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Proposed Rule

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

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Environmental Protection Agency (EPA).


Proposed rule.


EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of West Virginia. This proposed 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).


Written comments must be received on or before June 16, 2005.


Submit your comments, identified by Regional Material in EDocket (RME) ID Number R03-OAR-2005-WV-0001 by one of the following methods:

A. Federal eRulemaking Portal: Follow the on-line instructions for submitting comments.

B. Agency Web site:​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:

D. Mail: R03-OAR-2005-WV-0001, David Campbell, Chief, Air Quality Planning Branch, Mailcode 3AP21, 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-2005-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​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, or e-mail. The EPA RME and the Federal 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, 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​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 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.

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Rose Quinto, (215) 814-2182, or by e-mail at

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On December 29, 2004, the State of West Virginia submitted a revision to its SIP. This revision consists of the Early Action Plan (EAP) for the Eastern Panhandle Region Ozone EAC Area which consists of Berkeley and Jefferson Counties.

I. Background

In 1997, EPA established a new 8-hour ozone NAAQS that addresses the longer-term impact of ozone at lower levels. As such, the new standard is set at a lower level, 0.08 parts per million (ppm) than the previous 1-hour standard, 0.120 ppm, and is more protective of human health. Attainment of the 8-hour ozone standard is determined by averaging three years of the fourth highest 8-hour ozone levels as recorded by ambient air quality monitor(s) in an area. This number, called the design value, must be lower than 85 parts per billion (ppb) to comply with the standard. Currently, Berkeley and Jefferson Counties' official design value based on quality-assured air quality data for the period 2001-2003 is 86 ppb.[1]

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To begin to address the elevated ozone concentrations in the Eastern Panhandle Region, the West Virginia Department of Environmental Protection (WVDEP) investigated voluntary actions that could be implemented proactively to improve air quality. West Virginia found the most promising of all the options explored is EPA's EAC program. EAC's are voluntary agreements entered into by affected local jurisdictions, state regulatory agencies, and EPA to develop EAPs to reduce ozone precursor pollutants, such as nitrogen oxides (NOX) and volatile organic compounds (VOCs) and improve local air quality. The goal of the EAP is to bring about a positive change to local air quality on a schedule that is faster than the traditional regulatory nonattainment area designation and air quality planning process. These plans include the same components of traditional SIPs for nonattainment areas: emissions inventories, control strategies, schedules and commitments, and a demonstration of attainment based on photochemical modeling.

The goal of an EAP is to develop a comprehensive strategy that will allow an area to achieve attainment of the 8-hour ozone standard by 2007. This goal is accomplished by selecting and implementing the local ozone precursor pollutant control measures and other state and nationally-implemented control measures that reduce emissions and allows the area to comply with the NAAQS for ozone. Areas successful in developing a plan that demonstrates attainment of the 8-hour ozone standard by 2007 will receive a deferral of the effective date of the nonattainment designation for the area from EPA. This deferral will remain in place as long as certain milestones are met, such as implementation of local controls by 2005. If the interim milestones are met and the area demonstrates attainment of the standard during the period from 2005 to 2007, based on quality-assured air quality data, then the nonattainment designations will be withdrawn by EPA and the area will face no further regulatory requirements. If an area fails at any point in the process, the nonattainment designation will become effective, along with the associated regulatory requirements of such a designation.

In December 2002, a number of states entered into EAC agreements, pledging to reduce emissions earlier than required by the Act for compliance with the 8-hour ozone standard. These states and local communities had to meet specific criteria and agreed to meet certain milestones for development and implementation of their individual EAC agreements. States with communities participating in the EAC program had to submit plans for meeting the 8-hour ozone standard by December 31, 2004, rather than the June 15, 2007 deadline applicable to all other areas not meeting the standard. The EACs required communities to develop and implement air pollution control strategies, account for emissions growth, and demonstrate attainment and maintenance of the 8-hour ozone standard. Greater details on the EAC program are explained in EPA's December 16, 2003 (68 FR 70108) proposed Federal Register notice entitled, “Deferral of Effective Date of Nonattainment Designations for 8-hour Ozone National Ambient Air Quality Standards for Early Action Compact Areas.” In December 2002, the Eastern Panhandle Region entered into an EAC with both West Virginia and EPA. This compact was signed by all parties involved and then submitted to EPA by the required date of December 31, 2002.

On April 15, 2004, EPA designated all areas for the 8-hour ozone standard. EPA deferred the effective date of nonattainment designations for EAC areas that were violating the 8-hour standard, but continued to meet their established EAC milestones. On April 30, 2004 (69 FR 23858), EPA published its formal air quality designations and classifications for the 8-hour ozone standard. This action included the deferral of the effective date for all nonattainment areas that entered into EACs and developed EAPs, including the Eastern Panhandle Region Ozone EAC Area. Specifically, the Berkeley and Jefferson Counties were designated as a “basic” nonattainment area with the effective date of the designation deferred to September 30, 2005. In a separate notice, EPA expects to continue to officially defer the effective date of nonattainment designation for this Area, among others, in the future so long as the Area continues to fulfill its EAC obligations, including semi-annual reporting requirements, implementation of the measures in its EAP by December 31, 2005, and a progress assessment by June 30, 2006. EPA anticipates extending the currently effective deferral for all EAC areas from September 30, 2005 until December 31, 2006, provided the above conditions are met.

II. Summary of SIP Revision

A. Content of the Eastern Panhandle Region EAC Attainment Demonstration

As part of its EAP plan, West Virginia developed an attainment demonstration supported by an ozone photochemical modeling study developed for the Eastern Panhandle Region EAC Area. The attainment demonstration identifies a set of measures that will result in emission reductions and provides analyses that predict that the measures result in ambient air quality concentrations that meet the 8-hour ozone standard in the Eastern Panhandle Region EAC Area.

The attainment demonstration was supported by results of the photochemical modeling analysis and technical documentation for all ozone monitors in the Eastern Panhandle Region EAC Area. EPA believes that the WVDEP's EAC 8-hour ozone photochemical modeling study developed for the Eastern Panhandle Region EAC Area meets EPA's current modeling requirements. West Virginia has adequately followed all relevant EPA guidance in demonstrating that the Eastern Panhandle Region EAC Area will attain the 8-hour ozone NAAQS in 2007, and continue to do so in 2012. The modeling results predict the maximum 2007 8-hour ozone design value for this Area to be 81.8 ppb, which is less than what is needed (≤84 ppb) to show modeled attainment of the 8-hour ozone NAAQS.

The attainment modeling information presented in this notice should be used in conjunction with the States's SIP submittal and EPA's technical support document (TSD), as certain modeling requirements performed by the State (i.e., details of the quality assurance performed, detailed analysis of data suitability, complete listings of all data inputs and outputs, etc.) are not reproduced in this notice.

B. Measures Included in the EAC SIP

The Eastern Panhandle Region EAP is designed to enable a proactive approach to ensuring attainment of the 8-hour NAAQS. Using the EAP approach, the Eastern Panhandle Region EAC Area will be implementing emission-reduction measures directed at attaining the 8-hour standard starting in 2005. The Area is then required to demonstrate compliance with the 8-hour ozone standard by 2007, and maintenance of that standard through 2012. Compliance with the standard will be determined using ozone monitoring data.

The EAP control measures for the Eastern Panhandle Region EAC Area Start Printed Page 28266consist of local and Federal emission reduction strategies. Control measures to be implemented on the local level include a suite of non-regulatory measures which include: Ozone action days geared toward both the general public and employers; public awareness program that focuses on increasing the public's understanding of air quality issues; bicycle and pedestrian measures designed to promote bicycling and walking; reduced engine idling for trucks and school buses; voluntary ground freight partnership program using incentives to reduce emissions; increased public awareness of compliance with open burning restrictions; and, school bus engine retrofits to lower emissions. Though not included in the modeled demonstration of attainment, emission reductions from the implementation of these measures will provide additional air quality benefits to the Eastern Panhandle Region EAC Area.

In addition to local strategies, the attainment demonstration for the Eastern Panhandle Region EAP includes emission reductions from several Federal programs, including but not limited to the following: NOX SIP Call; exhaust emission standards for light-duty vehicles (passenger cars) and light-duty trucks; Tier 2 vehicle and gasoline sulfur program; heavy duty diesel engine and fuel sulfur program; and, non-road diesel engine standards (Tier I and Tier II.)

The NOX SIP Call (63 FR 58356, October 27, 1998) required states to implement reductions necessary to address the ozone transport problem, and on May 10, 2002, West Virginia submitted its NOX Budget Trading Program to meet its Phase I NOX SIP Call obligations. West Virginia's Phase I program applies to electric generating units that serve a generator greater than 25 megawatts and to industrial units greater than 250 mmBTU/hr. EPA approved West Virginia's NOX Budget Program on May 10, 2002 (67 FR 31733). The photochemical modeling that demonstrates attainment for the Eastern Panhandle Region EAC Area relies upon expected benefits from the NOX Budget Trading Program throughout the modeling domain.

All these measures have been developed to address the creation of ozone producing emissions in the local areas as well as to lessen the transport of ozone into the area as a comprehensive approach to reducing ozone levels. A detailed description of all the control measures, including those that were in the attainment demonstration as well as those additional measures that are expected to assist the area in meeting attainment of the standard in 2007, can be found in the TSD prepared in support of this rulemaking.

C. Maintenance for Growth

Consistent with EPA guidance, the EAP also contains components to ensure maintenance of the 8-hour ozone standard through 2012, five years beyond the 2007 attainment date. The Eastern Panhandle Region EAC Area has developed an emissions inventory for the year 2012, as well as a continuing planning process to address this essential part of the plan. Due to the emission control measures identified in the EAP, the emissions inventory predicted an overall reduction in emissions through 2012. From 1999 to 2007, nominal increases in VOCs emissions are expected. By 2012, VOC emissions will be consistent with 1999 emission levels. For NOX, emissions are expected to decline from 1999 to 2007 by 7.9 percent. By 2012, emissions are predicted to be 3.2 percent less than those modeled in 2007 for NOX. Using air quality models to anticipate the impact of growth, as well as the Federal, state-assisted, and locally-implemented measures to reduce emissions, West Virginia has projected the Area will be in attainment of the 8-hour ozone standard in 2007 and will remain in attainment through 2012.

To fulfill the continuing planning process that will ensure that the Eastern Panhandle Region EAC Area will maintain the 8-hour ozone standard through 2012, the Eastern Panhandle Region EAP establishes a commitment and mechanism to work with local stakeholders to identify and require additional measures to further reduce ozone precursor emissions. In addition, the EAC signatories and implementing agencies will review all EAC activities and report on these results in semi-annual reports beginning in June 2006. The semi-annual reports will track and document, at a minimum, control strategy implementation and results, monitoring data, and future plans. Furthermore, as part of the SIP submittal, the Eastern Panhandle Region EAC Area commits to submit periodic updates to WVDEP and EPA on the implementation status and results of the local control program with sufficient details to make program sufficiency determinations. Although not required by EPA, the Eastern Panhandle Region EAP contains contingency measures which could be implemented in response to any unexpected shortfall in anticipated reductions. These additional strategies include: Implementation of WVDEP reasonably available control technology (RACT) to control VOCs; alternative fuels program; truck-stop electrification to discourage engine idling; and, the sale of lower Reid Vapor Pressure (RVP) gasoline in the area.

III. Proposed Action

EPA is proposing to approve the attainment demonstration and the EAP for the West Virginia Eastern Panhandle Region 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. To date, the Eastern Panhandle Region EAC Area has met all of its EAC milestones and, as long as the Area continues to meet the agreed upon milestones, the nonattainment designation for this Area will be deferred until September 30, 2005. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposes to approve 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 proposed rule also does 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 Start Printed Page 28267specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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), because it merely proposes to approve 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 proposed rule also is not subject to Executive Order 13045 (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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This proposed rule pertaining to the attainment demonstration and EAP for the Eastern Panhandle Region Ozone EAC Area, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Nitrogen dioxide
  • Ozone
  • Reporting and recordkeeping requirements
  • Volatile organic compounds
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Authority: 42 U.S.C. 7401 et seq.

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Dated: May 3, 2005.

Donald S. Welsh,

Regional Administrator, Region III.

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1.  To attain the 8-hour national ambient air quality standard (NAAQS) for ozone requires the fourth highest 8-hour daily maximum ozone concentration, average over three consecutive years, to be ≤ 80 parts per billion (ppb) at each monitoring site (See 40 CFR Part 50.10, Appendix I, paragraph 2.3). Because of the stipulations for rounding significant figures, this equates to a modeled attainment target of ≤ 84 ppb. Because non-significant figures are truncated, a modeling estimate of < 85 ppb is equivalent to ≤ 84 ppb.

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[FR Doc. 05-9785 Filed 5-16-05; 8:45 am]