+----------+------------------------------------+---------------+----+---+
| Number   |                                    |               |    |   |
| range    |                                    |               |    |   |
| CHAPTER  |                                    |               |    |   |
| **UNITED |                                    |               |    |   |
| STATES   |                                    |               |    |   |
| ENVIR    |                                    |               |    |   |
| ONMENTAL |                                    |               |    |   |
| PR       |                                    |               |    |   |
| OTECTION |                                    |               |    |   |
| AGENCY** |                                    |               |    |   |
|          |                                    |               |    |   |
| **REGION |                                    |               |    |   |
| III**    |                                    |               |    |   |
|          |                                    |               |    |   |
| **1650   |                                    |               |    |   |
| Arch     |                                    |               |    |   |
| Street** |                                    |               |    |   |
|          |                                    |               |    |   |
| **Phila  |                                    |               |    |   |
| delphia, |                                    |               |    |   |
| Penn     |                                    |               |    |   |
| sylvania |                                    |               |    |   |
| 1910     |                                    |               |    |   |
| 3-2029** |                                    |               |    |   |
+----------+------------------------------------+---------------+----+---+
|          |                                    | **DATE:** May |    |   |
|          |                                    | 1, 2006       |    |   |
+----------+------------------------------------+---------------+----+---+
| **SU     | Approval of Amendments to          |               |    |   |
| B­JECT:** | Virginia's Existing Regulation     |               |    |   |
|          | Provisions Concerning Maintenance, |               |    |   |
|          | Nonattainment, and PSD Areas       |               |    |   |
|          |                                    |               |    |   |
|          | \[EPA-R03-OAR-2005-0010\]          |               |    |   |
+----------+------------------------------------+---------------+----+---+
| *        | Ellen Wentworth                    |               |    |   |
| *FROM:** |                                    |               |    |   |
+----------+------------------------------------+---------------+----+---+
| **TO:**  | File                               |               |    |   |
+----------+------------------------------------+---------------+----+---+
| *        | Makeba Morris                      |               |    |   |
| *THRU:** |                                    |               |    |   |
|          | Branch Chief                       |               |    |   |
+----------+------------------------------------+---------------+----+---+

**I. Background**

This technical support document (TSD) evaluates the August 15, 17, 19,
September 28, and October 3, 2005 Commonwealth of Virginia, Department
of Environmental Quality (VADEQ) revisions to the Commonwealth of
Virginia State Implementation Plan (SIP). These revisions consist of
amendments to existing regulations concerning maintenance,
nonattainment, and prevention of significant deterioration (PSD) areas
found in 9 VAC 5, Chapter 20 of Virginia's regulations for the Control
and Abatement of Air Pollution.

Listed below is a summary of each of the SIP revisions submitted by the
Commonwealth of Virginia on those dates.

**II. Summary of SIP Revisions**

**A**. On August 15, 2005, the Commonwealth of Virginia submitted a
revision to its SIP (Revision 097). This revision consists of formatting
changes to Virginia's regulation, 9 VAC 5-20-203, Maintenance Areas; the
removal of the Hampton Roads Area from the list of nonattainment areas
found in 9 VAC 5-20-204, Nonattainment Areas; and the removal of the
exemption of the Hampton Roads Area from the list of PSD areas found in
9 VAC 5-20-205.

The August 15, 2005 revision to 9 VAC 5-20-203, Maintenance Areas,
eliminates the air quality maintenance area (AQMA) concept which was
promulgated by the EPA in the 1970\'s and replaces it with the
maintenance area concept consistent with the 1990 Clean Air Act
Amendments (CAAA). The revised format consists of geographically defined
maintenance areas categorized by pollutants (ozone, carbon monoxide and
other pollutants). This revision will not result in the backsliding of
any control measures that have been submitted by the Commonwealth and
approved by EPA into the Commonwealth of Virginia SIP. The AQMAs
originated in a SIP submittal made by the Commonwealth on May 7, 1974
and approved by EPA in 40 CFR 52.2465 (c)(13). The AQMAs for Virginia
were codified as federal regulations in 40 CFR 52.2449 but that section
was later repealed. The AQMAs were added to the state regulations
effective August 9, 1975. This was done to have the areas in the state
regulations in case the Commonwealth did want to use them for SIP
regulatory purposes at a later time. The AQMAs were, however, used in
the open burning rule, but that rule was not submitted as a SIP revision
until some time later. The only provisions of the open burning rule in
the SIP are those necessary to implement the seasonal restrictions which
originated to address nonattainment issues after the 1990 CAAA and the
Commonwealth uses the VOC and NO~x~ emissions control areas to implement
those provisions.

The August 15, 2005 revision also reflects the redesignation of the
Hampton Roads Area to attainment of the 1-hour ozone NAAQS, by deleting
the area from the list of 1-hour ozone nonattainment areas found in 9
VAC 5-20-204.1(c) and adding it to the list of ozone maintenance areas
found in 9 VAC 5-20-203.1. Additionally, the revision removes the
exclusion of the Hampton Roads Area from the list of PSD areas found in
9 VAC 5-20-205.A.4(f). Under section 107(d)(1) of the CAAA of 1990, EPA
was required to designate the Hampton Roads Area as nonattainment
because the area violated the 1-hour ozone standard during the years
1987-1989 (November 6, 1991, 56 FR 56694, as amended November 30, 1992,
57 FR 56762). The Hampton Roads Area consists of the localities of James
City County, York County, Chesapeake City, Hampton City, Newport News
City, Norfolk City, Poquoson City, Portsmouth City, Suffolk City,
Virginia Beach City, and Williamsburg City. This area was able to
achieve the 1-hour ozone standard and was redesignated a maintenance
area on June 26, 1997 (62 FR 34408).

In addition, the August 15, 2005 revision adds the Northern Virginia
Carbon Monoxide Area to the list of carbon monoxide maintenance areas
found in 9 VAC 5-20-203.2 since this area was redesignated to attainment
for the carbon monoxide NAAQS on January 30, 1996 (62 FR 2931). The
Metropolitan Washington DC-MD-VA Area (including the Northern Virginia
Area) was a pre-1990 carbon monoxide nonattainment area. When the CAAA
were passed in 1990, this area was classified as a moderate
nonattainment area. The Metropolitan Washington DC-MD-VA Area attained
the carbon monoxide standard in the 1990s and, in accordance with CAAA
section 175(a), submitted a CO maintenance plan covering the period
1996-2007. EPA approved the redesignation and maintenance plan for the
Virginia portion on January 30, 1996 (61 FR 2931), effective March 15,
1996. In accordance with section 175(b), the region was required to
submit a second maintenance plan within eight years of its
redesignation. This second maintenance plan provides for maintenance of
the carbon monoxide standard through March 16, 2016. EPA approved this
second maintenance plan on April 4, 2005 (70 FR 16958), effective on
June 3, 2005. The revision also adds a subsection to 9 VAC 5-20-203.3,
Maintenance Areas, to include all other pollutants.

It should be noted that this rulemaking action is not amending 9 VAC
5-20-204.1(a) of the August 15, 2005 submittal, since this submittal
shows the Washington Area as a "serious" area, and EPA approved a change
on August 9, 2004 (69 FR 48150) that designated the Northern Virginia
Ozone Nonattainment Area as "severe." Nor did the August 15, 2005
submittal amend 9 VAC 5-20-206.1(a). As a result, 9 VAC 5-20-204.1(a)
should not be amended as part of this rulemaking action since at the
time of the effective date of this SIP revision (January 1, 1998), the
area was still classified as "serious."

The August 15, 2005 SIP revision was adopted by the Virginia State Air
Pollution Control Board on September 11, 1997, and became effective on
January 1, 1998.

**B.** On August 17, 2005, the Commonwealth of Virginia submitted a
revision to its SIP (Revision R97). This revision consists of amendments
to Virginia's regulations 9 VAC 5-20-203, Maintenance Areas, 9 VAC
5-20-204, Nonattainment Areas, and 9 VAC 5-20-205, PSD Areas. The August
17 revision amends 9 VAC 5-20-203.1 Maintenance Areas, by adding the
Richmond Area, to the list of ozone maintenance areas since this area
was redesignated to attainment for the 1-hour ozone standard on November
17, 1997 ( 62 FR 61237). The Richmond Area was designated as
nonattainment under the CAAA of 1990 under operation of law, and
classified as a moderate 1-hour ozone nonattainment area (56 FR 56694).
The Richmond Area consists of a portion of Charles City County,
Chesterfield County, Hanover County, Henrico County, Colonial Heights
City, Hopewell City, and Richmond City. As a result of the Richmond Area
being redesignated to attainment for the ozone NAAQS, the August 17,
2005 SIP revision also removes the Richmond Area from the list of ozone
nonattainment areas found in 9 VAC 5-20-204.1(b), and removes the
exclusion of the Richmond Area from the list of PSD areas found in 9 VAC
5-20-205 A.4(e).

It should be noted that this rulemaking action is not amending 9 VAC
5-20-204.1(a) of the August 17, 2005 submittal, since this subsection
indicates the Washington Area as a "serious" area, and EPA approved a
change on August 9, 2004 (69 FR 48150) that designated the Northern
Virginia Ozone Nonattainment Area as "severe." Nor did the August 17,
2005 submittal amend 9 VAC 5-20-206.1(a). As a result, 9 VAC
5-20-204.1(a) should not be amended as part of this rulemaking action
since at the time of the effective date of this SIP revision (April 1,
1998), the area was still classified as "serious."

The August 17, 2005 SIP revision was adopted by the State Air Pollution
Control Board on January 8, 1998, and became effective on April 1, 1998.

**C**. On August 19, 2005, the Commonwealth of Virginia submitted a
revision to its SIP (Revision A98). This revision consists of amendments
to Virginia's regulations 9 VAC 5-20-204, Nonattainment Areas, and 9 VAC
5-20-205, PSD Areas, and reflects the first repeal of the 1-hour ozone
NAAQS. The August 19, 2005 revision amends 9 VAC 5-20-204.1(b), by
removing the White Top Mountain Area from the areas regulated as ozone
nonattainment areas, and amends 9 VAC 5-20-205.A.4(a) to remove the
exemption of the White Top Mountain Area from the areas subject to
regulation as a PSD area.

On November 6, 1991 (56 FR 56694), EPA designated the White Top
Mountain, Virginia Area as nonattainment of the 1-hour ozone NAAQS and
classified the area as a rural transport area (marginal). The White Top
Mountain Area is the portion of White Top Mountain above the 4,500 foot
elevation in Smyth County. In a July 18, 1997 (62 FR 38856) final rule,
EPA promulgated a regulation that replaced the 1-hour ozone NAAQS with
an 8-hour standard at a level of 0.08 parts per million (ppm). The new
standard became effective on September 16, 1997, and provided increased
protection to the public, especially children and other at-risk
populations. On July 18, 1997, EPA announced that revocation of the
1-hour ozone NAAQS would be delayed until areas achieved attainment of
the 1-hour NAAQS. This was done in order to facilitate continuity in
public health protection during the transition to the new NAAQS. In a
June 5, 1998 final rule (63 FR 31014), EPA identified ozone areas where
the 1-hour standard was no longer applicable because these areas had not
measured a current violation of the 1-hour standard. For all other
areas, the 1-hour standard continued to apply. The June 5, 1998 final
rule was promulgated to assist in the phasing-out of the 1-hour standard
since the then newly promulgated 8-hour standard was in effect and was
more protective of the public health than the 1-hour ozone standard. All
of Smyth County, Virginia including the White Top Mountain Area, was one
of the areas where the 1-hour standard was no longer applicable (63 FR
31087, June 5, 1998). On January 1, 1999, Virginia amended 9 VAC
5-20-204.1(b) to remove the White Top Mountain area from the areas
regulated as ozone nonattainment areas and amended 9 VAC 5-20-205.A.4
(a) to remove the exemption of the White Top Mountain area from the
areas subject to regulations as a PSD area. The August 19, 2005 SIP
revision submittal reflects this change.

On May 14, 1999, the U.S. Court of Appeals for the District of Columbia
remanded the 8-hour NAAQS for ozone and curtailed EPA's authority to
enforce it. The May, 1999 court decision undermined the basis for EPA's
previous determinations on the applicability of the 1-hour ozone
standard. In that ruling, the court remanded the 8-hour NAAQS for ozone
and curtailed EPA's authority to enforce it. The effectiveness of the
8-hour standard served as the underlying basis for EPA's regulations
governing the June, 1998 applicability determinations, and thus for
EPA's finding that the 1-hour standard no longer applied in areas that
EPA determined were attaining the 1-hour standard. As a result, on
October 25, 1999 (64 FR 57424), EPA proposed the 1-hour ozone standard
would be reinstated in areas where it had previously been revoked and
the associated designations and classifications that previously applied
in such areas with respect to the 1-hour NAAQS would also be reinstated.

On July 20, 2000 (65 FR 45182), EPA issued a final rule rescinding the
prior findings in the June 1998 final rule that the 1-hour ozone NAAQS,
and, the accompanying designations and classifications no longer applied
in certain areas. EPA reinstated the 1-hour ozone NAAQS because the
public health protection afforded by the 8-hour ozone standard was being
delayed due to continued litigation regarding the 8-hour ozone standard.
The 1-hour ozone NAAQS again became applicable and the designations and
classifications that previously applied in areas with respect the 1-hour
standard were also reinstated. The July 20, 2000 final rule reinstated
the White Top Mountain Area as a rural transport (marginal) ozone
nonattainment area under the 1-hour ozone NAAQS. The effective date for
the reinstatement of the 1-hour ozone NAAQS in the White Top Mountain
Area was January 16, 2001. [See]{.underline} 65 FR 45182 at 45182
(effective date under "DATES" and 65 FR at 45190 (Table 1), July 20,
2000.

On April 30, 2004 (69 FR 23951), EPA published the first phase of its
final rule to implement the 8-hour ozone NAAQS (Phase I Rule). [^1] Also
on April 30, 2004 (69 FR 23858), EPA published 8-hour ozone designations
for all areas of the country. For most areas, including the White Top
Mountain Area, the designations under the 8-hour ozone NAAQS became
effective on June 15, 2004. The Phase I Rule provided that the 1-hour
ozone NAAQS would no longer apply for an area one year following the
effective date of the area's designation for the 8-hour ozone NAAQS. On
August 3, 2005 (70 FR 44470), EPA issued a final rule that codified the
revocation of the 1-hour standard for those areas with effective 8-hour
ozone designations. On June 15, 2005, all of Smyth County, Virginia was
no longer subject to the 1-hour ozone NAAQS and was designated
attainment of the 8-hour ozone NAAQS.

When Virginia amended 9 VAC 5-20-204.1(b) and 9 VAC 5-20-205.A.4(a) to
remove the White Top Mountain Area from the areas regulated as ozone
nonattainment areas, and added the White Top Mountain Area to the areas
subject to regulation as PSD areas, the White Top Mountain Area was no
longer subject to the 1-hour ozone NAAQS under EPA's June 5, 1998 final
rule (63 FR 31014) as discussed previously. In addition, the White Top
Mountain Area had not been designated nonattainment under the 8-hour
ozone NAAQS. However, between January 16, 2001, the applicable effective
date for the July 20, 2000 final rule (65 FR 45182) reinstating the
1-hour ozone NAAQS, and June 15, 2005 when the 1-hour ozone NAAQS was
revoked, the White Top Mountain Area was subject to the 1-hour ozone
NAAQS. During this period, EPA would not have been able to approve the
August 19, 2005 revision (Rev. A98) of 9 VAC 5-20-204.1(b) and 9 VAC
5-20-205.A.4(a) into the Virginia SIP because such a revision would have
had the effect of removing the applicability of Virginia's nonattainment
NSR program in the White Top Mountain Area which was once again a 1-hour
nonattainment area. Now that the 1-hour standard has been revoked and
the White Top Mountain Area is designated attainment for all NAAQS, the
only permitting program Virginia must have under Title I of the CAA is
the PSD program. Therefore, EPA can now approve these changes to 9 VAC
5-20-204.1(b) and 9 VAC 5-20-205.A.4(a) for the White Top Mountain Area
that were submitted on August 19, 2005 into the Virginia SIP.

It should be noted that this rulemaking action is not amending 9 VAC
5-20-204.1(a) of the August 19, 2005 submittal, since the submittal
indicates the Washington Area as a "serious" area, and EPA approved a
change on August 9, 2004 (69 FR 48150) that designated the Northern
Virginia Ozone Nonattainment Area as "severe." Nor did the August 19,
2005 submittal amend 9 VAC 5-20-206.1(a). As a result, 9 VAC
5-20-204.1(a) should not be amended as part of this rulemaking action
since at the time of the effective date of this SIP revision (January 1,
1999), the area was still classified as "serious."

The August 19, 2005 SIP revision was adopted on September 17, 1998, and
became effective on January 1, 1999.

**D.** On September 28, 2005, the Commonwealth of Virginia submitted a
revision to its SIP (Revision B04). The revision consists of amendments
to Virginia's regulations 9 VAC 5-20- 204, Nonattainment Areas, and 9
VAC 5-20-205, PSD Areas. The September 28, 2005 SIP revision amends
Virginia's SIP by reformatting 9 VAC 5-20-204, Nonattainment Areas, to
include subsections A. and B. Subsection A.1.includes an updated list of
1-hr ozone nonattainment areas. Subsection A.2.contains a list of areas
designated under the new 8-hour ozone NAAQS. Subsection B. reflects the
revocation of the 1-hour standard for all areas listed in 9 VAC 5-20-204
A.1. (Ozone -1 hour, June 15, 2004, effective June 15, 2005). As of the
effective date of this submittal, August 25, 2004, the ozone
nonattainment designations read as follows: For 9 VAC 5-20-204.A.1.
(1-hr ozone): the Northern Virginia area (severe); for 9 VAC
5-20-204.A.2 (8-hr ozone): the Fredericksburg area, including Stafford
County (moderate); the Northern Virginia area (moderate); the Hampton
Roads area (marginal); the Richmond area (moderate); the Shenandoah
National Park area (basic). The revision also amends the list of PSD
areas in 9 VAC 5-20-205.A by deleting the list of specific localities
and making the list generic, by stating that all areas are subject that
are not designated as nonattainment. It should be noted that since the
September 28, 2005 SIP revision submittal, EPA has redesignated the
Fredericksburg (December 23, 2005, 70 FR 76165), and Shenandoah National
Park (January 3, 2006, 71 FR 24) ozone nonattainment areas as attainment
for the 8-hour ozone standard.

The September 28, 2005 submittal also amends 9 VAC 5-20-205.B., by
removing mercury, beryllium, asbestos, and vinyl chloride from the list
of pollutants for which all areas of the state are geographically
defined as PSD areas. The 1990 Amendments to the CAA at section
112(b)(6) exempted hazardous air pollutants (HAPs) listed under section
112(b)(1) from the PSD requirements in part C of the CAA. These HAPs
include: arsenic, asbestos, benzene, beryllium, mercury, radionuclides,
and vinyl chloride, all of which were previously regulated under the PSD
rules. Virgina has consequently removed these pollutants from 9 VAC
5-20-205.B to conform to the 1990 CAA amendments.

This revision was adopted on June 29, 2004, and became effective on
August 25, 2004.

On April 30, 2004, EPA amended 40 CFR Part 81 by adding a list of areas
that were nonattainment for the 8-hour ozone NAAQS. The new ozone
nonattainment areas became effective on June 15, 2004. In addition to
providing the basis for broadbased nonregulatory plans for attainment
and maintenance of the standards, the nonattainment area designations
and classifications are also part of the legally enforceable means by
which the state implements the new source review (NSR) program for
nonattainment areas. On April 30, 2004, EPA promulgated a final rule to
implement Phase I of the 8-hour ozone standard. 40 CFR 50.9 has been
revised to indicate that the 1-hour standard is no longer effective one
year after the effective date of the rule, which means that the 8-hour
standard replaces the 1-hour standard on June 15, 2005.

The September 28 revision adds a provision to 9 VAC 5-20-204.B. which
removes the severe area program in the Northern Virginia Ozone
Nonattainment area under the 1-hour standard. The Virginia portion of
the Ozone Transport Region (OTR) is the same area in Virginia that
constituted the Northern Virginia Ozone Nonattainment area under the
1-hour standard. Because the severe area program imposed more stringent
requirments than required under section 184 in that area, Virginia did
not need to have a separate NSR program meeting the section 184
requirements. As a result, on January 6, 2006 (71 FR 890), EPA published
a proposed rulemaking implementing the NSR program required under
section 184 of the CAA in Virginia's portion of the (OTR). No comments
were received on this proposed rulemaking and EPA is in the process of
issuing a final rulemaking on this proposed action. Therefore, not
withstanding the nonattainment designations in 9 VAC 5-20-204, the
Virginia portion of the OTR (Arlington County, Fairfax County, Loudoun
County, Prince William County, Stafford County, Alexandria City, Fairfax
City, Falls Church City, Manassas City, and Manassas Park City) will be
subject to OTR NSR contingent upon EPA issuing a final action approving
the January 6, 2006 (71 FR 890) rulemaking.

**E.** On October 3, 2005, the Commonwealth of Virginia submitted a
revision to its SIP. (Revision N04). This revision reflects the
reclassification of the Richmond 8-hour Ozone Nonattainment Area found
in 9 VAC 5-20-204.2, Nonattainment Areas, from "moderate" to "marginal."
EPA's final rulemaking reclassifying the Richmond Area from an 8-hour
"moderate" ozone nonattainment area, to a "marginal" 8-hour ozone
nonattainment area, was published on September 22, 2004 (69 FR 56697),
and became effective on November 22, 2004.

The Richmond Area was designated nonattainment by operation of law under
the CAAA of 1990, and classified as a "moderate" 1-hour ozone
nonattainment area (56 FR 56694). The Richmond Area consists of a
portion of Charles City County, Chesterfield County, Hanover County,
Henrico County, Prince George County, Colonial Heights City, Hopewell
City, Petersburg City, and Richmond City. The area was able to achieve
the 1-hour ozone NAAQS and was redesignated attainment on November 17,
1997 (62 FR 61237), effective December 17, 1997.

On July 18, 1997, EPA promulgated a revised ozone standard of 0.08 parts
per million (ppm), measured over an 8-hour period, i.e., the 8-hour
standard (62 FR 38856). The 8-hour rule was challenged by numerous
litigants, but in March 2002, the D.C. Circuit rejected all remaining
challenges to the 8-hour standard. The process for designations
following promulgation of a NAAQS is contained in section 107(d)(1) of
the CAA. The final rule establishing designations for all areas of the
country was signed by the EPA Administrator on April 15, 2004 and
published in the Federal Register on April 30, 2004 (69 FR 23858). The
rule also sets forth the classifications for certain ozone nonattainment
areas. The EPA designated the Richmond Area as "moderate" for the 8-hour
ozone NAAQS based upon its design value of 94 parts per billion (ppb).

Under section 181(a)(4), an ozone nonattainment area may be reclassified
if the design value of the area is 5 percent greater or 5 percent less
than the level on which such a classification was based. The provisions
of section 181(a)(4) set out general criteria and grant the
Administrator broad discretion in making or determining to make a
reclassification. The EPA described these criteria in the April 30, 2004
(69 FR 23858) final rule. The April 30, 2004 action invited states to
submit the reclassification requests within 30 days of the effective
date of the designations and classifications which was June 15, 2004,
which meant that reclassification requests were to be submitted by July
2004. On July 12, 2004, the Virginia Department of Environmental Quality
submitted a request to reclassify the Richmond Area from a "moderate" to
"marginal" 8-hour ozone nonattainment area.

In summary, the following factors supported the request for
reclassification of the Richmond Area to "marginal": the design value 94
ppb meets EPA's criteria to qualify for consideration of a bump down,
local and regional modeling together with declining emissions from
local, regional and national regulations support the conclusion that the
Richmond Area is likely to attain by 2007. Thus the request met the
criteria EPA established and did not violate any of the criteria.
Therefore EPA approved the reclassification request to bump down the
Richmond Area from a "moderate" 8-hour ozone nonattainment area, to a
"marginal" 8-hour ozone nonattainment area on September 22, 2004 (69 FR
56697), effective November 22, 2004.

**III. Conclusion and Recommended Agency Action**

EPA has reviewed the August 15, 17, 19, September 28, and October 3,
2005 SIP revisions and has determined that these revisions strengthen
the Commonwealth's SIP and support protection of the NAAQS. Therefore,
approval of these SIP revisions is recommended.

[^1]: 1 ^1^The Phase I rule was amended on May 26, 2005 (70 FR 30592).
    This amendment addressed two issues raised in a petition for
    reconsideration of the Phase I Rule and clarified two aspects of
    that implementation rule. On July 8, 2005 (70 FR 39413), another
    final rule addressed other issues raised in a petition for
    reconsideration of the April 30, 2004, Phase 1 Rule.