E8-25662. Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revised Motor Vehicle Emission Budgets for the Parkersburg 8-Hour Ozone Maintenance Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the West Virginia State Implementation Plan (SIP). The revision amends the 8-hour ozone maintenance plan for the Parkersburg area. This revision amends the maintenance plans' 2009 and 2018 motor vehicle emissions budgets (MVEBs) by reallocating a portion of the plans' safety margins, which results in an increase in the MVEBs. The revised plan continues to demonstrate maintenance of the 8-hour national ambient air quality standard (NAAQS) for ozone. EPA is approving this SIP revision to the West Virginia maintenance plan for Parkersburg in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This rule is effective on December 29, 2008 without further notice, unless EPA receives adverse written comment by December 1, 2008. 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 Docket ID Number EPA-R03-OAR-2008-0746 by one of the following methods:

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

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

C. Mail: EPA-R03-OAR-2008-0746, Carol Febbo, Chief, Energy, Radiation and Indoor Environment Branch, Mailcode 3AP23, 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-2008-0746. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at 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 www.regulations.gov or e-mail. The 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 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 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 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. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street, SE., Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT:

Megan Goold [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On May 8, 2007 (72 FR 25967) EPA redesignated the Parkersburg area of West Virginia to attainment for the 8-hour ozone NAAQS. For the Parkersburg area, the redesignation included approval of an 8-hour ozone maintenance plan, identifying on-road MVEBs for VOCs and NO_X, which are ozone precursors, used for transportation planning and conformity purposes. Subsequently, after the SIP approval by EPA, West Virginia discovered that the MVEBs which were included in the previously approved maintenance plan did not provide a sufficient buffer to account for unforseen future growth or significant changes in the planning assumption data which was used in developing the original MVEBs in its September 2006 submission.

II. Summary of SIP Revision

2009 and 2018 Motor Vehicle Emission Budgets

On August 25, 2008, the State of West Virginia submitted to EPA a formal revision to its State Implementation Plan (SIP). The SIP revision proposes new MVEBs to reflect the reallocation of a portion of the differences (“safety margins”) between the total base year and total projected 2009 and 2018 emissions, thus producing an increase in the MVEBs. The base year is 2004 for the Parkersburg area. By increasing the MVEBs, the West Virginia Department of Environmental Protection (WVDEP) is ensuring that transportation conformity can be demonstrated in the Parkersburg area. The August 25, 2008 submittal, while increasing the MVEBs, still ensures maintenance of the NAAQS for ozone for the Parkersburg area.

Tables 1 and 2 and the discussion that follows describe the basis of the new MVEBs for the Parkersburg area.

Table 1—Parkersburg Area Reallocation of Safety Margin to the MVEBs

[Tons/day]

	2004 Base year	2009 Projection	2018 Projection
Current MVEBs in the Approved Maintenance Plan
VOC	4.00	3.0	1.9
NOX	5.66	4.1	2.0
Proposed MVEBs in the Revised Maintenance Plan
VOC	4.00	3.8	2.4
NOX	5.66	5.5	2.7

Table 2—Parkersburg Area Total Emissions (Point, Area and Mobile) Before and After Reallocation of Safety Margin to the MVEBs

[Tons/day]

	2004 Base year	2009 Projection	2018 Projection
Current Total Emissions in the Approved Maintenance Plan
VOC	16.7	14.0	13.6
NOX	15.2	11.8	9.4
Proposed Total Emissions in the Revised Maintenance Plan
VOC	16.7	14.8	14.1
NOX	15.2	13.2	10.1

For the Parkersburg, West Virginia 8-hour ozone maintenance area addressed herein, the WVDEP recalculated the 2009 and 2018 MVEBs using revised planning data which became available after the original maintenance plan was submitted to EPA on September 8, 2006. The 2009 and 2018 MVEBs for VOCs and NO_X emissions listed above in Table 1 under the Proposed MVEBs in the Revised Maintenance Plan section will serve as the new MVEBs for transportation conformity planning.

As shown in Table 1, above, WVDEP has proposed reallocating a portion of the previous safety margin into the MVEBs for both VOCs and NO_X. The remaining surplus emissions have been reserved as residual safety margins in the total maintenance budgets to ensure continued maintenance of the 8-hour ozone NAAQS.

To explain how the safety margins are determined and allocated, the VOC emissions for the Parkersburg area may be used as an example. In Table 2, listed under the Current Total Emissions in the Approved Maintenance Plan section, the total 2004 base year VOC emissions are 16.7 tons/day (tpd), which is the maximum amount of VOC emissions consistent with maintenance of the 8-hour ozone NAAQS. The total projected 2009 emissions are 14.0 tpd, which provides a 2.7 tpd VOC safety margin (i.e., the ozone NAAQS would continue to be maintained if total VOC emissions increased as much as 2.7 tpd above the projected 2009 emissions of 14.0 tpd). In the Proposed Total Emissions in the Revised Maintenance Plan section, the total projected emissions for 2009 would be increased by 0.8 tpd through the increase in the allowable mobile emissions for VOC while still leaving a safety margin of 1.9 tpd. Therefore, even with the reallocation of some of the current safety margin into the MVEBs, the State of West Virginia has left a safety margin for any other unforeseen growth.

III. Final Action

EPA is approving West Virginia's August 25, 2008 SIP revision submittal which amends the 8-hour ozone maintenance plan for the Parkersburg area. These revisions amend the maintenance plans' 2009 and 2018 MVEBs to reflect the reallocation of a portion of the plans' safety margins which results in an increase in the MVEBs. EPA is approving this SIP revision to the maintenance plan for the Parkersburg area because the August 25, 2008 submittal continues to demonstrate maintenance of the 8-hour ozone NAAQS as even after reallocation of a portion of the safety margin a sufficient safety margin still exists to demonstrate continued attainment.

EPA notes that the DC Circuit issued a decision on July 11, 2008, vacating the Clean Air Interstate Rule (CAIR). North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008).^[1] EPA's CAIR modeling was included in the last Parkersburg maintenance plan effective June 17, 2007 (72 FR 25967, May 8, 2007) as a supplemental analysis however, EPA's approval of that maintenance plan was based on permanent and enforceable measures (as instructed in the Calcagni memorandum, September 4, 1992). These permanent and enforceable measures are sufficient to provide for continued maintenance even without any CAIR reductions. EPA did note in the approval that, in addition to permanent and enforceable measures, further emissions reductions in the nonattainment area (specifically Washington County, OH) are largely attributable to CAIR, but these reductions are not needed to demonstrate maintenance in the area. Therefore, EPA's approval of the August 25, 2008 SIP revision is not impacted by the DC Circuit Court decision as even without any CAIR reductions the area continues to demonstrate maintenance after reallocation of a portion of the safety margin.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment, since no significant adverse comments were received on the SIP revision at the State level. 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 December 29, 2008 without further notice unless EPA receives adverse comment by December 1, 2008.

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.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is 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.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is 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 Clean Air Act; and
• Does 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, this rule does 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.

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 action 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action 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 December 29, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 to revise the MVEBs for the Parkersburg 8-hour Ozone Maintenance Plan 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
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: October 20, 2008.

Donald S. Welsh,

Regional Administrator, Region III.

40 CFR Part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for 40 CFR 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 revising the entry for the 8-Hour Ozone Maintenance Plan for the Parkersburg-Marietta, WV-OH Area 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
*         *         *         *         *         *         *
8-Hour Ozone Maintenance Plan for the Parkersburg-Marietta, WV-OH Area	Wood County	09/08/06	5/8/07; 72 FR 2967
		08/25/08	10/30/08; [Insert page number where the document begins]	Reallocation of emissions from the existing “safety margin” to increase the available motor vehicle emission budgets for highway vehicles.
*         *         *         *         *         *         *

* * * * *

Footnotes

1.  EPA filed a petition for rehearing with the Court of Appeals for the District of Columbia Circuit on September 24, 2008.