[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Proposed Rules]
[Pages 18602-18614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7017]


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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.

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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

[[Page 18603]]

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. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: <a href="/cdn-cgi/l/email-protection#d8b5b7aaaab1abf6b5b9b3bdbab998bda8b9f6bfb7ae"><span class="__cf_email__" data-cfemail="8ce1e3fefee5ffa2e1ede7e9eeedcce9fceda2ebe3fa">[email protected]</span></a>
    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 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 www.regulations.gov or e-mail. 
The 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 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 
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 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, (215) 814-2156, or by e-
mail at <a href="/cdn-cgi/l/email-protection#492a28393b202667282430092c3928672e263f"><span class="__cf_email__" data-cfemail="47242637352e2869262a3e0722372669202831">[email protected]</span></a>.

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 
(NO<INF>X</INF>) 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 NO<INF>X</INF> and VOC react in the presence of sunlight 
to form ground-level ozone. The air pollutants NO<INF>X</INF> 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

[[Page 18604]]

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).
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    \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).
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    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:
    <bullet> ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, June, 18, 1990;
    <bullet> ``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;
    <bullet> ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
    <bullet> ``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality

[[Page 18605]]

Management Division, September 4, 1992;
    <bullet> ``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;
    <bullet> ``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;
    <bullet> ``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;
    <bullet> 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;
    <bullet> ``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
    <bullet> ``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 
NO<INF>X</INF> 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
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2011..........................................       37.846       50.387
2018..........................................       27.574       31.890
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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.

[[Page 18606]]



  Table 2.--Hampton Roads Area Fourth Highest 8-Hour Average Values, Hampton Roads Monitors, Parts per Million
                                                      (ppm)
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                                                                                                      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:
    <bullet> Submittal of a SIP that has been adopted by the State 
after reasonable public notice and hearing;
    <bullet> Provisions for establishment and operation of appropriate 
procedures needed to monitor ambient air quality;
    <bullet> Implementation of a source permit program; provisions for 
the implementation of part C requirements (Prevention of Significant 
Deterioration (PSD));
    <bullet> Provisions for the implementation of part D requirements 
for New Source Review (NSR) permit programs;
    <bullet> Provisions for air pollution modeling; and
    <bullet> 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 NO<INF>X</INF> SIP Call, October 
27, 1998 (63 FR 57356), amendments to the NO<INF>X</INF> 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

[[Page 18607]]

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 NO<INF>X</INF> SIP Call rules, EPA noted in its Phase 1 
Final Rule to Implement the 8-hour Ozone NAAQS, that the NO<INF>X</INF> 
SIP Call rules are not ``an'' `applicable requirement' for purposes of 
section 110(1) because the NO<INF>X</INF> 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 NO<INF>X</INF> 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

[[Page 18608]]

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.

[[Page 18609]]



                  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 
NO<INF>X</INF> 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) NO<INF>X</INF> 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 NO<INF>X</INF> 
during 2005 and consists of a list of sources and their associated 
emissions.
    To develop the NO<INF>X</INF> 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

[[Page 18610]]

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 
NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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:
    <bullet> The National Low Emission Vehicle (NLEV) program;
    <bullet> Open burning restrictions for James City, York, 
Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, 
Suffolk, Virginia Beach, and Williamsburg;
    <bullet> 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;
    <bullet> Stage I gasoline vapor recovery requirements for James 
City, York, Chesapeake, Hampton, Newport News, Norfolk, Poquoson, 
Portsmouth, Suffolk, Virginia Beach, and Williamsburg;
    <bullet> Motor vehicle fleet turnover with new vehicles meeting the 
Tier 2 standards; and
    <bullet> Low sulfur gasoline.
    Additionally, the following programs are in place and either 
effective or are due to become effective:
    <bullet> Heavy duty diesel on-road (2004/2007) and low sulfur on-
road (2006); 66 FR 5002, (January 18, 2001)
    <bullet> 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:
    <bullet> Implement the Stage I requirements of 9 VAC 5 Chapter 40, 
Article 37 in Isle of Wight and Gloucester;
    <bullet> Implement open burning restriction requirements of 9 VAC 5 
Chapter 40, Article 40 in Isle of Wight and Gloucester; and
    <bullet> 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

[[Page 18611]]

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 
NO<INF>X</INF> emissions in the Area remaining at or below 2005 levels. 
The Commonwealth's maintenance plan projects VOC and NO<INF>X</INF> 
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 NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> is exceeded, the following 
control strategies will be implemented as follows:
    <bullet> Preparation of a complete VOC and NO<INF>X</INF> emission 
inventory; and
    <bullet> 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:
    <bullet> 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.
    <bullet> Notification received from EPA that a contingency measure 
must be implemented, or three months after a recorded violation;
    <bullet> Applicable regulation to be adopted 6 months after this 
date;
    <bullet> 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.

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[[Page 18612]]

    <bullet> 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 PM<INF>2.5</INF> 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 NO<INF>X</INF>. 
The VADEQ projected emissions out to the year 2018 and projected a 
total of 198.379 tpd of VOC and 190.329 tpd of NO<INF>X</INF> 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 
NO<INF>X</INF>. 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
------------------------------------------------------------------------


[[Page 18613]]

    The VADEQ allocated 1.000 tpd VOC and 3.000 tpd NO<INF>X</INF> to 
the 2011 interim VOC projected on-road mobile source emissions 
projection and the 2011 interim NO<INF>X</INF> 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 NO<INF>X</INF> 
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 NO<INF>X</INF> 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

[[Page 18614]]

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


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