Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Determination of Attainment and Redesignation of the City of Weirton PM10

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is determining that the City of Weirton PM₁₀ nonattainment area (the Weirton area) has attained the National Ambient Air Quality Standard (NAAQS) for PM₁₀. This determination is based on three years of complete, quality-assured, ambient air quality monitoring data for the years 2000-2002 which demonstrate that the NAAQS for PM₁₀ has been attained in the area. On the basis of this determination, EPA is also determining that certain attainment demonstration requirements along with other related requirements of the Clean Air Act (CAA), are no applicable to the Weirton area. EPA is also approving the West Virginia Department of Environmental Protection's (WVDEP) request to redesignate the Weirton area to attainment of the NAAQS for PM₁₀. In conjunction with its approval of this redesignation request, EPA is also approving WVDEP's 10-year maintenance plan for the Weirton area as a revision to the West Virginia State Implementation Plan (SIP). EPA is taking these actions in accordance with the requirements of the Clean Air Act.

DATES:

This rule is effective on December 27, 2004 without further notice, unless EPA receives adverse written comment by November 26, 2004. 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-0001 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: Morris.makeba@epa.gov.

D. Mail: R03-OAR-2004-WV-0001, Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP11, 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-0001. 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 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 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 material to be incorporated by reference are available at the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460. 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:

Linda Miller, (215) 814-2068 , or by e-mail at miller.linda@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Under the CAA, EPA may redesignate areas to attainment if sufficient data are available to warrant such changes and the area meets the criteria contained in section 107(d)(3) of the CAA. These criteria include full approval of a maintenance plan for the area. The requirements for a maintenance plan are found in section 175A of the CAA. The Weirton area, located in Hancock County and Brooke County (part), was classified as an area likely to be in violation of the PM₁₀ NAAQS on August 7, 1987 (52 FR 29383). On August 14, 1989, the Oak Street monitoring site in the Weirton area recorded the fourth exceedance of the 24-hour PM₁₀ NAAQS in a three-year period. The Weirton area was designated by EPA as a moderate PM₁₀ nonattainment area on December 21, 1993 (58 FR 67334). The Weirton area has monitored attainment of the NAAQS for PM₁₀ since 1998.

II. Summary of State Submittal

On May 24, 2004, the WVDEP submitted a redesignation request and maintenance plan for the Weirton moderate PM₁₀ nonattainment area. West Virginia's May 24, 2004 submittal provides for the attainment and maintenance of the NAAQS for PM₁₀ in the Weirton area and satisfies the requirements of section 107(d)(3)(E) of the CAA, necessary for redesignation. When approved, the maintenance plan and its contingency measures submitted by the WVDEP for the Weirton area will become part of the West Virginia SIP.

The WVDEP's submittal includes an analysis of quality-assured, ambient air quality monitoring data documenting attainment of the NAAQS for PM₁₀ in the Weirton area and additional documentation to satisfy EPA's policy entitled “Reasonable Further Progress, Attainment demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” signed by John S. Seitz and dated May 10, 1995, commonly referred to as the Clean Data Policy (CDP). EPA is making a clean data determination under its May 10, 1995 CDP for the Weirton area thereby waiving certain part D requirements related to the attainment demonstration, reasonable further progress and their associated contingency measures for the Weirton area. Details of how West Virginia has satisfied the May 10, 1995 CDP are found in III.B.2. of this document.

III. Description and Evaluation of the Redesignation and Maintenance Plan

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation providing that: (1) The Administrator determines that the area has attained the NAAQS; (2) The Administrator has fully approved the applicable implementation plan for the area under Section 110; (3) The Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) The Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175(A); and, (5) The State containing such area has met all requirements applicable to the area under section 110 and part D. The EPA has reviewed the redesignation request submitted by the WVDEP on May 24, 2004 for the Weirton area and finds that its meets the five requirements for redesignation found in section 107(d)(3)(E) of the CAA.

A. Weirton Area Has Data Showing Attainment of the NAAQS for PM10

EPA's review of the monitoring data submitted by West Virginia indicates that the Weirton area has attained, and continues to attain, both the 24-hour and annual PM₁₀ standard. The PM₁₀ monitoring network in the Weirton area consists of four monitors within the nonattainment area. The three years of data used in the redesignation request are the years 2000-2002, inclusive. The maximum annual average for the 3-year period is 32 μ/m³. The maximum 24-hour value is 112 μ/m³. Although the May 24, 2004 formal redesignation request uses 2000-2002 monitoring data, the Weirton area has, in fact, monitored attainment from the years 1998 through 2003, and continues to monitor attainment of the NAAQS for PM₁₀.

B. Weirton Area Has a Fully Approved SIP Under Section 110(k) and Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

1. Section 110 Requirements

General SIP elements are delineated in section 110(a)(2) of Title I, part A. These requirements include but are not limited to the following: submittal of a SIP that has been adopted by the state after reasonable notice and public hearing, provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality, implementation of a permit program, provisions for part C, Prevention of Significant Deterioration (PSD), and part D, New Source Review (NSR) permit programs, criteria for stationary source emission control measures, monitoring and reporting, and provisions for public and local agency participation. The May 24, 2004 SIP submittal provided documentation of that the West Virginia SIP satisfies all of the section 110 and part D requirements of the CAA which apply to the Weirton area. EPA has concluded that the West Virginia SIP for the Weirton area satisfies all of the section 110 SIP requirements of the CAA.

2. Part D Requirements

Before the Weirton area may be redesignated to attainment, it must have fulfilled the applicable requirements of part D of the CAA. As stated previously, EPA had determined that certain part D requirements are no longer required to be met by the Weirton area under EPA's May 10, 1995 CDP. The clean data area approach applies the policy already in place for ozone nonattainment areas to selected PM₁₀ nonattainment areas. The CDP policy reduces the requirements for submittal of certain requirements in nonattainment areas which are demonstrating attainment with the NAAQS. For areas meeting the five criteria discussed in the CDP, states are not required to submit SIP revisions concerning reasonable further progress, attainment demonstration or their associated contingency measures. West Virginia has met the criteria of the CDP for the Weirton area as follows:

(a) The area must be attaining the PM₁₀ NAAQS with the three most recent years of quality assured air quality data. West Virginia has provided evidence of the Weirton area attaining the NAAQS for PM₁₀. There are four PM₁₀ monitors within the Weirton area. There have been no exceedances of the 24-hour standard of 50 μg/m³ during the past five years. The monitors have never recorded a violation of the annual PM₁₀ standard of 150 μg/m³. The Weirton area 24-hour value for calendar years 2000-2002, as found in EPA's Air Quality Subsystem (AQS), is 32 μg/m³. The annual value for the Weirton area during the same time period is 112 μg/m³.

(b) The State must continue to operate an appropriate PM₁₀ air quality monitoring network, in accordance with 40 CFR part 58, in order to verify the attainment status of the area. In the maintenance plan submitted on May 24, 2004, which EPA is approving as part of this rulemaking, the State of West Virginia has committed to continue to monitor the Weirton area.

(c) The control measures for the area, which were responsible for bringing the area into attainment, must be approved by EPA. In its May 24, 2004 submittal, the WVDEP provides details on the emission reductions responsible for bringing the area into attainment. The primary control measures to achieve attainment include making permanent and enforceable the shutdown of specified steel manufacturing and processing facilities which occurred after the Weirton area was designated and classified nonattainment. The request for redesignation specifically cites to a Federally-enforceable consent order between State of West Virginia and the Weirton Steel Corporation. This consent order was approved as a revision to the West Virginia SIP on May 5, 2004 ( 69 FR 24986). The requirements of the consent order resulted in a permanent and enforceable reduction of 1345 tons per year of PM₁₀.

(d) An emissions inventory must be completed for the area. An emission inventory for the Weirton area was completed and submitted as part of the maintenance plan which EPA is approving as part of this rulemaking.

(e) EPA must make a finding that the area attained the 24-hour and annual PM₁₀ NAAQS.

EPA published a notice in the Federal Register on May 16, 2001 announcing that the Weirton area had attained the NAAQS for PM₁₀ (66 FR 27034). Pursuant to the May 10, 1995 CDP, EPA, in this rulemaking, is again determining that the Weirton area has attained the NAAQS for PM₁₀. This determination is based on three years of complete, quality-assured, ambient air quality monitoring data for the years 2000-2002. EPA has determined that West Virginia has met the requirements of the CDP. Therefore, the requirements under CAA section 172(c) for developing an attainment demonstrations, RFP demonstration and their associated contingency measures are waived due to the fact that the Weirton area, by satisfying the criteria of the CDP, has been determined by EPA to have already attained the NAAQS for PM₁₀ and met RFP.

However, any requirements that are connected solely to designation or classification, such as new source review (NSR) and RACM/RACT, will remain in effect. Therefore, the consent order approved as a revision to the West Virginia SIP on May 5, 2004 ( 69 FR 24986) will remain in effect after the Weirton area is redesignated. The Federal requirements for new source review (NSR) in nonattainment areas are contained in section 172(c)(5). The CAA and EPA guidance provide that the requirements of the part D nonattainment area NSR program will be replaced by the state's 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 immediately upon redesignation. West Virginia's regulations for its PSD permitting program were approved into the West Virginia SIP on April 11, 1986 (51 FR 12518). Under the West Virginia SIP, the state's PSD permitting program will become fully effective in the Weirton area immediately upon its redesignation to attainment.

C. The Improvement in Air Quality in the Weirton Area Is Due to Permanent and Enforceable Measures

The emission reductions responsible for bringing the Weirton area into attainment have been made permanent and enforceable by the consent order between the State of West Virginia and the Weirton Steel Corporation (CO-SIP-C-2003-28). As discussed above, this consent order was approved as a revision to the West Virginia SIP on May 5, 2004 (69 FR 24986). These emission reductions are permanent and enforceable. Should any of the shutdown operations or facilities made permanent and enforceable by the consent order seek to be become operational, they would be subject to the West Virginia's SIP NSR requirements, including PSD once the Weirton area is redesignated.

D. West Virginia Has Submitted a Maintenance Plan for the Weirton Area Pursuant to Section 175A 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. The plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the EPA approves a redesignation to attainment. If applicable, eight yeas after the redesignation, West Virginia must submit a revised maintenance plan which demonstrates attainment for the 10 years following the initial 10-year period. To address potential future NAAQS violations, the maintenance plan must contain contingency measure with a schedule for implementation adequate to assure prompt correction of any air quality problems. The State of West Virginia submitted a PM₁₀ Maintenance Plan for the Weirton, West Virginia Area on May 24, 2004. The maintenance plan and associated contingency measures are being approved into the SIP as part of this rulemaking.

Details of the Weirton area maintenance plan and how it satisfies the requirements of 175A are provided in the following paragraphs.

1. Emissions Inventory—West Virginia has submitted an Emission Inventory of sources in the Weirton area for calendar year 2001. The year 2001 is representative of the emissions in the Weirton area during the years 2000-2002, the three years for which quality assured ambient air quality data documenting attainment were submitted for Weirton area. By approving the maintenance plan, EPA is approving the emission inventory.

2. Maintenance demonstration—The maintenance plan includes an emission inventory of emission levels reflective of attainment in the Weirton area and limits emissions to those levels which ensure maintenance of the NAAQS for PM₁₀ in the Weirton area. The PSD review and permitting requirements for any future major source construction of modification and the permanent and enforceable control measures on existing sources are provided in the maintenance plan. Subsequent to redesignation, any major source construction or modification will be subject to the PSD requirements found in West Virginia's SIP, including a demonstration to ensure protection and maintenance of the NAAQS and applicable PSD increments. By approving the maintenance plan, EPA is approving the maintenance demonstration.

3. Continuation of the monitoring network—West Virginia has indicated in the May 24, 2004 maintenance plan that it will continue to monitor for PM₁₀ in the Weirton area in accordance with 40 CFR 53 and 58. By approving the maintenance plan, EPA is approving West Virginia's plan to continue to monitor for PM₁₀ in the Weirton area.

4. Verification of Continued Attainment—The maintenance plan states that the WVDEP will review the monitoring data annually to verify continued attainment. WVDEP will also assess compliance of local facilities. If still required by the CAA, the Weirton area maintenance plan will be reassessed not later than eight years after the area is redesignated to attainment.

5. Contingency Plan—The WVDEP has indicated in the maintenance plan that it will rely on ambient air monitored data to determine the need to implement contingency measures. In the event of an exceedance of the PM₁₀ standard, the WVDEP will review the monitored data, the local meteorology data, and the compliance of local facilities. If all facilities are in compliance with applicable SIP and permit emissions limits, the WVDEP will determine and impose additional control measures necessary to continue to maintain the NAAQS. Upon determination that three exceedances of the 24-hour PM₁₀ standard have occurred within a three-year period the WVDEP will notify companies with emission sources of PM₁₀ in the Weirton area that there may be a need to reduce PM₁₀ emissions to address a potential violation of the NAAQS. Within six months of this notification, the companies must submit a detailed plan of action specifying additional control measures to reduce PM₁₀ emissions, to be implemented no later than 18 months after the notification of a violation of the NAAQS. The additional control measures necessary to ensure attainment will be imposed by WVDEP and submitted to EPA for approval and incorporation into the SIP.

In summary, EPA has determined that West Virginia's May 24, 2004 submittal satisfies the requirements of section 107(d)(3)(E) of the CAA, and is redesignating the Weirton area to attainment for PM₁₀. EPA is also approving the WVDEP's maintenance plan and its associated contingency measures for the Weirton area as a revision to the West Virginia SIP.

IV. Final Action

EPA is determining that the Weirton area has attained the NAAQS for PM₁₀ and has met the requirements of the May 10, 1995 CDP. On the basis of this determination, EPA is also determining that certain attainment demonstration requirements, along with other related requirements of the CAA, are not applicable to the Weirton area. EPA is approving the State of West Virginia's May 24, 2004 request to redesignate the Weirton area to attainment for PM₁₀ and is approving the associated maintenance plan as a revision to the West Virginia SIP.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment as there was opportunity for stakeholder input in the SIP development process. 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 27, 2004 without further notice unless EPA receives adverse comment by November 26, 2004. 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 December 27, 2004. Filing a petition for reconsideration by the Administrator of this final rule to redesignate the Weirton area to attainment for PM₁₀ 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 to approve West Virginia's redesignation request and maintenance plan for the Weirton PM₁₀ area 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
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

40 CFR Part 81

• Air Pollution Control
• National parks
• Wilderness areas

40 CFR part 52 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 et seq.

Subpart XX—West Virginia

2. Section 52.2520 is amended by adding paragraph (c)(60) to read as follows:

PART 81—[AMENDED]

Subpart C—Section 107 Attainment Status Designations

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

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

2. In § 81.349, the table for “West Virginia—PM ₁₀” is amended by revising the entry for Hancock and Brooke Counties (part): The City of Weirton to read as follows: