[Federal Register Volume 70, Number 158 (Wednesday, August 17, 2005)]
[Rules and Regulations]
[Pages 48287-48290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16292]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-WV-0001; FRL-7954-3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Attainment Demonstration for the Eastern Panhandle 
Region Ozone Early Action Compact Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the West 
Virginia State Implementation Plan (SIP). This revision consists of an 
Early Action Compact (EAC) Plan that will enable the Eastern Panhandle 
Region Ozone EAC Area to demonstrate attainment and maintenance of the 
8-hour ozone national ambient air quality (NAAQS) standard. This action 
is being taken under the Clean Air Act (CAA or Act).

DATES: This final rule is effective on September 16, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2005-WV-0001. All documents 
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 
for public inspection 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

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MacCorkle Avenue, SE., Charleston, West Virginia 25304-2943.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On May 17, 2005 (70 FR 28264), EPA published a notice of proposed 
rulemaking (NPR) for the State of West Virginia. The NPR proposed 
approval of the attainment demonstration and the Early Action Plan 
(EAP) for the West Virginia Eastern Panhandle Region EAC Area, which 
consists of Berkeley and Jefferson Counties. The formal SIP revision 
was submitted by the West Virginia Department of Environmental 
Protection on December 29, 2004. Other specifics of the State's SIP 
revision for the Eastern Panhandle Region Ozone EAC Area, and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here. On June 16, 2005, EPA received adverse comments 
on its May 17, 2005, NPR. A summary of the comments submitted and EPA's 
responses are provided in Section II of this document.

II. Summary of Public Comments and EPA Responses

    Comment: One commenter opposes the approval of the SIP revision for 
the Eastern Panhandle Region Ozone EAC Area because the Area is in 
violation of the 8-hour ozone standard. The commenter also states that 
the SIP revision provides for the deferment of a nonattainment 
designation until a future date, potentially as late as December 31, 
2007, and relieves the Area of obligations under Title I, subpart D of 
the CAA. Although the commenter is supportive of the goal of addressing 
proactively the public health concerns associated with ozone pollution, 
the commenter believes that EPA does not have legal authority to defer 
effective dates of designations or to allow areas to be relieved of 
obligations under Title I, part D of the CAA while they are violating 
the 8-hour ozone standard or are designated nonattainment of that 
standard.
    Response: EPA first announced the EAC process in a June 19, 2002 
letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, 
Texas Commission on Environmental Quality, followed by a November 14, 
2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, 
EPA's Office of Air and Radiation to the EPA Regional Administrators, 
entitled, ``Schedule for 8-Hour Ozone Designations and its Effect on 
Early Action Compacts.'' EPA formalized the EAC process in the 
designation rulemaking on April 30, 2004 (69 FR 23858). In the 
designation rule, EPA designated 14 EAC areas as nonattainment, but 
deferred the effective date of the designation until September 30, 
2005. The EAC program gives local areas the flexibility to develop 
their own approach to meeting the 8-hour ozone standard, provided the 
participating communities are serious in their commitment to control 
emissions from local sources earlier than the CAA would otherwise 
require. By involving diverse stakeholders, including representatives 
from industry, local and State governments, and local environmental 
citizens' groups, a number of communities are discussing for the first 
time the need for regional cooperation in solving air quality problems 
that affect the health and welfare of its citizens. People living in 
these areas that realize reductions in pollution levels sooner will 
enjoy the health benefits of cleaner air sooner than might otherwise 
occur. EPA believes this proactive approach involving multiple, diverse 
stakeholders is beneficial to the citizens of the area by raising 
awareness of the need to adopt and implement measures that will reduce 
emissions and improve air quality.
    EPA disagrees with the comments that this action on this SIP 
revision for the Eastern Panhandle Region Ozone EAC Area defers the 
nonattainment designation for this Area. In our May 17, 2005, NPR (70 
FR 28264), EPA proposed approval of an attainment demonstration and EAP 
SIP revision for the Eastern Panhandle Region Ozone EAC Area. This SIP 
revision includes an attainment demonstration which demonstrates 
attainment of the 8-hour ozone NAAQS in the Eastern Panhandle Region 
Ozone EAC Area by December 31, 2007, and also demonstrates maintenance 
of the 8-hour NAAQS for five years following the attainment date. As 
noted in the proposed action, approval of the attainment demonstration 
and EAP constitutes one of several milestones that an area must meet in 
order to participate in the EAC process. While approval of this plan is 
a prerequisite for an extension of the deferred effective date of the 
designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed 
approval of this SIP revision nor this final action approving the SIP 
purports to extend the deferral of the effective date of the 
nonattainment designation for this Area. In a separate rulemaking (69 
FR 23858, April 30, 2004), EPA deferred the effective date of the air 
quality designations of all 14 EAC areas to September 30, 2005. In the 
April 30, 2004, final rule, EPA responded to comments received during 
the comment period for this final rule. In a separate proposed rule (70 
FR 33409, June 8, 2005), EPA proposed to extend the deferral of the 
effective date of the air quality designations for these 14 EAC areas. 
EPA will consider comments regarding its legal authority in the final 
rule associated with the June 8, 2005, proposed rule.
    Regardless of whether EPA's separate actions deferring the 
effective date of the nonattainment designation for this Area are 
appropriate, EPA sees no basis to disapprove the attainment and 
maintenance plan. The provisions of the statute generally provide that 
areas must demonstrate attainment and maintenance of the NAAQS. See, 
e.g., CAA section 110(a)(1) (requiring areas to submit plans providing 
for ``implementation, maintenance, and enforcement'' of each NAAQS) and 
CAA section 172(c)(1) (requiring nonattainment areas to submit plans 
demonstrating attainment of the NAAQS). The commenter has provided no 
substantive reason why this plan does not demonstrate attainment and 
maintenance of the 8-hour standard. Therefore, this action approving 
the attainment demonstration and maintenance plan is appropriate.

III. Final Action

    EPA is approving the attainment demonstration and the EAP for the 
West Virginia Eastern Panhandle Region Ozone EAC Area. The modeling of 
the ozone and ozone precursor emissions from sources affecting the 
Eastern Panhandle Region EAC Area demonstrates that the specified 
control strategies will provide for attainment of the 8-hour ozone 
NAAQS by December 31, 2007, and maintenance of that standard through 
2012.

IV. 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

[[Page 48289]]

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 October 17, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
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, approving the attainment demonstration and 
the EAP for the Eastern Panhandle Region Ozone EAC Area, 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, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: August 9, 2005.
Donald S. Welsh,
Regional Administrator, Region III.


0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
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

0
2. In Sec.  52.2520, the table in paragraph (e) is revised by adding 
the entry for the Attainment Demonstration and Early Action Plan for 
the Eastern Panhandle Region Ozone Early Action Compact Area at the end 
of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

                            EPA-Approved Nonregulatory and Quasi-Regulatory Material
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                                                                State
 Name of nonregulatory SIP revision   Applicable geographic   submittal      EPA approval date      Additional
                                              area               date                               explanation
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                                                  * * * * * * *
Attainment Demonstration and Early   Berkeley and Jefferson     12/29/04  8/17/05 [Insert
 Action Plan for the Eastern          Counties.                            Federal Register page
 Panhandle Region Ozone Early                                              number where the
 Action Compact Area.                                                      document begins].
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[FR Doc. 05-16292 Filed 8-16-05; 8:45 am]
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