, and nearby concentrations in determining whether to use such data (40 CFR part 50, Appendix N, section 4.1(c)).

Determinations of attainment are based on three years of complete, quality-assured data. Nevertheless, any such assessment should consider additional quality-assured data, to the extent that quality-assured data exist. In accordance with Appendix N and standard EPA practice, this review of data is based on the three most recent years of complete data, generally 2007-2009. Quality-assured data are now available for 2010, which EPA used to compute preliminary design values. The Charleston site has a preliminary 2008-2010 design value of 11.8 μg/m³ and the South Charleston site has a preliminary 2008-2010 design value of 13.2 μg/m³. On the basis of this review, EPA is proposing to determine that the Charleston Area has attained the 1997 annual PM_2.5 NAAQS and is soliciting public comments on its proposed determination.

Table 2—2008-2010 Annual Average Concentrations in the Charleston Area

Site name	County	Site No.	Preliminary design value (μg/m3)
Charleston	Kanawha	54-039-0010	11.8
South Charleston	Kanawha	54-039-1005	13.2

D. Has the Charleston Area met the 1997 annual PM_2.5 air quality standard?

EPA has reviewed the ambient air monitoring data for PM_2.5, consistent with the requirements contained in 40 CFR part 50 and recorded the data in the EPA AQS database, for the Charleston Area from 2007 through the present time.

On the basis of this review, EPA proposes to determine that the Charleston Area has attained and continues to attain the 1997 annual PM_2.5 NAAQS based on the quality-assured data for the 2007-2009 period and preliminary data for the 2008-2010 monitoring period. In addition, based on EPA's review of the data for 2007-2009 and in accordance with section 179(c)(1) of the CAA and EPA's regulations, EPA proposes to determine that the Charleston Area attained the 1997 annual PM_2.5 NAAQS by its applicable attainment date of April 5, 2010.

IV. What is the effect of these actions?

If EPA's proposed determination of attainment, based on the most recent three years of quality-assured data is made final, the requirements for the Charleston Area to submit attainment demonstrations and associated RACM, a RFP plan, contingency measures, and any other planning SIPs related to attainment of the 1997 annual PM_2.5 NAAQS would be suspended for so long as the Charleston Area continues to attain the 1997 annual PM_2.5 NAAQS. See 40 CFR 51.1004(c). Notably, as described below, any such determination would not be equivalent to the redesignation of the Charleston Area to attainment for the 1997 annual PM_2.5 NAAQS.

If this proposed determination of attainment is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, that the Area has violated the 1997 annual PM_2.5 NAAQS, the basis for the suspension of the specific requirements would no longer exist for the Charleston Area, and the Area would thereafter have to address the applicable requirements. See 40 CFR 51.1004(c).

Finalizing this proposed action would not constitute a redesignation of the Area to attainment of the 1997 annual PM_2.5 NAAQS under section 107(d)(3) of the CAA. Further, finalizing this proposed action does not involve approving maintenance plans for the Area as required under section 175A of the CAA, nor would it find that the Area has met all other requirements for redesignation. Even if EPA finalizes the proposed action, the designation status of the Charleston Area would remain nonattainment for the 1997 annual PM_2.5 NAAQS until such time as EPA determines that the Area meets the CAA requirements for redesignation to attainment and takes action to redesignate the Charleston Area.

In addition, if EPA's separate and independent proposed determination that the Area has attained the 1997 annual PM_2.5 standard by its applicable attainment date (April 5, 2010), is finalized, EPA will have met its requirement pursuant to section 179(c)(1) of the CAA to make a determination based on the Area's air quality data as of the attainment date whether the Area attained the standard by that date. These two actions described above are proposed determinations regarding the Charleston Area's attainment only with respect to the 1997 annual PM_2.5 NAAQS. Today's actions do not address the 24-hour PM_2.5 NAAQS.

V. Statutory and Executive Order Reviews

These actions propose to make determinations of attainment based on air quality, and would, if finalized, result in the suspension of certain federal requirements, and it would not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions:

• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Do 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);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, these proposed 1997 annual PM_2.5 NAAQS determinations for the Charleston Area do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Particulate matter
• Reporting and record-keeping requirements

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

Dated: June 27, 2011.

W. C. Early,

Acting Regional Administrator, Region III.