US EPA

FEDERAL REGISTER
VOL. 58, No. 157
Proposed Rules

ENVIRONMENTAL PROTECTION AGENCY (EPA)

40 CFR Parts 52 and 81
[VA18-1-5964 and VA17-1-5965; FRL-4693-8]

Approval and Promulgation of Air Quality Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Commonwealth of Virginia; Approval of the Maintenance Plan for the Richmond Area and Redesignation of the Richmond Ozone Nonattainment Area to Attainment

58 FR 43609

DATE: Tuesday, August 17, 1993
ACTION: Proposed rule.

SUMMARY: On November 12, 1992, the Commonwealth of Virginia's Department of Environmental Quality (VDEQ) submitted a request to EPA to redesignate the Richmond moderate ozone nonattainment area from nonattainment to attainment. On November 12, 1992, the VDEQ also submitted a maintenance plan for the Richmond area as a revision to the Virginia State Implementation Plan (SIP). The EPA is proposing to redesignate the Richmond ozone nonattainment area from nonattainment to attainment and proposing to approve the maintenance plan submitted by the VDEQ as a revision to the Virginia SIP because the relevant requirements set forth in the Clean Air Act, as amended in 1990, (CAA) have been met. These actions are being taken in accordance with the CAA.

DATES: Comments must be received on or before September 16, 1993.

ADDRESSES: Comments should be sent to Thomas J. Maslany, Director, Air, Radiation, and Toxics Division, U.S. Environmental Protection Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. The state submittal and the Technical Support Document (TSD) prepared on these proposed actions is available for public review at the above address and at the Virginia Department of Environmental Quality, P.O. Box 10089, Richmond, Virginia, 23240;

FOR FURTHER INFORMATION CONTACT: Cristina M. Schulingkamp, (215) 597-0545.

SUPPLEMENTARY INFORMATION:

I. Background

The Clean Air Act, as amended in 1977 (1977 Act) required areas that were designated nonattainment based on a failure to meet the ozone national ambient air quality standard (NAAQS) to develop SIPs with sufficient control measures to expeditiously attain and maintain the standard. (1977 Act, sections 110(a)(1) and 172.) The Richmond nonattainment area was designated under section 107 of the 1977 Act as nonattainment with respect to the ozone NAAQS on March 3, 1978. (40 CFR 81.347) In accordance with section 110 of the 1977 Act, the Commonwealth of Virginia submitted a part D ozone SIP on January 12, 1979, which EPA approved as meeting the requirements of section 110 and Part D of the 1977 Act. In its SIP, the Commonwealth of Virginia projected that the Richmond nonattainment area would attain the ozone standard by December 31, 1982. The area failed to attain the standard. On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA) were enacted. Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q. The nonattainment designation of the Richmond area continued by operation of law according to section 107(d)(1)(C)(i) of the CAA, as amended in 1990; furthermore, it was classified by operation of law as moderate for ozone pursuant to section 181(a)(1) of the CAA. See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.347.

The Richmond ozone nonattainment area more recently has attained the ozone NAAQS, based on air quality data from 1989 through 1991. In an effort to comply with the amended CAA and to ensure continued attainment of the NAAQS, on November 12, 1992 the VDEQ submitted an ozone maintenance plan for the Richmond area as a revision to the Virginia SIP. On November 12, 1992, the Commonwealth of Virginia also requested that EPA redesignate the Richmond area to attainment with respect to the ozone NAAQS.

II. Evaluation Criteria

According to section 107(d)(1)(E) of the CAA, five specific requirements must be met in order for EPA to redesignate an area from nonattainment to attainment:

1. The area must have attained the applicable NAAQS;

2. The area has met all relevant requirements under section 110 and part D of the Act.

3. The area has a fully approved SIP under section 110(k) of the Act;

4. The air quality improvement must be permanent and enforceable; and

5. The area must have a fully approved maintenance plan pursuant to section 175A of the Act.

III. Review of Virginia's Submittal

The Commonwealth of Virginia's November 12, 1992 redesignation request for the Richmond area included information and documentation sufficient for EPA to determine that the five requirements of section 107, noted above have been met. Following is a brief description of how each of these requirements has been fulfilled. Because the maintenance plan is a critical element of the redesignation request, EPA will discuss its evaluation of the maintenance plan under its analysis of the redesignation request. A Technical Support Document (TSD) has been prepared by EPA on these rulemaking actions, dated July 23, 1993. That TSD is available for public inspection at the EPA Regional Office listed in the ADDRESSES section of this notice.

1. Attainment of the Ozone NAAQS

The submittal contains an analysis of ozone air quality data which is relevant to the maintenance plan and to the redesignation request. Ambient ozone monitoring data for 1989 through 1991 show attainment of the ozone NAAQS in the Richmond area. See 40 CFR 50.9 and appendix H. Because the Commonwealth's November 12, 1992 request for redesignation included documentation that the Richmond ozone nonattainment area has complete, quality-assured data showing attainment of the standard over the most recent consecutive three calendar year period, the Richmond area has met the first statutory criterion for redesignation to attainment of the ozone NAAQS found at section 107(d)(3)(E)(i) of the CAA.

It is important to note that the 1992 and 1993 ozone seasons (April through October of each calendar year) will have passed prior to the time EPA would be taking final action on today's proposal to redesignate the Richmond area to attainment. There were no violations of the ozone standard in the Richmond area in 1992. EPA will not take final action to redesignate the Richmond area to attainment until it has reviewed the relevant monitoring data and determined that the area did not violate the ozone standard during the 1993 ozone season.

2. Meeting Applicable Requirements of Section 110 and Part D

As previously stated, EPA fully approved the Commonwealth's SIP for the Richmond area as meeting the requirements of section 110(a)(2) and part D of the 1977 Act. The amended CAA, however, modified section 110(a)(2) and, under part D, revised section 172 and added new requirements for all nonattainment areas. Therefore, for purposes of redesignation, to meet the requirement that the SIP contain all applicable requirements under the Act, EPA has reviewed the SIP to ensure that it contains all measures that were due under the amended Act as of November 12, 1992, the date the Commonwealth submitted its redesignation request.

2.A. Section 110 Requirements

Although section 110 was amended by the CAA, the Richmond SIP meets the requirements of amended section 110(a)(2). A number of the requirements did not change in substance and, therefore, EPA believes that the pre-amendment SIP met these requirements. As to those requirements that were amended, See 57 FR 27936 and 23939 (June 23, 1993), many are duplicative of other requirements of the Act. EPA has analyzed the SIP and determined that it is consistent with the requirements of amended section 110(a)(2). It contains enforceable emission limitations, it requires monitoring, compiling, and analyzing ambient air quality data, it requires preconstruction review of new major stationary sources and major modifications to existing ones, it provides for adequate funding, staff, and associated resources necessary to implement its requirements, and requires stationary source emissions monitoring and reporting.

2.B. Part D Requirements

Before the Richmond ozone nonattainment area may be redesignated to attainment, it also must have fulfilled applicable requirements of part D. Under part D, an area's classification indicates the requirements to which it will be subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas, classified as well as nonclassifiable. Subpart 2 of part D establishes additional requirements for nonattainment areas classified under table 1 of section 181(a). The Richmond ozone nonattainment area was classified as moderate. (See 56 FR 56694, codified at 40 CFR 81.347). Therefore, in order to be redesignated to attainment, the State must meet the applicable requirements of subpart 1 of part D-specifically sections 172(c) and 176- as well as the applicable requirements of subpart 2 of part D.

2.B.1. Subpart 1 of Part D-Section 172(c) Provisions

Under section 172(b), the section 172(c) requirements are applicable as determined by the Administrator, but no later than 3 years after an area has been designated as nonattainment under the amended Act. EPA has not determined that these requirements are applicable to ozone nonattainment areas on or before November 12, 1992-the date the Commonwealth submitted a complete redesignation request for Richmond. Therefore, the Commonwealth was not required to meet these requirements for purposes of redesignation.

2.B.2. Subpart 1 of Part D-Section 176 Conformity Provisions

Section 176 of the Act requires States to develop transportation/air quality conformity procedures which are consistent with Federal conformity regulations. Section 176 provides that EPA must develop federal conformity regulations, requiring States to submit these procedures as a SIP revision by November 15, 1992. EPA has not yet promulgated final conformity regulations; therefore no regulatory submittal date has been established. If EPA determines the conformity regulations to be applicable to attainment areas, the Commonwealth will revise the SIP to be consistent with the final Federal regulations on conformity upon promulgation of the final rules.

2.B.3. Subpart 2 of Part D-Section 182 Provisions for Ozone Nonattainment Areas

The Richmond nonattainment area is classified as moderate. The requirements of subpart 2 of part D of the CAA for moderate areas are found at section 182(b). As of November 12, 1992, the date Virginia submitted a complete redesignation request for the Richmond nonattainment area, the Richmond area was required to meet the provisions of section 182(a)(2)(A) to correct its Reasonably Available Control Technology (RACT) requirements in effect prior to enactment of the 1990 CAA amendments. Virginia submitted those RACT corrections as SIP revisions to EPA on May 14, 1991 and June 20, 1991. EPA proposed approval of these RACT corrections on June 25, 1993 (58 FR 34392). EPA must take final rulemaking action to approve these RACT corrections prior to or in concert with any final action redesignating the Richmond area to attainment in order to satisfy section 107(d)(3)(E)(v) of the CAA for redesignation.

Although not required in order to meet section 110(k) or Part D because the Commonwealth submitted its request that EPA redesignate the Richmond area to attainment on November 12, 1992, the VDEQ has adopted and submitted the following regulations as SIP revisions applicable to the Richmond nonattainment area: Annual Emission Statement regulations, Stage II Vapor Recovery regulations, and amended NSR provisions including the offset ratio of 1.15:1 for moderate areas. These SIP revisions are the subject of separate rulemaking notices. It is important to note that these requirements will, in addition to the existing SIP's RACT requirements, continue to be effective in the Richmond area as part of the Commonwealth's maintenance plan even if the area is redesignated to attainment.

3. Fully Approved SIP Under Section 110(k) of the Act

As stated previously, upon final approval of the RACT corrections noted above, the Commonwealth will have a fully approved SIP under section 110(k), which also meets the applicable requirements of section 110 and part D as discussed above. Therefore, the redesignation criterion of section 107(d)(3)(E)(ii) will have been met by the time EPA takes final action redesignating the area to attainment.

4. Improvement in Air Quality Due to Permanent and Enforceable Measures

Under the pre-amended Act, EPA approved the Commonwealth's SIP control strategy for the Richmond nonattainment area, satisfied that the rules and the emission reductions achieved as a result of those rules were enforceable. Since enactment of the amended Act, the Commonwealth submitted corrections to its RACT regulations as identified above. EPA finds that these additional, recently adopted measures contribute to the permanence and enforceability of reductions in ambient ozone levels in the Richmond area. Between 1988 and 1990, because of permanent and enforceable state and federal provisions, emissions of volatile organic compounds (VOCs) were reduced by 24.0 tons/day and emissions of nitrogen oxides were reduced by 1.4 tons/day. Most of the reductions came from mobile sources and gasoline marketing-related activities due to the changes in the actual volatility, expressed as Reid Vapor Pressure (RVP), of gasoline marketed for use in the Richmond area from 9.9 RVP to 8.4 RVP and the increase in the percent of automobiles operated in the Richmond area meeting more stringent emission standards. It must be noted here that since 1992 the federal RVP requirement of 7.8 has been effective in the Richmond area. The Commonwealth's maintenance plan requires the continuation of the federal RP program and their implementation of the federal reformulated gasoline program. These reductions due to lower RVP and more stringent tailpipe standards resulting from the Federal Motor Vehicle Control Program were determined using the mobile emission inventory model MOBILE5 and the relevant vehicle miles traveled data.

Permanent and enforceable decreases in VOCs at stationary sources contributed a small amount to the total VOC reduction in the Richmond area. In association with its emission inventory, the Commonwealth demonstrated that point source VOC emissions were not artificially low due to local economic downturn during the period in which the Richmond area's ambient air quality came into attainment. Reductions due to decreases in production levels or from other unenforceable scenarios such as voluntary reductions were not included in the determination of the emission reductions. The point source growth rate in the Richmond area was determined to be 1.21 using new and modified source data from the period of 1988 to 1990. The determination of emission reductions considered such factors as allowable emission rates and production capacities in order to show that the improvements were the result of implemented controls.

EPA finds that the combination of state measures contained in the SIP and federal measures have resulted in permanent and enforceable reductions in ozone precursors that have allowed the Richmond area to attain the NAAQS, and therefore, that the redesignation criterion of section 107(d)(3)(E)(iii) has been met.

5. Fully Approved Maintenance Plan Under Section 175A

The EPA is proposing approval of the Commonwealth's maintenance plan for the Richmond area because EPA finds that Virginia's submittal meets the requirements of section 175A. If EPA determines after notice and comment that it should give final approval to the maintenance plan, the Richmond nonattainment area will have a fully approved maintenance plan in accordance with section 175A.

Section 175A of the Act sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the area is redesignated. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the ten years following the initial ten-year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation, adequate to assure prompt correction of any air quality problems.

5.A. Emissions Inventory-Base Year Inventory

The Commonwealth of Virginia submitted comprehensive inventories from area, stationary, mobile and biogenic sources using 1990 as the base year for calculations to demonstrate maintenance. The 1990 VOC inventory is considered most representative of attainment conditions because no violations occurred in 1990 and it reflects the typical inventory for the three-year period demonstrating attainment of the standard. The Commonwealth's submittal contains detailed inventory data and summaries by source categories. The Commonwealth's submittal also contains information related to how it comported with EPA's guidance, which model and emission factors were used (note MOBILE5 was used), how VMT data was generated, what RVP was considered in the base year, and other technical information verifying the validity of the Richmond emission inventory.

5.B. Demonstration of Maintenance-Projected Inventories

In addition to the continued sale and use of lower RVP gasoline (7.8) and fleet turnover to automobiles meeting more stringent emission standards, mobile source emission projections are dependent upon the implementation of the federal reformulated gasoline program and Stage II Vapor Recovery controls for motor vehicle refueling in the Richmond area. The Commonwealth of Virginia adopted regulations for Stage II Vapor Recovery on October 5, 1992 which became effective in the Commonwealth on January 1, 1993. The Commonwealth formally submitted its Stage II Vapor Recovery Program to EPA as a SIP revision on November 5, 1992.

EPA's proposed action to approve that SIP revision is the subject of a separate rulemaking notice. As previously noted, the Virginia's Stage II Vapor Recovery Program, the federal RVP program and the eventual implementation of the federal reformulated gasoline program must remain in effect in the Richmond area even if it is redesignated because those programs are part of the Commonwealth's maintenance plan. Mobile source emissions were projected using MOBILE5 with a VMT growth rate of 2.69 percent per year based on historic increases. Point and area source emission projections assume the continued use of RACT on all source types, and the preconstruction permit program for new and modified major sources including lowest achievable emission rate and offset requirements. A point source growth rate of 1.21 percent was used to project emissions from new sources based on the growth rate data from 1988 to 1992. Total emissions were projected from the 1990 base year out to year 2005. The projections demonstrate that the ozone standard will be maintained i.e., emissions are not expected to exceed the level of the base year inventory during this time period.

The TSD prepared for this rulemaking contains summary charts of the base year inventory and of the projected inventory by source categories.

5.C. Verification of Continued Attainment

Continued attainment of the ozone NAAQS in the Richmond area depends, in part, on the Commonwealth's effort toward tracking indicators of continued attainment during the maintenance period. The Commonwealth will track the status and effectiveness of the maintenance plan by periodically updating the emissions inventory. The VDEQ has committed to perform this tracking on an annual basis in order to enable the Commonwealth to implement the contingency measures of its maintenance plan as expeditiously as possible.

The Commonwealth's annual update will indicate new source growth, and other variations from the attainment inventory, including changes in VMT, traffic patterns and other MOBILE5 factors. The Commonwealth will continue to monitor ambient ozone levels by operating its ambient ozone air quality monitoring network in accordance with 40 CFR part 58. In cases where measured mobile source parameters have changed over time, the Commonwealth recognizes that it may also need to conduct studies to determine the need for and location of additional ambient monitors.

5.D. Contingency Plan

The level of emissions in the Richmond area will largely determine its ability to stay in compliance with the ozone NAAQS in the future. Despite the Commonwealth's best efforts to demonstrate continued compliance with the NAAQS, the Richmond area may exceed or violate the NAAQS. Therefore, Virginia has provided contingency measures with a schedule for implementation in the event of future ozone air quality problems. The Commonwealth has developed contingency provisions in the maintenance plan that address two situations.

The first situation would be that there is a potential increase in the emission inventory that "crosses" the plan's so-called "emissions action line" and "invades" the "emission safety margin," but does not exceed the 1990 emissions level cap. In this instance, the VDEQ will monitor the observed growth rate on a yearly basis. Updated EPA-approved methods will be used to estimate emissions. The VDEQ will determine if emissions are expected to exceed the emissions level predicted for year 2005. If this "emissions action line" is projected to be exceeded in 2005 or any year prior to 2005, contingency measures will be implemented as follows. For post-1994 emissions above the "action line," with no recorded (monitored) ozone violations, the VDEQ will: (1) Prepare a complete, comprehensive emission inventory; and (2) require implementation of a basic automobile inspection and maintenance (I/M) program (enabling I/M legislation is already in place for this contingency).

The second situation which would trigger the maintenance plan's contingency measures would be monitored violations of the ozone NAAQS. If more than one exceedance of the ozone standard of 0.12ppm occurs in a single year, the action line will be considered crossed for the purposes of the following:

(1) For post-1994 violations of the ozone standard, require VOC emission offsets for new and modified major sources at a ratio higher than 1.15 to 1.

(2) For post-1994 violations after #1 has been implemented, require VOC controls on non-major sources. Source selection will be based on emission reduction needs/potential and cost effectiveness.

(3) For post-1994 violations after #1 and #2 have been implemented, require implementation of one or more transportation control measures (TCMs) sufficient to achieve at least a 0.5 tons/day reduction in actual VOC emissions. Measures will be selected based on emission reduction needs/potential and cost effectiveness. Transportation measures include trip reduction programs, including but not limited to employer-based transportation management plans, area-wide ride share programs, work schedule changes, and telecommuting; transit improvements; traffic flow improvements; alternate fuel programs or vehicle fleet operations; vehicle anti-tampering programs; and any other transportation related measures deemed appropriate. EPA finds that the contingency measures provided in the maintenance plan meet the requirements of section 175A(d) of the CAA.

The VDEQ will assess the need for these contingency measures after each ozone season, and in either situation would implement them as necessary prior to the next ozone season. EPA finds that the contingency measures provided in the maintenance plan meet the requirements of section 175A(d) of the CAA.

5.E. Subsequent Maintenance Plan Revisions

In accordance with section 175A(b) of the Act, the Commonwealth has agreed to submit a revised maintenance SIP eight years after the area is redesignated to attainment. Such revised SIP will provide for maintenance for the additional ten years.

EPA has determined that the maintenance plan adopted by the Commonwealth of Virginia and submitted to EPA on November 12, 1992 meets the requirements of section 175A of the CAA. Therefore, EPA is proposing to approve the maintenance plan submittal. In addition EPA has determined that upon final approval of the maintenance plan the provisions of section 107(d)(3)(E)(iv) for redesignation will have been met.

IV. Proposed Action

EPA is soliciting public comments on this notice and on issues relevant to EPA's proposed action. Comments will be considered before taking final action. Interested parties may participate in the federal rulemaking procedure by submitting written comments to the person and address listed in the ADDRESSES section at the beginning of this notice.

Proposed Action: EPA proposes to approve the ozone maintenance plan for the Richmond area submitted by the Commonwealth of Virginia on November 12, 1992 as a revision to the Virginia SIP because it meets the requirements of section 175A. In addition, EPA is proposing to redesignate the Richmond nonattainment area to attainment, subject to final approval of the maintenance plan and the VOC RACT corrections as SIP revisions, because of the Agency has determined that the provisions of section 107(d)(3)(E) of the CAA for redesignation of nonattainment areas to attainment have been met.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements. Ozone State Implementation Plans (SIPs) are designed to satisfy the requirements of Part D of the Clean Air Act and to provide for attainment and maintenance of the ozone NAAQS. Today's proposed redesignation action should not be interpreted as authorizing the Commonwealth of Virginia to delete, alter, or rescind any of the VOC emission limitations and restrictions contained in the currently approved ozone SIP. Changes to the ozone SIP's regulations rendering them less stringent than those contained in the EPA approved plan cannot be made unless a revised plan for attainment and maintenance is submitted to and approved by EPA.

Unauthorized relaxations, deletions, and changes could result in both a finding of nonimplementation under section 173(b) of the CAA and in a SIP deficiency call made pursuant to section 110(k)(5).

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. SIP approvals under section 110 and subchapter I, Part D of the CAA do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the federal SIP-approval does not impose any new requirements, it does not have any economic impact on any small entities. Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. Accordingly, I certify that the approval of the redesignation request will not have an impact on any small entities.

The Office of Management and Budget has exempted this rule from the requirements of section 3 of Executive Order 12291.

List of Subjects

40 CFR Part 52

Air pollution control, Hydrocarbons, Intergovernmental relations, and Ozone.

40 CFR Part 81

Air pollution control, National parks, Wilderness areas.

Authority: 42 U.S.C. 7401-7671q.

Dated: July 23, 1993.

Stanley L. Laskowski, Acting Regional Administrator, Region III.

[FR Doc. 93-19678 Filed 8-16-93; 8:45 am]

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