[Federal Register: April 13, 2007 (Volume 72, Number 71)]
[Proposed Rules]
[Page 18602-18614]
[DOCID:fr13ap07-21]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0919; FRL-8298-2]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Redesignation of the Hampton Roads 8-Hour Ozone Nonattainment
Area to Attainment and Approval of the Associated Maintenance Plan and
2002 Base-Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve a redesignation request and State
Implementation Plan (SIP) revisions submitted by the Commonwealth of
Virginia. The Virginia Department of Environmental Quality (VADEQ) is
requesting that the Hampton Roads ozone nonattainment area (``Hampton
Roads Area'' or ``Area'') be redesignated as attainment for the 8-hour
ozone national ambient air quality standard (NAAQS). The Area is
comprised of the Cities of Chesapeake, Hampton, Newport News, Norfolk,
Poquoson, Portsmouth, Suffolk, Virginia Beach, and Williamsburg, and
the Counties of Gloucester, Isle of Wight, James City, and York,
Virginia. EPA is proposing to approve the ozone redesignation request
for the Hampton Roads Area. In conjunction with its redesignation
request, the Commonwealth submitted a SIP revision consisting of a
maintenance plan for the Hampton Roads Area that provides for continued
attainment of the 8-hour ozone NAAQS for at least 10 years after
redesignation. EPA is proposing to make a determination that the
Hampton Roads Area has attained the 8-hour ozone NAAQS, based upon
three years of complete, quality-assured ambient air quality monitoring
data for 2003-2005. EPA's proposed approval of the 8-hour ozone
redesignation request is based on its determination that the Hampton
Roads Area has met the criteria for redesignation to attainment
specified in the Clean Air Act (CAA). In addition, the Commonwealth of
Virginia has also submitted a 2002 base-year inventory for the Hampton
Roads Area, and EPA is proposing to approve that inventory for the
Hampton Roads Area as a SIP revision. EPA is also providing information
on the status of its adequacy determination for the motor vehicle
emission budgets (MVEBs) that are identified in the maintenance plan
for the Hampton Roads Area for purposes of transportation conformity,
and is also proposing to approve those

MVEBs. EPA is proposing approval of the redesignation request and of
the maintenance plan and 2002 base-year inventory SIP revisions in
accordance with the requirements of the CAA.

DATES: Written comments must be received on or before May 14, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0919 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for

submitting comments.
    B. E-mail<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2006-0919, Makeba Morris, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0919. 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.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.

The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov,

your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or

in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Amy Caprio,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What Are the Actions EPA Is Proposing to Take?
II. What Is the Background for These Proposed Actions?
III. What Are the Criteria for Redesignation to Attainment?
IV. Why Is EPA Taking These Actions?
V. What Would Be the Effect of These Actions?
VI. What Is EPA's Analysis of the Commonwealth's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the Maintenance Plan for the Hampton Roads Area
Adequate and Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews

I. What Are the Actions EPA Is Proposing to Take?

    On October 16, 2006 the VADEQ formally submitted a request to
redesignate the Hampton Roads Area from nonattainment to attainment of
the 8-hour NAAQS for ozone. On October 18, 2006 Virginia submitted a
maintenance plan for the Hampton Roads Area as a SIP revision to ensure
continued attainment in the Area over the next 11 years. VADEQ also
submitted a 2002 base-year inventory for the Hampton Roads Area as a
SIP revision on October 12, 2006 and supplements to the base-year
inventory were submitted on November 20, 2006 and February 13, 2007.
The Hampton Roads Area is comprised of the Cities of Chesapeake,
Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia
Beach, and Williamsburg, and the Counties of Gloucester, Isle of Wight,
James City, and York, Virginia. It is currently designated a marginal
8-hour ozone nonattainment area. EPA is proposing to determine that the
Hampton Roads Area has attained the 8-hour ozone NAAQS and that it has
met the requirements for redesignation pursuant to section 107(d)(3)(E)
of the CAA. EPA is, therefore, proposing to approve the redesignation
request to change the designation of the Hampton Roads Area from
nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also
proposing to approve the Hampton Roads maintenance plan as a SIP
revision for the Area (such approval being one of the CAA criteria for
redesignation to attainment status). The maintenance plan is designed
to ensure continued attainment in the Hampton Roads Area for the next
11 years. Concurrently, the Commonwealth is requesting that this 8-hour
maintenance plan supersede the previous 1-hour maintenance plan. EPA is
also proposing to approve the 2002 base-year inventory for the Hampton
Roads Area as a SIP revision. Additionally, EPA is announcing its
action on the adequacy process for the MVEBs identified in the Hampton
Roads maintenance plan, and proposing to approve the MVEBs identified
for volatile organic compounds (VOCs) and nitrogen oxides
(NOX) for the Hampton Roads Area for transportation
conformity purposes.

II. What Is the Background for These Proposed Actions?

A. General

    Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NOX and VOC
are referred to as precursors of ozone. The CAA establishes a process
for air quality management through the attainment and maintenance of
the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour standard. EPA designated, as nonattainment,
any area violating the 8-hour ozone NAAQS based on the air quality data
for the three years of 2001-2003. These were the most recent three
years of data at the time EPA designated 8-hour areas. The Hampton
Roads Area was designated a marginal 8-hour ozone nonattainment area in
a Federal Register notice signed on April 15, 2004 and published on
April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour
health-based standard for ozone during the

years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR
23951, 23996) to revoke the 1-hour ozone NAAQS in the Hampton Roads
Area (as well as most other areas of the country) effective June 15,
2005. See 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); and see 70
FR 44470 (August 3, 2005).
    However, on December 22, 2006, the U.S. Court of Appeals for the
District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule
for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir.
2006) (hereafter ``South Coast.''). The Court held that certain
provisions of EPA's Phase I Rule were inconsistent with the
requirements of the Clean Air Act. The Court rejected EPA's reasons for
implementing the 8-hour standard in nonattainment areas under Subpart 1
in lieu of subpart 2 of Title I, part D of the Act. The Court also held
that EPA improperly failed to retain four measures required for 1-hour
nonattainment areas under the anti-backsliding provisions of the
regulations: (1) Nonattainment area New Source Review (NSR)
requirements based on an area's 1-hour nonattainment classification;
(2) Section 185 penalty fees for 1-hour severe or extreme nonattainment
areas; (3) measures to be implemented pursuant to section 172(c)(9) or
182(c)(9) of the Act, on the contingency of an area not making
reasonable further progress toward attainment of the 1-hour NAAQS, or
for failure to attain that NAAQS; and (4) the certain conformity
requirements for certain types of federal. The Court upheld EPA's
authority to revoke the 1-hour standard provided there were adequate
anti-backsliding provisions. Elsewhere in this document, mainly in
section VI. B. ``The Hampton Roads Area Has Met All Applicable
Requirements under Section 110 and Part D of the CAA and Has a Fully
Approved SIP Under Section 110(k) of the CAA,'' EPA discusses its
rationale why the decision in South Coast is not an impediment to
redesignating the Hampton Roads Area to attainment of the 8-hour ozone
NAAQS.
    The CAA, title I, part D, contains two sets of provisions--subpart
1 and subpart 2--that address planning and control requirements for
nonattainment areas. Subpart 1 (which EPA refers to as ``basic''
nonattainment) contains general, less prescriptive requirements for
nonattainment areas for any pollutant--including ozone--governed by a
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment)
provides more specific requirements for ozone nonattainment areas. In
2004, the Hampton Roads Area was classified a marginal 8-hour ozone
nonattainment area based on air quality monitoring data from 2001-2003.
Therefore, the Hampton Roads Area is subject to the requirements of
subpart 2 of part D.
    Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentrations is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857 (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50. The ozone
monitoring data indicates that the Hampton Roads Area has a design
value of 0.078 ppm for the 3-year period of 2003-2005, using complete,
quality-assured data. Therefore, the ambient ozone data for the Hampton
Roads Area indicates no violations of the 8-hour ozone standard.

B. The Hampton Roads Area

    Under the 1-hour ozone NAAQS, the Hampton Roads Area consists of
the Cities of Chesapeake, Hampton, Newport News, Norfolk, Poquoson,
Portsmouth, Suffolk, Virginia Beach, and Williamsburg, and the Counties
of James City, and York, Virginia. Under the 8-hour ozone NAAQS, the
Hampton Roads Area was expanded to also include Gloucester County and
Isle of Wight County. Prior to the Area's designation as an 8-hour
ozone nonattainment area, the Hampton Roads Area was a maintenance area
for the 1-hour ozone NAAQS.\1\ See June 26, 1997 (62 FR 34408).
---------------------------------------------------------------------------

    \1\ Under the 1-hour ozone NAAQS the Hampton Roads Area
consisted of the Cities of Chesapeake, Hampton, Newport News,
Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach, and
Williamsburg, and the Counties of James City and York. See November
6, 1991 (58 FR 56694).
---------------------------------------------------------------------------

    On October 16, 2006 the VADEQ requested that the Hampton Roads Area
be redesignated to attainment for the 8-hour ozone standard. The
redesignation request included three years of complete, quality-assured
data for the period of 2003-2005, indicating that the 8-hour NAAQS for
ozone had been achieved in the Hampton Roads Area. The data satisfies
the CAA requirements that the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentration (commonly
referred to as the area's design value), must be less than or equal to
0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the CAA,
a nonattainment area may be redesignated if sufficient complete,
quality-assured data is available to determine that the area has
attained the standard and the area meets the other CAA redesignation
requirements set forth in section 107(d)(3)(E).

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA,
allows for redesignation, providing that:
    (1) EPA determines that the area has attained the applicable NAAQS;
    (2) EPA has fully approved the applicable implementation plan for
the area under section 110(k);
    (3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air
pollutant control regulations and other permanent and enforceable
reductions;
    (4) EPA has fully approved a maintenance plan for the area as
meeting the requirements of section 175A; and
    (5) The State containing such area has met all requirements
applicable to the area under section 110 and part D.
    EPA provided guidance on redesignations in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
     ``Ozone and Carbon Monoxide Design Value Calculations,''
Memorandum from Bill Laxton, June, 18, 1990;
     ``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
     ``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality

Management Division, September 4, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSDs) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17,
1993;
     ``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on
or after November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
     Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
     ``Part D New Source Review (part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
     ``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May 10,
1995.

IV. Why Is EPA Taking These Actions?

    On October 16, 2006, the VADEQ requested redesignation of the
Hampton Roads Area to attainment for the 8-hour ozone standard. On
October 18, 2006, VADEQ submitted a maintenance plan for the Hampton
Roads Area as a SIP revision, to ensure continued attainment of the 8-
hour ozone NAAQS over the next 11 years, until 2018. Concurrently,
Virginia is requesting that 8-hour maintenance plan submittal supersede
the 1-hour maintenance plan requirements already in place and that the
8-hour maintenance plan meet the requirement of CAA section 175A(b)
with respect to the 1-hour ozone maintenance plan update. EPA is
proposing to approve the maintenance plan to fulfill the requirement of
section 175A(b) for submission of a maintenance plan update eight years
after the area was redesignated to attainment of the 1-hour ozone
NAAQS. EPA believes that such an update must ensure that the
maintenance plan in the SIP provides maintenance of the NAAQS for a
period of 20 years after the area is initially redesignated to
attainment. EPA can propose approval because the maintenance plan,
which demonstrates maintenance of the 8-hour ozone NAAQS through 2018,
also demonstrates maintenance of the 1-hour ozone NAAQS through 2018.
    VADEQ also submitted a 2002 base-year inventory with its
maintenance plan as a SIP revision on October 12, 2006 and supplemental
to that submittal on November 20, 2006 and February 13, 2007, which is
an applicable requirement for the Hampton Roads Area for purposes of
redesignation. EPA has determined that the Hampton Roads Area has
attained the 8-hour ozone standard and has met the requirements for
redesignation set forth in section 107(d)(3)(E).

V. What Would Be the Effect of These Actions?

    Approval of the redesignation request would change the official
designation of the Hampton Roads Area from nonattainment to attainment
for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also
incorporate into the Virginia SIP a 2002 base-year inventory and a
maintenance plan ensuring continued attainment of the 8-hour ozone
NAAQS in the Hampton Roads Area for the next 11 years, until 2018. The
maintenance plan includes contingency measures to remedy any future
violations of the 8-hour NAAQS (should they occur), and identifies the
NOX and VOC MVEBs for transportation conformity purposes for
the years 2011 and 2018. These MVEBs are displayed in the following
table:

     Table 1.--Motor Vehicle Emissions Budgets in Tons per Day (tpd)
------------------------------------------------------------------------
                     Year                           VOC          NOX
------------------------------------------------------------------------
2011..........................................       37.846       50.387
2018..........................................       27.574       31.890
------------------------------------------------------------------------

VI. What Is EPA's Analysis of the Commonwealth's Request?

    EPA is proposing to determine that the Hampton Roads Area has
attained the 8-hour ozone standard and that all other redesignation
criteria have been met. The following is a description of how the
VADEQ's October 16, 2006 (redesignation request), October 18, 2006
(maintenance plan and MVEBs), October 12, 2006 (base-year emissions
inventory), November 20, 2006 (supplement to base-year inventory), and
February 13, 2007 (second supplement to base-year inventory) submittals
satisfy the requirements of section 107(d)(3)(E) of the CAA.

A. The Hampton Roads Area Has Attained the 8-Hour Ozone NAAQS

    EPA is proposing to determine that the Hampton Roads Area has
attained the 8-hour ozone NAAQS. For ozone, an area may be considered
to be attaining the 8-hour ozone NAAQS if there are no violations, as
determined in accordance with 40 CFR 50.10 and Appendix I of Part 50,
based on three complete, consecutive calendar years of quality-assured
air quality monitoring data. To attain this standard, the 3-year
average of the fourth-highest daily maximum 8-hour average ozone
concentrations measured at each monitor, within the area, over each
year must not exceed the ozone standard of 0.08 ppm. Based on the
rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the Air Quality System (AQS). The monitors
generally should have remained at the same location for the duration of
the monitoring period required for demonstrating attainment.
    There are three ozone monitors in the Hampton Roads Area. As part
of its redesignation request, Virginia referenced ozone monitoring data
for the years 2003-2005 for the Hampton Roads Area. This data has been
quality assured and is recorded in the AQS. The fourth-high 8-hour
daily maximum concentrations, along with the three-year averages are
summarized in Table 2. The Hampton and Suffolk--TCC monitoring sites
had the highest 3-year average of the fourth highest daily maximum 8-
hour average and are therefore used to make air quality determinations.

  Table 2.--Hampton Roads Area Fourth Highest 8-Hour Average Values, Hampton Roads Monitors, Parts per Million
                                                      (ppm)
----------------------------------------------------------------------------------------------------------------
                                                                                3-year
             Monitor                AQS ID No.         2003            2004            2005           average
----------------------------------------------------------------------------------------------------------------
Hampton.........................       516500004           0.083           0.074           0.078           0.078
Suffolk--TCC....................       518000004           0.083           0.074           0.077           0.078
Suffolk--Holland................       518000005           0.079           0.075           0.078          0.077
----------------------------------------------------------------------------------------------------------------
The average for the 3-year period 2003-2005 is 0.078 ppm.

    The air quality data for 2003-2005 show that the Hampton Roads Area
has attained the standard with a design value of 0.078 ppm. The data
collected at the Hampton Roads Area monitors satisfy the CAA
requirement that the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration is less than or equal to
0.08 ppm. The VADEQ's request for redesignation for the Hampton Roads
Area indicates that the data is complete and was quality assured in
accordance with 40 CFR part 58. The VADEQ uses the AQS as the permanent
database to maintain its data and quality assures the data transfers
and content for accuracy. In addition, as discussed below with respect
to the maintenance plan, VADEQ has committed to continue monitoring in
accordance with 40 CFR part 58. In summary, EPA has determined that the
data submitted by Virginia indicates that the Hampton Roads Area has
attained the 8-hour ozone NAAQS.

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

    EPA has determined that the Hampton Roads Area has met all SIP
requirements applicable for purposes of this redesignation under
section 110 of the CAA (General SIP Requirements) and that it meets all
applicable SIP requirements under part D of Title I of the CAA, in
accordance with section 107(d)(3)(E)(v). In addition, EPA has
determined that the SIP is fully approved with respect to all
requirements applicable for purposes of redesignation in accordance
with section 107(d)(3)(E)(ii). In making these proposed determinations,
EPA ascertained which requirements are applicable to the Hampton Roads
Area and determined that the applicable portions of the SIP meeting
these requirements are fully approved under section 110(k) of the CAA.
We note that SIPs must be fully approved only with respect to
applicable requirements. The September 4, 1992 Calcagni memorandum
(``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992) describes EPA's interpretation
of section 107(d)(3)(E) with respect to the timing of applicable
requirements. Under this interpretation, to qualify for redesignation,
States requesting redesignation to attainment must meet only the
relevant CAA requirements that came due prior to the submittal of a
complete redesignation request. See also Michael Shapiro memorandum,
September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995)
(redesignation of Detroit-Ann Arbor). Applicable requirements of the
CAA that come due subsequent to the area's submittal of a complete
redesignation request remain applicable until a redesignation is
approved, but are not required as a prerequisite to redesignation.
Section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004). See also 68 FR at 25424, 25427 (May 12, 2003) (redesignation of
St. Louis).
    This section also sets forth EPA's views on the potential effect of
the Court's ruling in South Coast on this redesignation action. For the
reasons set forth below, EPA does not believe that the Court's ruling
alters any requirements relevant to this redesignation action so as to
preclude redesignation, and does not prevent EPA from finalizing this
redesignation. EPA believes that the Court's decision, as it currently
stands or as it may be modified based upon any petition for rehearing
that has been filed, imposes no impediment to moving forward with
redesignation of this area to attainment, because in either
circumstance redesignation is appropriate under the relevant
redesignation provisions of the Act and longstanding policies regarding
redesignation requests.
1. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations.
The general SIP elements and requirements set forth in section
110(a)(2) include, but are not limited to the following:
     Submittal of a SIP that has been adopted by the State
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for
the implementation of part C requirements (Prevention of Significant
Deterioration (PSD));
     Provisions for the implementation of part D requirements
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     Provisions for public and local agency participation in
planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a state from significantly contributing to air
quality problems in another State. To implement this provision, EPA has
required certain states to establish programs to address transport of
air pollutants in accordance with the NOX SIP Call, October
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the
section 110(a)(2)(D) requirements for a State are not linked with a
particular nonattainment area's designation and classification in that
State. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the State.
    Thus, we do not believe that these requirements are applicable
requirements for purposes of

redesignation. EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. The Hampton Roads Area will still be subject to these
requirements after it is redesignated. The section 110 and part D
requirements, which are linked with a particular area's designation and
classification, are the relevant measures to evaluate in reviewing a
redesignation request. This policy is consistent with EPA's existing
policy on applicability of conformity (i.e., for redesignations) and
oxygenated fuels requirement. See Reading, Pennsylvania, proposed and
final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7,
1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May
7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December
7, 1995). See also the discussion on this issue in the Cincinnati
redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh
redesignation (66 FR at 53099, October 19, 2001). Similarly, with
respect to the NOX SIP Call rules, EPA noted in its Phase 1
Final Rule to Implement the 8-hour Ozone NAAQS, that the NOX
SIP Call rules are not ``an'' `applicable requirement' for purposes of
section 110(1) because the NOX rules apply regardless of an
area's attainment or nonattainment status for the 8-hour (or the 1-
hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
    EPA believes that section 110 elements not linked to the Area's
nonattainment status are not applicable for purposes of redesignation.
As explained later in this notice, two part D requirements applicable
for purposes of redesignation under the 8-hour standard became due
prior to the submission of the redesignation request.
    Because the Virginia SIP satisfies all of the applicable general
SIP elements and requirements set forth in section 110(a)(2), EPA
concludes that Virginia has satisfied the criterion of section
107(d)(3)(E) regarding section 110 of the Act.
2. Part D Nonattainment Requirements Under the 8-Hour Standard
    The Hampton Roads Area was classified a Subpart 2, marginal
nonattainment area for the 8-hour ozone standard. Sections 172-176 of
the CAA, found in subpart 1 of part D, set forth the basic
nonattainment requirements applicable to all nonattainment areas.
Section 182 of the CAA, found in subpart 2 of part D, establishes
additional specific requirements depending on the area's nonattainment
classification.
    The Hampton Roads Area is classified as a Subpart 2, marginal
nonattainment area. We do not believe that any part of the Court's
opinion would require that this subpart 2 classification be changed
upon remand to EPA. However, even assuming for present purposes that
the Hampton Roads Area would become subject to a different
classification under a classification scheme created in a future rule
in response to the court's decision, that would not prevent EPA from
finalizing a redesignation for this area. For the reasons set forth
below, we believe that any additional requirements that might apply
based on that different classification would not be applicable for
purposes of evaluating the redesignation request.
    This belief is based upon (1) EPA's longstanding policy of
evaluating redesignation requests in accordance with only the
requirements due at the time the request was submitted; and (2)
consideration of the inequity of applying retroactively any
requirements that might be applied in the future.
    First, at the time the redesignation request was submitted, the
area was classified under Subpart 2 and was required to meet the
Subpart 2 requirements. Under EPA's longstanding interpretation of
section 107(d)(3)(E) of the Clean Air Act, to qualify for
redesignation, states requesting redesignation to attainment must meet
only the relevant SIP requirements that came due prior to the submittal
of a complete redesignation request. September 4, 1992 Calcagni
memorandum (``Procedures for Processing Requests to Redesignate Areas
to Attainment'', Memorandum from John Calcagni, Director, Air Quality
Management Division) See also Michael Shapiro Memorandum, September 17,
1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004),
which upheld this interpretation. See, e.g, also 68 FR 25418, 25424,
25427 (May 12, 2003) (redesignation of St. Louis). At the time the
redesignation request was submitted, the Hampton Roads Area was
classified as a marginal area under Subpart 2 and thus only Subpart 2
marginal area requirements are applicable for purposes of
redesignation.
    Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted, but which might later become applicable. The D.C. Circuit
has recognized the inequity in such retroactive rulemaking. See Sierra
Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002), in which the D.C.
Circuit upheld a District Court's ruling refusing to make retroactive
an EPA determination of nonattainment that was past the statutory due
date. Such a determination would have resulted in the imposition of
additional requirements on the area. The Court stated: ``Although EPA
failed to make the nonattainment determination within the statutory
time frame, Sierra Club's proposed solution only makes the situation
worse. Retroactive relief would likely impose large costs on the
States, which would face fines and suits for not implementing air
pollution prevention plans in 1997, even though they were not on notice
at the time.'' Id. at 68. Similarly, here it would be unfair to
penalize the area by applying to it for purposes of redesignation any
additional requirements that were not in effect at the time it
submitted its redesignation request, but that might apply in the
future.
    Two Subpart 2 requirements became due for the Hampton Roads Area
under section 182(a) of the CAA prior to redesignation--a 2002 base-
year inventory, and the emissions statement requirement pursuant to
section 182(a)(3)(B). Virginia has in its approved SIP an approved
emissions statement rule for the 1-hour standard covering those
portions of the 8-hour nonattainment area that were part of the
previous 1-hour attainment area, which satisfies the emissions
statement requirement for the 8-hour standard. See 65 FR 21315 (April
21, 2000). Virginia recently submitted a rulemaking to expand the VOC
and NOX Hampton Roads Emissions Control Area to include
Gloucester County and Isle of Wight County. EPA approved this
rulemaking on March 2, 2007 (72 FR 9441) and will become effective on
April 2, 2007. Today, EPA is proposing to approve the 2002 base-year
inventory for the Hampton Roads Area, which was submitted on October
12, 2006, and supplemented on November 20, 2006 and February 13, 2007,
concurrently with its maintenance plan, into the Virginia SIP. A
detailed evaluation of Virginia's 2002 base-year inventory for the
Hampton Roads Area can be found in a Technical Support Document (TSD)
prepared by EPA for this rulemaking. EPA has determined that the
emission inventory and emissions statement requirements for the Hampton
Roads Area have been satisfied.
    EPA believes it is reasonable to interpret the general conformity
and NSR requirements of part D as not requiring approval prior to

redesignation. With respect to section 176, Conformity Requirements,
section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that Federally-supported or funded projects
conform to the air quality planning goals in the applicable SIP. The
requirement to determine conformity applies to transportation plans,
programs, and projects developed, funded or approved under Title 23
U.S.C. and the Federal Transit Act (``transportation conformity'') as
well as to all other Federally supported or funded projects (``general
conformity''). State conformity revisions must be consistent with
Federal conformity regulations relating to consultation, enforcement
and enforceability that the CAA required the EPA to promulgate.
    EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) since state conformity rules
are still required after redesignation and federal conformity rules
apply where state rules have not been approved. See Wall v. EPA, 265 F.
3d 426, 438 (6th Cir. 2001), upholding this interpretation. See also 60
FR 62748 (December 7, 1995).
    EPA has also determined that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without part D NSR in effect, because PSD requirements will
apply after redesignation. The rationale for this position is described
in a memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled, ``Part D NSR Requirements
or Areas Requesting Redesignation to Attainment.'' Virginia has
demonstrated that the Area will be able to maintain the standard
without Part D NSR in effect in the Hampton Roads Area, and therefore,
Virginia need not have a fully approved Part D NSR program prior to
approval of the redesignation request. Virginia's SIP-approved PSD
program will become effective in Hampton Roads upon redesignation to
attainment. See rulemakings for Detroit, Michigan (60 FR at 12467-68);
Cleveland-Akron-Lorrain, Ohio (61 FR at 20458, 20469-70); Louisville,
Kentucky (66 FR 53665, 53669 October 23, 2001); Grand Rapids, Michigan
(61 FR at 31831, 31834-37, June 21, 1996).
3. Requirements Under the 1-Hour Standard
    With respect to the 1-hour standard requirements, the Gloucester
County and Isle of Wight County portions of the Hampton Roads Area were
designated Unclassifiable/Attainment under the 1-hour standard and were
never designated nonattainment for the 1-hour standard. Therefore,
there are no outstanding 1-hour nonattainment area requirements these
portions of the Hampton Roads Area would be required to meet. Thus, we
find that the Court's ruling does not result in any additional 1-hour
requirements for purposes of redesignation.
    The portion of the Hampton Roads Area consisting of the Cities of
Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth,
Suffolk, Virginia Beach, and Williamsburg, and the Counties of James
City, and York, Virginia was an Attainment area subject to a Clean Air
Act section 175A maintenance plan under the 1-hour standard. The
Court's ruling does not impact redesignation requests for these types
of areas.
    First, there are no conformity requirements that are relevant for
redesignation requests for any standard, including the requirement to
submit a transportation conformity SIP.\2\ Under longstanding EPA
policy, EPA believes that it is reasonable to interpret the conformity
SIP requirement as not applying for purposes of evaluating a
redesignation request under section 107(d) because state conformity
rules are still required after redesignation and federal conformity
rules apply where state rules have not been approved. 40 CFR 51.390.
See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this
interpretation. See also 60 FR 62748 (Dec. 7, 1995) (Tampa, FL
redesignation).
---------------------------------------------------------------------------

    \2\ Clean Air Act section 176(c)(4)(E) currently requires States
to submit revisions to their SIPs to reflect certain federal
criteria and procedures for determining transportation conformity.
Transportation conformity SIPs are different from the motor vehicle
emissions budgets that are established in control strategy SIPs and
maintenance plans.
---------------------------------------------------------------------------

    Second, with respect to the three other anti-backsliding provisions
for the 1-hour standard that the Court found were not properly
retained, this portion of the Hampton Roads Area is an attainment area
subject to a maintenance plan for the 1-hour standard, and the NSR,
contingency measure (pursuant to section 172(c)(9) or 182(c)(9)) and
fee provision requirements no longer apply to an area that has been
redesignated to attainment of the 1-hour standard.
    Thus the decision in South Coast should not alter requirements that
would preclude EPA from finalizing the redesignation of this area.
4. Hampton Roads Has a Fully Approved SIP for Purposes of Redesignation
    EPA has fully approved the Virginia SIP for the purposes of this
redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action. See 68 FR at
25425 (May 12, 2003) and citations therein. The Hampton Roads Area was
a 1-hour ozone maintenance area at the time of its designation as a
marginal 8-hour ozone nonattainment area on April 30, 2004. As stated
previously, two subpart 2 part D requirements became due for the
Hampton Roads Area prior to redesignation--a 2002 base-year inventory,
and the emissions statement requirement. VADEQ has submitted
concurrently with its maintenance plan, a 2002 base-year inventory as a
SIP revision. In this action, EPA is proposing approval of this
inventory. The emissions statement requirement for the entire Hampton
Roads Area was recently fulfilled on March 2, 2007 (72 FR 9441).
Because there are no outstanding SIP submission requirements applicable
for the purposes of the redesignation of the Hampton Roads Area, the
applicable implementation plan satisfies all pertinent SIP
requirements.

C. The Air Quality Improvement in the Hampton Roads Area is Due to
Permanent and Enforceable Reductions in Emissions Resulting From
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Reductions

    EPA believes that the Commonwealth has demonstrated that the
observed air quality improvement in the Hampton Roads Area is due to
permanent and enforceable reductions in emissions resulting from
implementation of the SIP, Federal measures, and other State-adopted
measures. Emissions reductions attributable to these rules are shown in
Table 3.

                  Table 3.--Total VOC and NOX Emissions for 2002 and 2005 in Tons per Day (tpd)
----------------------------------------------------------------------------------------------------------------
              Year                     Point          Area *          Nonroad         Mobile           Total
----------------------------------------------------------------------------------------------------------------
                                        Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
2002............................          18.758          87.402          46.543          67.293         219.996
2005............................          20.091          91.980          42.320          50.591         204.982
Diff (02-05)....................          +1.333          +4.578          -4.223         -16.702         -15.014
----------------------------------------------------------------------------------------------------------------
                                              Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
2002............................          91.403          57.961          31.002          93.844         274.210
2005............................          62.536          55.207          30.208          78.169         226.120
Diff (02-05)....................         -28.867          -2.754          -0.794         -15.675        -48.090
----------------------------------------------------------------------------------------------------------------
* Area source category includes emissions from motor vehicle refueling.

    Between 2002 and 2005, VOC emissions decreased by 15.014 tpd and
NOX emissions decreased by 48.090 tpd because of permanent
and enforceable measures implemented by the Commonwealth and the
federal government. These reductions, and anticipated future
reductions, are due to the following permanent and enforceable
measures.
Programs Currently in Effect
    (a) Tier 1;
    (b) Tier 2;
    (c) National Low Emission Vehicle (NLEV) Program; and
    (d) NOX SIP Call.
    EPA believes that permanent and enforceable emissions reductions
are the cause of the long-term improvement in ozone levels and are the
cause of the Area achieving attainment of the 8-hour ozone standard.

D. The Hampton Roads Area Has a Fully Approvable Maintenance Plan
Pursuant to Section 175A of the CAA

    In conjunction with its request to redesignate the Hampton Roads
Area to attainment status, Virginia submitted a SIP revision to provide
for maintenance of the 8-hour ozone NAAQS in the Area for at least 11
years after redesignation. The Commonwealth is requesting that EPA
approve this SIP revision as meeting the requirement of CAA 175A and
175A(b). Section 175A(a) was met with the October 18, 2006 submission
of the maintenance plan, because it states that Hampton Roads will
maintain the 8-hour ozone NAAQS for at least 10 years after
redesignation. Section 175A(b) was met with the October 18, 2006
submission of the maintenance plan, because it will replace the 1-hour
maintenance plan update requirement that was due 8 years after
redesingation of Hampton Roads to attainment. Once approved, the
maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP
for Hampton Roads meets the requirements of the CAA regarding
maintenance of the applicable 8-hour ozone standard.
What Is Required in a Maintenance Plan?
    Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A(a), the plan must demonstrate continued attainment
of the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Section 175A(b) states that
eight years after redesignation from nonattainment to attainment, the
State must submit a revised maintenance plan demonstrating that
attainment will continue to be maintained for the next 10-year period
following the initial 10-year period. To address the possibility of
future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation, as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni memorandum dated September 4, 1992, provides
additional guidance on the content of a maintenance plan. An ozone
maintenance plan should address the following provisions:
    (a) An attainment emissions inventory;
    (b) A maintenance demonstration;
    (c) A monitoring network;
    (d) Verification of continued attainment; and
    (e) A contingency plan.
Analysis of the Hampton Roads Area Maintenance Plan
    (a) Attainment inventory--An attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. VADEQ determined that the appropriate attainment
inventory year is 2005. That year establishes a reasonable year within
the three-year block of 2003-2005 as a baseline and accounts for
reductions attributable to implementation of the CAA requirements to
date. The 2005 inventory is consistent with EPA guidance and is based
on actual ``typical summer day'' emissions of VOC and NOX
during 2005 and consists of a list of sources and their associated
emissions.
    To develop the NOX and VOC base year emissions
inventories, VADEQ used the following approaches:
    (i) Point source emissions were developed using the latest version
of EPA's Economic Growth Analysis System (EGAS 5.0).
    (ii) Area source emissions were also developed using growth factors
from EGAS 5.0 and then applied to the 2002 Area source inventory.
    (iii) Mobile nonroad emissions were developed using EPA's NONROAD
2005 model. The NONROAD 2005 model estimates fuel consumption and
emissions of total hydrocarbons, carbon monoxide, nitrogen oxides,
sulfur oxides, and particulate matter for all nonroad mobile source
categories except for aircraft, locomotives, and commercial marine
vessels (CMV).
    (iv) Mobile on-road source emissions were calculated using EPA's
MOBILE6.2 mobile source inventory model. The Virginia Department of
Transportation (VDOT) provided daily vehicle miles traveled (DVMT),
average speed data for each road type by jurisdiction, and annual
growth rates that were used to forecast DVMT into the future. Also, the
Virginia Department of Motor Vehicles provided registration data that
was specific to each jurisdiction. Mobile source emission projections
include the National Low Emission Vehicle Program (NLEV), the 2004 Tier
2 and Low Sulfur Gasoline Rule, the 2004 and 2007 Heavy-Duty Diesel
Vehicle Rules, and the 2006 Low Sulfur Diesel Rule. In

addition, James City, York, Chesapeake, Hampton, Newport News, Norfolk,
Poquoson, Portsmouth, Suffolk, Virginia Beach, and Williamsburg were
modeled with Phase II Reformulated Gasoline (RFG) while Gloucester and
Isle of Wight were modeled with conventional gasoline fuel.
    More detailed information on the compilation of the 2002, 2005,
2011, and 2018 inventories can found in the Technical Appendices, which
are part of VADEQ's October 18, 2006 submittal.
    (b) Maintenance Demonstration--On October 18, 2006, the VADEQ
submitted a maintenance plan as required by section 175A of the CAA.
The Hampton Roads maintenance plan shows maintenance of the 8-hour
ozone NAAQS by demonstrating that future emissions of VOC and
NOX will not exceed the attainment year 2005 emissions
levels throughout the Hampton Roads Area through the year 2018. A
maintenance demonstration need not be based on modeling. See Wall v.
EPA, supra; Sierra Club v. EPA, supra. See also 66 FR at 53099-53100;
68 FR at 25430-32.
    Tables 4 and 5 specify the VOC and NOX emissions for the
Hampton Roads Area for 2005, 2011, and 2018. The VADEQ chose 2011 as an
interim year in the maintenance demonstration period to demonstrate
that the VOC and NOX emissions are not projected to increase
above the 2005 attainment level during the time of the maintenance
period.

                                Table 4.--Total VOC Emissions for 2005-2018 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                     2005 VOC        2011 VOC        2018 VOC
                         Source category                             emissions       emissions       emissions
----------------------------------------------------------------------------------------------------------------
Point...........................................................          20.091          23.280          26.700
Area \1\........................................................          91.980         100.960         112.790
Mobile \2\......................................................          50.591          37.846          27.574
Nonroad.........................................................          42.320          33.912          31.315
                                                                 -----------------------------------------------
    Total.......................................................         204.982         195.998         198.379
----------------------------------------------------------------------------------------------------------------
\1\ Includes vehicle refueling emissions and the benefits of selected local controls (Stage I, CTG RACT, and
  open burning). Also includes site/project specific emissions estimates and projections.
\2\ Includes transportation provisions.

                                Table 5.--Total NOX Emissions for 2005-2018 (tpd)
----------------------------------------------------------------------------------------------------------------
                                                                     2005 NOX        2011 NOX        2018 NOX
                         Source category                             emissions       emissions       emissions
----------------------------------------------------------------------------------------------------------------
Point...........................................................          62.536          69.333          75.241
Area \1\........................................................          55.207          56.974          60.105
Mobile \2\......................................................          78.169          50.387          31.890
Non-road........................................................          30.208          29.116          23.093
                                                                 -----------------------------------------------
    Total.......................................................         226.120         205.810         190.329
----------------------------------------------------------------------------------------------------------------
\1\ Includes selected local controls (open burning). Also includes site/project specific emissions estimates and
  projections.
\2\ Includes transportation provisions.

    Additionally, the following programs are either effective or due to
become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:
    Currently in Effect:
     The National Low Emission Vehicle (NLEV) program;
     Open burning restrictions for James City, York,
Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth,
Suffolk, Virginia Beach, and Williamsburg;
     Control Technology Guideline (CTG) Reasonable Available
Control Technology (RACT) requirements for James City, York,
Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth,
Suffolk, Virginia Beach, and Williamsburg;
     Stage I gasoline vapor recovery requirements for James
City, York, Chesapeake, Hampton, Newport News, Norfolk, Poquoson,
Portsmouth, Suffolk, Virginia Beach, and Williamsburg;
     Motor vehicle fleet turnover with new vehicles meeting the
Tier 2 standards; and
     Low sulfur gasoline.
    Additionally, the following programs are in place and either
effective or are due to become effective:
     Heavy duty diesel on-road (2004/2007) and low sulfur on-
road (2006); 66 FR 5002, (January 18, 2001)
     Non-road emission standards (2008) and off-road diesel
fuel 2007/2010); 69 FR 38958 (June 29, 2004).
    Lastly, to further improve air quality and to provide room for
industrial and population growth while maintaining emissions in the
area to less than 2005 levels, the Commonwealth of Virginia has
initiated rulemaking to implement the following programs:
     Implement the Stage I requirements of 9 VAC 5 Chapter 40,
Article 37 in Isle of Wight and Gloucester;
     Implement open burning restriction requirements of 9 VAC 5
Chapter 40, Article 40 in Isle of Wight and Gloucester; and
     Implement existing source CTG RACT requirements of 9 VAC 5
Chapter 40, Articles 5-6, 24-36, and 39 in Isle of Wight and
Gloucester.
    Based on the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that VADEQ has successfully demonstrated that the 8-hour
ozone standard should be maintained in the Hampton Roads Area.
    (c) Monitoring Network--There are three monitors measuring ozone in
the Hampton Roads Area. VADEQ will continue to operate its current air
quality monitors (located in the Hampton Roads Area), in accordance
with 40 CFR part 58.
    (d) Verification of Continued Attainment--In addition to
maintaining the key elements of its regulatory program, the
Commonwealth will acquire ambient and source emission data to track
attainment and maintenance. The Commonwealth will track the progress of
the maintenance demonstration by periodically updating

the emissions inventory. This tracking will consist of annual and
periodic evaluations. The annual evaluation will consist of checks on
key emissions trend indicators as they actually emission update of
stationary sources, the Highway Performance Monitoring System (HPMS)
vehicle miles traveled data reported to the Federal Highway
Administration, and other growth indicators. These indicators will be
compared to the growth assumptions used in the plan to determine if the
predicted versus the observed growth remains relatively constant. The
Commonwealth will also develop and submit periodic (every three years)
emission inventories prepared under EPA's Consolidated Emission
Reporting Regulation (40 CFR 51, subpart A), beginning in 2005.
    (e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the CAA requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the Commonwealth will promptly correct a
violation of the NAAQS that occurs after redesignation. The maintenance
plan should identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the state would adopt and implement the measure(s).
    The ability of the Hampton Roads Area to stay in compliance with
the 8-hour ozone standard after redesignation depends upon VOC and
NOX emissions in the Area remaining at or below 2005 levels.
The Commonwealth's maintenance plan projects VOC and NOX
emissions to decrease and stay below 2005 levels through the year 2018.
The Commonwealth's maintenance plan outlines the procedures for the
adoption and implementation of contingency measures to further reduce
emissions should a violation occur.
    The Commonwealth's maintenance plan lays out situations where the
need to adopt and implement a contingency measure to further reduce
emissions would be triggered. Those situations are as follows:
    (i) An actual increase of the VOC or NOX emissions
exceed the regional emissions budgets, which would be identified or
predicted through the development of the comprehensive periodic
tracking inventories--The maintenance plan states that the VADEQ will
monitor the observed growth rates for VMT, population, and point source
VOC and NOX emissions on a yearly basis which will serve as
an early warning indicator of the potential for a violation. The plan
also states that comprehensive tracking inventories will also be
developed every 3 years using current EPA-approved methods to estimate
emissions, concentrating on areas identified in the less rigorous
yearly evaluations as being potential problems. If the regional
emissions budget for VOC or NOX is exceeded, the following
control strategies will be implemented as follows:
     Preparation of a complete VOC and NOX emission
inventory; and
     The expanded implementation of one or more of the
following control strategies, listed in Table 6, that are not currently
in place in the Hampton Roads Area.

         Table 6.--Maintenance Plan Contingency Measure Options
------------------------------------------------------------------------
            Control strategy                       Description
------------------------------------------------------------------------
9 VAC 5 Chapter 40, Article 42.........  Emission Standards for Portable
                                          Fuel Container Spillage.
9 VAC 5 Chapter 40, Article 47.........  Emissions Standards for Solvent
                                          Metal Cleaning Operations.
9 VAC 5 Chapter 40, Article 48.........  Emissions Standards for Mobile
                                          Equipment Repair and
                                          Refinishing Operations.
9 VAC 5 Chapter 40, Article 49.........  Emissions Standards for
                                          Architectural and Industrial
                                          Maintenance Coatings.
9 VAC 5 Chapter 40, Article 50.........  Emission Standards for Consumer
                                          Products.
9 VAC 5-40-300 of 9 VAC 5 Chapter 40,    General Process Operations--
 Article 4.                               Standard for Volatile Organic
                                          Compounds (non-CTG RACT for
                                          major sources).
9 VAC 5-40-310 of 9 VAC 5 Chapter 40,    General Process Operations--
 Article 4.                               Standards for Nitrogen Oxides
                                          (non-CTG RACT for major
                                          sources).
------------------------------------------------------------------------

    (ii) A violation (any 3-year average of each annual fourth highest
8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm occurs--The
maintenance plan states that if a violation (any 3-year average of each
annual fourth highest 8-hour average) of the 8-hour ozone NAAQS of 0.08
ppm occurs at a monitor located in the Hampton Roads monitoring
network, the VADEQ will implement two of the following control
strategies as follows:
     The expanded implementation of one or more of the control
strategies, listed in Table 6 that is not currently in place in the
Hampton Roads Area.
    (iii) A violation (any 3-year average of each annual fourth highest
8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm in any subsequent
ozone season--The maintenance plan states that if a violation (any 3-
year average of each annual fourth highest 8-hour average) of the 8-
hour ozone NAAQS of 0.08 ppm occurs in the Hampton Roads monitoring
network following the implementation of the requirements listed in the
previous section (section e(ii)) and in any subsequent ozone season,
two additional control strategies from Table 6 will be implemented.
    The following schedule for adoption, implementation and compliance
applies to the contingency measures concerning non-CTG RACT
requirements. It would also apply to the imposition of the area source
VOC regulations if those regulations had not already been implemented
due to other triggers or provisions of the maintenance plan.
     Notification received from EPA that a contingency measure
must be implemented, or three months after a recorded violation;
     Applicable regulation to be adopted 6 months after this
date;
     Applicable regulation to be implemented 6 months after
adoption;\3\
---------------------------------------------------------------------------

    \3\ In the event of implementation of the RACT contingency
measure, Virginia would amend its current RACT regulations to apply
them to non-CTG sources in the Hampton Roads Area within 6 months
after (a) notification received from EPA that the contingency
measure must be implemented, or (b) three months after a recorded
violation. The newly subject non-CTG RACT sources would need to
develop source-specific RACT plans and comply with their plans no
later than 12 months from the date of Virginia's adoption of the
amended regulations.

---------------------------------------------------------------------------

     Compliance with regulation to be achieved within 12 months
of adoption.
    The maintenance plan adequately addresses the five basic components
of a maintenance plan: Attainment inventory, maintenance demonstration,
monitoring network, verification of continued attainment, and a
contingency plan. EPA believes that the maintenance plan SIP revision
submitted by Virginia for the Hampton Roads area meets the requirements
of section 175A of the Act.

VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Hampton Roads Maintenance Plan Adequate and Approvable?

A. What Are the Motor Vehicle Emissions Budgets?

    Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e., RFP SIPs and attainment demonstration
SIPs) and maintenance plans identify and establish MVEBs for certain
criteria pollutants and/or their precursors to address pollution from
on-road mobile sources. In the maintenance plan, the MVEBs are termed
``on-road mobile source emission budgets.'' Pursuant to 40 CFR part 93
and 51.112, MVEBs must be established in an ozone maintenance plan. An
MVEB is the portion of the total allowable emissions that is allocated
to highway and transit vehicle use and emissions. An MVEB serves as a
ceiling on emissions from an area's planned transportation system. The
MVEB concept is further explained in the preamble to the November 24,
1993, transportation conformity rule (58 FR 62188). The preamble also
describes how to establish and revise the MVEBs in control strategy
SIPs and maintenance plans.
    Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
or reasonable progress towards the NAAQS. If a transportation plan does
not ``conform,'' most new projects that would expand the capacity of
roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA
policy, criteria, and procedures for demonstrating and ensuring
conformity of such transportation activities to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB contained
therein ``adequate'' for use in determining transportation conformity.
After EPA affirmatively finds the submitted MVEB is adequate for
transportation conformity purposes, that MVEB can be used by state and
federal agencies in determining whether proposed transportation
projects ``conform'' to the SIP as required by section 176(c) of the
CAA. EPA's substantive criteria for determining ``adequacy'' of a MVEB
are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic
steps: Public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision.'' This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; Transportation Conformity
Rule Amendments--Response to Court Decision and Additional Rule
Change'' on July 1, 2004 (69 FR 40004). EPA consults this guidance and
follows this rulemaking in making its adequacy determinations.
    The MVEBS for the Hampton Roads Area are listed in Table 1 of this
document for 2011 and 2018, and are the projected emissions for the on-
road mobile sources plus any portion of the safety margin allocated to
the MVEBs (safety margin allocation for 2011 and 2018 only). These
emission budgets, when approved by EPA, must be used for transportation
conformity determinations.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2018 safety
margin: Hampton Roads first attained the 8-hour ozone NAAQS during the
2003 to 2005 time period. The Commonwealth used 2005 as the year to
determine attainment levels of emissions for Hampton Roads. The total
emissions from point, area, mobile on-road, and mobile non-road sources
in 2005 equaled 204.982 tpd of VOC and 226.120 tpd of NOX.
The VADEQ projected emissions out to the year 2018 and projected a
total of 198.379 tpd of VOC and 190.329 tpd of NOX from all
sources in Hampton Roads. The safety margin for 2018 would be the
difference between these amounts, or 6.603 tpd of VOC and 35.791 tpd of
NOX. The emissions up to the level of the attainment year
including the safety margins are projected to maintain the Area's air
quality consistent with the 8-hour ozone NAAQS. The safety margin is
the extra emissions reduction below the attainment levels that can be
allocated for emissions by various sources as long as the total
emission levels are maintained at or below the attainment levels. Table
7 shows the safety margins for the 2011 and 2018 years.

        Table 7.--2011 and 2018 Safety Margins for Hampton Roads
------------------------------------------------------------------------
                                         VOC emissions    NOX emissions
            Inventory year                   (tpd)            (tpd)
------------------------------------------------------------------------
2005 Attainment.......................          204.982          226.120
2011 Interim..........................          195.998          205.810
2011 Safety Margin....................            8.984           20.310
2005 Attainment.......................          204.982          226.120
2018 Final............................          198.379          190.329
2018 Safety Margin....................            6.603           35.791
------------------------------------------------------------------------

    The VADEQ allocated 1.000 tpd VOC and 3.000 tpd NOX to
the 2011 interim VOC projected on-road mobile source emissions
projection and the 2011 interim NOX projected on-road mobile
source emissions projection to arrive at the 2011 MVEBs. For the 2018
MVEBs the VADEQ allocated 1.000 tpd VOC and 3.000 tpd NOX
from the 2018 safety margins to arrive at the 2018 MVEBs. Once
allocated to the mobile source budgets these portions of the safety
margins are no longer available, and may no longer be allocated to any
other source category. Table 8 shows the final 2009 and 2018 MVEBS for
the Hampton Roads Area.

          Table 8.--2011 and 2018 Final MVEBs for Hampton Roads
------------------------------------------------------------------------
                                         VOC emissions    NOX emissions
            Inventory year                   (tpd)            (tpd)
------------------------------------------------------------------------
2011 Projected on-road mobile source             36.846           47.387
 projected emissions..................
2011 Safety Margin Allocated to MVEBs.            1.000            3.000
2011 MVEBs............................           37.846           50.387
2018 Projected on-road mobile source             26.574           28.890
 projected emissions..................
2018 Safety Margin Allocated to MVEBs.            1.000            3.000
2018 MVEBs............................           27.574           31.890
------------------------------------------------------------------------

C. Why Are the MVEBs Approvable?

    The 2011 and 2018 MVEBs for the Hampton Roads Area are approvable
because the MVEBs for NOX and VOCs continue to maintain the
total emissions at or below the attainment year inventory levels as
required by the transportation conformity regulations.

D. What Is the Adequacy and Approval Process for the MVEBs in the
Hampton Roads Maintenance Plan?

    The MVEBs for the Hampton Roads Area maintenance plan are being
posted to EPA's conformity Web site concurrently with this proposal.
The public comment period will end at the same time as the public
comment period for this proposed rule. In this case, EPA is
concurrently processing the action on the maintenance plan and the
adequacy process for the MVEBs contained therein. In this proposed
rule, EPA is proposing to find the MVEBs adequate and also proposing to
approve the MVEBs as part of the maintenance plan. The MVEBs cannot be
used for transportation conformity until the maintenance plan and
associated MVEBs are approved in a final Federal Register notice, or
EPA otherwise finds the budgets adequate in a separate action following
the comment period.
    If EPA receives adverse written comments with respect to the
proposed approval of the Hampton Roads MVEBs, or any other aspect of
our proposed approval of this updated maintenance plan, we will respond
to the comments on the MVEBs in our final action or proceed with the
adequacy process as a separate action. Our action on the Hampton Roads
Area MVEBs will also be announced on EPA's conformity Web site: http://www.epa.gov/otaq/stateresources/transconf/index.htm
 (once there, click

on the ``Conformity'' button, then look for ``Adequacy Review of SIP
Submissions'').

VIII. Proposed Actions

    EPA is proposing to determine that the Hampton Roads Area has
attained the 8-hour ozone NAAQS. EPA is also proposing to approve the
redesignation of the Hampton Roads Area from nonattainment to
attainment for the 8-hour ozone NAAQS. EPA has evaluated Virginia's
redesignation request and determined that it meets the redesignation
criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes
that the redesignation request and monitoring data demonstrate that the
Hampton Roads Area has attained the 8-hour ozone standard. The final
approval of this redesignation request would change the designation of
the Hampton Roads Area from nonattainment to attainment for the 8-hour
ozone standard. EPA is also proposing to approve the associated
maintenance plan for the Hampton Roads Area, submitted on October 18,
2006, as a revision to the Virginia SIP. EPA is proposing to approve
the maintenance plan for the Hampton Roads Area because it meets the
requirements of section 175A as described previously in this notice.
EPA is also proposing to approve the 2002 base-year inventory for the
Hampton Roads Area, and the MVEBs submitted by Virginia for the Hampton
Roads Area in conjunction with its redesignation request. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.

IX. 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 (Public Law 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 specified 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
requirement, 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

approves a state rule implementing a Federal standard.
    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. Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources. 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 rule, proposing to approve the redesignation of the Hampton
Roads Area to attainment for the 8-hour ozone NAAQS, the associated
maintenance plan, the 2002 base-year inventory, and the MVEBS
identified in the maintenance plan, does not impose an information
collection burden under the provisions of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: April 5, 2007.
Judith Katz,
Acting Regional Administrator, Region III.
[FR Doc. E7-7017 Filed 4-12-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Notices]
[Page 66318]
[FR Doc No: 2020-23053]

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER21-86-000]

Orange County Energy Storage 2 LLC; Supplemental Notice that
Initial Market-Based Rate Filing Includes Request for Blanket Section
204 Authorization

    This is a supplemental notice in the above-referenced Orange County
Energy Storage 2 LLC's application for market-based rate authority,
with an accompanying rate tariff, noting that such application includes
a request for blanket authorization, under 18 CFR part 34, of future
issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street, NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is November 2, 2020.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically may mail similar pleadings to
the Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426. Hand delivered submissions in docketed
proceedings should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://ferc.gov) using the
``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. At this time,
the Commission has suspended access to the Commission's Public
Reference Room, due to the proclamation declaring a National Emergency
concerning the Novel Coronavirus Disease (COVID-19), issued by the
President on March 13, 2020. For assistance, contact the Federal Energy
Regulatory Commission at<EMAIL_ADDRESS>or call toll-free,
(886) 208-3676 or TYY,<PHONE_NUMBER>.

    Dated: October 13, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2020-23053 Filed 10-16-20; 8:45 am]
BILLING CODE 6717-01-P


Conference Call at the Request of  Earthjustice and NRDC, April 7, 2009

Next Steps for Spray Drift

Participants

Earthjustice:  Patti Goldman, Janette Brimmer, Kristen Boyles

NRDC:  Aaron Colangelo, Levi Jones

OPP:  Steve Bradbury, Bill Jordan, Rick Keigwin, Margaret Rice, Cathryn
O’Connell, Jill Bloom

OGC:  Mark Dyner, Michele Knorr

Introduction

Patti Goldman said the organizations were “heartened” by the
direction the Agency was taking with spray drift and related concerns.
It was agreed that nothing specific about the chlorpyrifos lawsuit would
be discussed.

Spray Drift PR Notice

Cathryn O’Connell discussed the general nature of the Notice and
characterized the comments that were received during the public comment
period, which closed March 5. She noted that the docket is still
processing comments and noted that write-in campaigns and petitions
submitted to the docket included over 30,000 signatories.  Many of the
comments concerned the “could cause adverse effects” language.
Asked about the schedule for next steps, she said that the Office was
sorting through the comments and had not yet developed a defined
schedule for next steps.

Petition to Protect Children from Pesticide Drift, Earthjustice and
Farmworker Justice

Jill Bloom noted that the Petition Docket had not received as many
comments as had the PR Notice Docket, that there was a good degree of
duplication in the comments for the two dockets, and that there was also
some overlap with the Revised Worker Risk Assessment Docket (closing
April 12). A workgroup has been assembled to advise management of policy
and technical issues raised by the petition.  The workgroup is
considering the petition’s requests on both 1) interim protections for
OPs and other acutely toxic pesticide classes, and 2) expedited
integration of drift exposures to children into Agency assessments and
risk management decisions.  The workgroup hopes to brief management on
its recommendations in the next several months.

Pesticide-Specific Advocacy

Patti Goldman indicated that if the Agency took action on immediate
no-spray zones for the pesticides of particular concern, it would be
less critical to expedite the inclusion of spray drift exposures into
the review of other pesticides.

Next steps

The group agreed to have a follow-up call in 2-3 months.


[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Rules and Regulations]
[Page 62433]
[FR Doc No: 2012-24595]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, and 1926

[Docket No. OSHA-H022K-2006-0062]
RIN 1218-AC20

Hazard Communication Standard; Approval of Information Collection
Requirements

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule; notice of the Office of Management and Budget's
(OMB) approval of information collection requirements.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Administration (OSHA) is
announcing that the Office of Management and Budget (OMB) approved the
revised information collection requirements contained in the Hazard
Communication Standard (HCS) (29 CFR parts 1910, 1915, and 1926) under
the Paperwork Reduction Act of 1995 (PRA-95). The OMB control number is
1218-0072.

DATES: The collections of information contained in the final rule
published March 26, 2012 (77 FR 17573) are effective October 15, 2012.

FOR FURTHER INFORMATION CONTACT: Theda Kenney or Todd Owen, Directorate
of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2222.

SUPPLEMENTARY INFORMATION: On March 26, 2012, OSHA published a final
rule that aligned the existing HCS with the United Nations Globally
Harmonized System of Classification and Labeling of Chemicals that
benefits workers by reducing confusion about chemical hazards in the
workplace, facilitating safety training and improving the understanding
of hazards, especially for low literacy workers. The final rule revised
existing collection of information (paperwork) requirements that were
approved by the Office of Management and Budget (OMB) under PRA-95, 44
U.S.C. 3501 et seq., and OMB's regulations at 5 CFR part 1320.
    Hazard communication is currently addressed by many different
international, national, and State authorities. These existing
requirements are not always consistent and often contain different
definitions of hazards and varying provisions for what information is
required on labels and safety data sheets (SDSs). The final standard
harmonizes the U.S. system with international norms and as a result
would enhance worker safety and facilitate international trade. The
final rule's modifications to the Hazard Communication Standard's
collection of information requirements include: (1) Revised criteria
for classification of chemical hazards; (2) revised labeling provisions
that include requirements for use of standardized signal words,
pictograms, hazard statements, and precautionary statements; (3) a
specified format for SDSs; and (4) related revisions to definitions of
terms used in the Standard and to requirements for employee training on
labels and SDSs.
    As required by PRA-95, the Federal Register notice for the Hazard
Communication final rule stated that the Department of Labor would
publish a notice in the Federal Register announcing the results of
OMB's reviews. On March 26, 2012, OSHA submitted a revised Hazard
Communication ICR for the final rule to OMB for approval in accordance
with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). On June
11, 2012, OMB approved the revised collections of information contained
in the final rule. This approval expires on June 30, 2015.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), OMB approved the collections of information contained in
the HCS, and assigned these collections of information OMB control
number 1218-0072. This approval expires on June 30, 2015. In accordance
with 5 CFR 1320.5(b), an Agency may not conduct or sponsor, and a
person need not respond to, a collection of information unless the
collection displays a valid OMB control number. Also, notwithstanding
any other provision of law, no employer shall be subject to penalty for
failing to comply with a collection of information if the collection of
information does not display a currently valid OMB control number.

Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, directed the preparation of this
notice. The authority for this notice is the Paperwork Reduction Act of
1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor's Order No. 1-2012
(77 FR 3912).

    Signed at Washington, DC on October 2, 2012.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2012-24595 Filed 10-12-12; 8:45 am]
BILLING CODE 4510-26-P