Approval and Promulgation of Air Quality Implementation Plans; Ohio; Redesignation of the Ohio Portion of the Wheeling Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter, 38247-38256 [2013-15295]
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Federal Register / Vol. 78, No. 123 / Wednesday, June 26, 2013 / Proposed Rules
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[FR Doc. 2013–15016 Filed 6–25–13; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
TKELLEY on DSK3SPTVN1PROD with PROPOSALS
[EPA–R05–OAR–2012–0338; FRL–9827–6]
Approval and Promulgation of Air
Quality Implementation Plans; Ohio;
Redesignation of the Ohio Portion of
the Wheeling Area to Attainment of the
1997 Annual Standard for Fine
Particulate Matter
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; Supplemental.
AGENCY:
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EPA is issuing a supplement
to its proposed approval of Ohio’s
request to redesignate the Ohio portion
of the Wheeling, West Virginia-Ohio,
area to attainment for the 1997 annual
National Ambient Air Quality Standards
(NAAQS or standard) for fine
particulate matter (PM2.5). This
supplemental proposal revises and
expands the basis for proposing
approval of the state’s request, in light
of developments since EPA issued its
initial proposal on November 30, 2012.
This supplemental proposal addresses
the effects of a January 4, 2013, decision
of the United States Court of Appeals for
the District of Columbia (DC Circuit or
Court) to remand to EPA two final rules
implementing the 1997 PM2.5 standard.
In this supplemental proposal, EPA is
also proposing to approve a supplement
to the emission inventories previously
submitted by Ohio. EPA is proposing
that the inventories for ammonia and
volatile organic compounds (VOC), in
conjunction with the inventories for
nitrogen oxides (NOX), direct PM2.5, and
sulfur dioxide (SO2) that EPA
previously proposed to approve, meet
the comprehensive emissions inventory
requirements of the Clean Air Act (CAA
or Act). EPA is seeking comment only
on the issues raised in its supplemental
proposal, and is not re-opening for
comment other issues raised in its prior
proposal.
DATES: Comments must be received on
or before July 26, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2012–0338, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. E-Mail: Blakley.Pamela@epa.gov.
3. Fax: (312) 692–2450.
4. Mail: Pamela Blakley, Chief,
Control Strategies Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand delivery: Pamela Blakley,
Chief, Control Strategies Section, Air
Programs Branch (AR–18J), U.S.
Environmental Protection Agency, 77
West Jackson Boulevard, 18th floor,
Chicago, Illinois 60604. Such deliveries
are only accepted during the Regional
Office normal hours of operation, and
special arrangements should be made
for deliveries of boxed information. The
Regional Office official hours of
business are Monday through Friday,
8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2012–
SUMMARY:
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38247
0338. 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 email. 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 email
comment directly to EPA without going
through www.regulations.gov, your
email 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. For additional instructions
on submitting comments, go to Section
I of this document, ‘‘What Should I
Consider as I Prepare My Comments for
EPA?’’
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone Anthony
Maietta, Environmental Protection
Specialist, at (312) 353–8777 before
visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Anthony Maietta, Environmental
Protection Specialist, Control Strategies
Section, Air Programs Branch (AR–18J),
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Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–8777,
maietta.anthony@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
TKELLEY on DSK3SPTVN1PROD with PROPOSALS
I. What should I consider as I prepare my
comments for EPA?
II. What is the background for the
supplemental proposal?
III. On what specific issues is EPA taking
comments?
A. Effect of the January 4, 2013, DC Circuit
Decision Regarding PM2.5
Implementation Under Subpart 4
1. Background
2. Supplemental Proposal on This Issue
a. Applicable Requirements for Purposes of
Evaluating the Redesignation Request
b. Subpart 4 Requirements and Ohio’s
Redesignation Request
c. Subpart 4 and Control of PM2.5
Precursors
d. Maintenance Plan and Evaluation of
Precursors
B. Ammonia and VOC Comprehensive
Emissions Inventories
IV. Summary of Proposed Actions
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare
my comments for EPA?
When submitting comments,
remember to:
1. Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date, and page number).
2. Follow directions—EPA may ask
you to respond to specific questions or
organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
3. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
4. Describe any assumptions and
provide any technical information and/
or data that you used.
5. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
6. Provide specific examples to
illustrate your concerns, and suggest
alternatives.
7. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
8. Make sure to submit your
comments by the comment period
deadline identified.
II. What is the background for the
supplemental proposal?
On April 16, 2012, the Ohio
Environmental Protection Agency
(OEPA) submitted a request to EPA to
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redesignate the Ohio portion of the
Wheeling, West Virginia-Ohio
nonattainment area (Belmont County,
Ohio) to attainment for the 1997 annual
PM2.5 NAAQS, and for EPA approval of
Ohio’s state implementation plan (SIP)
revision containing an emissions
inventory and a maintenance plan for
the area.
On December 2, 2011, EPA published
a notice of final rulemaking determining
that the air quality in the Wheeling area
has met the 1997 annual PM2.5 standard
(76 FR 75464). On November 30, 2012,
EPA published a proposed rulemaking
determining further that the Ohio
portion of the area has met the
requirements for redesignation under
section 107(d)(3)(E) of the CAA (77 FR
71371). In that rulemaking EPA
proposed several related actions. First,
EPA proposed to approve the request
from OEPA to change the legal
designation of the Ohio portion of the
Wheeling area from nonattainment to
attainment for the 1997 annual PM2.5
NAAQS. EPA also proposed to approve
Ohio’s PM2.5 maintenance plan for the
Ohio portion of the Wheeling area as a
revision to the Ohio SIP because the
plan meets the requirements of section
175A of the CAA. In addition, EPA
proposed to approve 2006 emissions
inventories for primary PM2.5, NOX, and
SO2, documented in Ohio’s April 16,
2012, PM2.5 redesignation request
submittal as satisfying the requirement
in section 172(c)(3) of the CAA for a
comprehensive, current emission
inventory. Finally, EPA proposed a
finding of insignificance of motor
vehicle emissions for the Ohio portion
of the Wheeling area (such that no
motor vehicle emission budgets for
emissions of directly emitted PM2.5 and
NOX are necessary). EPA did not receive
adverse comments on the proposed
rulemaking.
Today, EPA is issuing a supplement
to its November 30, 2012, proposed
rulemaking. This supplemental proposal
addresses two separate issues which
affect the proposed redesignation and
which have arisen since the issuance of
the proposal: A recent decision of the
D.C. Circuit, and Ohio’s supplemental
submission of comprehensive ammonia
and VOC emissions inventories.
On January 4, 2013, in Natural
Resources Defense Council v. EPA, the
D.C. Circuit remanded to EPA the ‘‘Final
Clean Air Fine Particle Implementation
Rule’’ (72 FR 20586, April 25, 2007) and
the ‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5)’’ final rule (73 FR 28321, May
16, 2008). 706 F.3d 428 (D.C. Cir. 2013).
In a supplemental submission to EPA on
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April 30, 2013, Ohio submitted 2007/
2008 ammonia and VOC emissions
inventories to supplement the emissions
inventories that had previously been
submitted.
III. On what specific issues is EPA
taking comments?
A. Effect of the January 4, 2013, D.C.
Circuit Decision Regarding PM2.5
Implementation Under Subpart 4
1. Background
As discussed above, on January 4,
2013, in Natural Resources Defense
Council v. EPA, the D.C. Circuit
remanded to EPA the ‘‘Final Clean Air
Fine Particle Implementation Rule’’ (72
FR 20586, April 25, 2007) and the
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5)’’ final rule (73 FR 28321, May
16, 2008) (collectively, ‘‘1997 PM2.5
Implementation Rule’’). 706 F.3d 428
(D.C. Cir. 2013). The Court found that
EPA erred in implementing the 1997
PM2.5 NAAQS pursuant to the general
implementation provisions of subpart 1
of part D of title I of the CAA, rather
than the particulate-matter-specific
provisions of subpart 4 of part D of title
I.
2. Supplemental Proposal on This Issue
In this portion of EPA’s supplemental
proposal, EPA is soliciting comment on
the limited issue of the effect of the
Court’s January 4, 2013, ruling on the
proposed redesignation of the Ohio
portion of the Wheeling area to
attainment for the 1997 annual PM2.5
standard. As explained below, EPA is
proposing to determine that the Court’s
January 4, 2013, decision does not
prevent EPA from redesignating the
Ohio portion of the Wheeling area to
attainment, because even in light of the
Court’s decision, redesignation for this
area is appropriate under the CAA and
EPA’s longstanding interpretations of
the CAA’s provisions regarding
redesignation. First, EPA explains its
longstanding interpretation that
requirements that are imposed, or that
become due, after a complete
redesignation request is submitted for
an area that is attaining the standard, are
not applicable for purposes of
evaluating a redesignation request.
Second, EPA shows that, even if EPA
applies the subpart 4 requirements to
the Ohio portion of the Wheeling area
redesignation request and disregards the
provisions of its 1997 PM2.5
implementation rule recently remanded
by the Court, the state’s request for
redesignation of this area still qualifies
for approval. EPA’s discussion takes
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into account the effect of the Court’s
ruling on the area’s maintenance plan,
which EPA views as approvable when
subpart 4 requirements are considered.
a. Applicable Requirements for
Purposes of Evaluating the
Redesignation Request
With respect to the 1997 PM2.5
Implementation Rule, the Court’s
January 4, 2013, ruling rejected EPA’s
reasons for implementing the PM2.5
NAAQS solely in accordance with the
provisions of subpart 1, and remanded
that matter to EPA, so that it could
address implementation of the 1997
PM2.5 NAAQS under subpart 4 of part D
of the CAA, in addition to subpart 1. For
the purposes of evaluating Ohio’s
redesignation request for the Ohio
portion of the Wheeling area, to the
extent that implementation under
subpart 4 would impose additional
requirements for areas designated
nonattainment, EPA believes that those
requirements are not ‘‘applicable’’ for
the purposes of CAA section
107(d)(3)(E), and thus EPA is not
required to consider subpart 4
requirements with respect to the Ohio
portion of the Wheeling area
redesignation. Under its longstanding
interpretation of the CAA, EPA has
interpreted section 107(d)(3)(E) to mean,
as a threshold matter, that the part D
provisions which are ‘‘applicable’’ and
which must be approved in order for
EPA to redesignate an area include only
those which came due prior to a state’s
submittal of a complete redesignation
request. See ‘‘Procedures for Processing
Requests to Redesignate Areas to
Attainment,’’ Memorandum from John
Calcagni, Director, Air Quality
Management Division, September 4,
1992 (Calcagni memorandum). See also
‘‘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 Shapiro, Acting Assistant
Administrator, Air and Radiation,
September 17, 1993 (Shapiro
memorandum); Final Redesignation of
Detroit-Ann Arbor, (60 FR 12459,
12465–66, March 7, 1995); Final
Redesignation of St. Louis, Missouri, (68
FR 25418, 25424–27, May 12, 2003);
Sierra Club v. EPA, 375 F.3d 537, 541
(7th Cir. 2004) (upholding EPA’s
redesignation rulemaking applying this
interpretation and expressly rejecting
Sierra Club’s view that the meaning of
‘‘applicable’’ under the statute is
‘‘whatever should have been in the plan
at the time of attainment rather than
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whatever actually was in the plan and
already implemented or due at the time
of attainment’’).1 In this case, at the time
that Ohio submitted its redesignation
request, requirements under subpart 4
were not due, and indeed, were not yet
known to apply.
EPA’s view that, for purposes of
evaluating the Ohio portion of the
Wheeling area’s redesignation, the
subpart 4 requirements were not due at
the time Ohio submitted the
redesignation request is in keeping with
the EPA’s interpretation of subpart 2
requirements for subpart 1 ozone areas
redesignated subsequent to the D.C.
Circuit’s decision in South Coast Air
Quality Mgmt. Dist. v. EPA, 472 F.3d
882 (D.C. Cir. 2006). In South Coast, the
Court found that EPA was not permitted
to implement the 1997 8-hour ozone
standard solely under subpart 1, and
held that EPA was required under the
statute to implement the standard under
the ozone-specific requirements of
subpart 2 as well. Subsequent to the
South Coast decision, in evaluating and
acting upon redesignation requests for
the 1997 8-hour ozone standard that
were submitted to EPA for areas under
subpart 1, EPA applied its longstanding
interpretation of the CAA that
‘‘applicable requirements’’, for purposes
of evaluating a redesignation, are those
that had been due at the time the
redesignation request was submitted.
See, e.g., Proposed Redesignation of
Manitowoc County and Door County
Nonattainment Areas (75 FR 22047,
22050, April 27, 2010). In those actions,
EPA therefore did not consider subpart
2 requirements to be ‘‘applicable’’ for
the purposes of evaluating whether the
area should be redesignated under
section 107(d)(3)(E).
EPA’s interpretation derives from the
provisions of CAA section 107(d)(3).
Section 107(d)(3)(E)(v) states that, for an
area to be redesignated, a state must
meet ‘‘all requirements ‘applicable’ to
the area under section 110 and part D’’.
Section 107(d)(3)(E)(ii) provides that the
EPA must have fully approved the
‘‘applicable’’ SIP for the area seeking
redesignation. These two sections read
together support EPA’s interpretation of
‘‘applicable’’ as only those requirements
that came due prior to submission of a
complete redesignation request. First,
holding states to an ongoing obligation
to adopt new CAA requirements that
arose after the state submitted its
redesignation request, in order to be
1 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.
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38249
redesignated, would make it
problematic or impossible for EPA to act
on redesignation requests in accordance
with the 18-month deadline Congress
set for EPA action in section
107(d)(3)(D). If ‘‘applicable
requirements’’ were interpreted to be a
continuing flow of requirements with no
reasonable limitation, states, after
submitting a redesignation request,
would be forced continuously to make
additional SIP submissions that in turn
would require EPA to undertake further
notice-and-comment rulemaking actions
to act on those submissions. This would
create a regime of unceasing rulemaking
that would delay action on the
redesignation request beyond the 18month timeframe provided by the Act
for this purpose.
Second, a fundamental premise for
redesignating a nonattainment area to
attainment is that the area has attained
the relevant NAAQS due to emission
reductions from existing controls. Thus,
an area for which a redesignation
request has been submitted would have
already attained the NAAQS as a result
of satisfying statutory requirements that
came due prior to the submission of the
request. Absent a showing that
unadopted and unimplemented
requirements are necessary for future
maintenance, it is reasonable to view
the requirements applicable for
purposes of evaluating the redesignation
request as including only those SIP
requirements that have already come
due. These are the requirements that led
to attainment of the NAAQS. To require,
for redesignation approval, that a state
also satisfy additional SIP requirements
coming due after the state submits its
complete redesignation request, and
while EPA is reviewing it, would
compel the state to do more than is
necessary to attain the NAAQS, without
a showing that the additional
requirements are necessary for
maintenance.
In the context of the Ohio portion of
the Wheeling area’s redesignation, the
timing and nature of the Court’s January
4, 2013, decision in NRDC v. EPA
compound the consequences of
imposing requirements that come due
after the redesignation request is
submitted. While Ohio submitted its
redesignation request on April 16, 2012,
and EPA proposed to approve it on
November 30, 2012, the Court did not
issue its decision remanding EPA’s 1997
PM2.5 implementation rule concerning
the applicability of the provisions of
subpart 4 until January 4, 2013.
To require Ohio’s fully-completed and
long-pending redesignation request to
comply now with requirements of
subpart 4 would be to give retroactive
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effect to such requirements when the
state had no notice that it was required
to meet them. The DC Circuit
recognized the inequity of this type of
retroactive impact in Sierra Club v.
Whitman, 285 F.3d 63 (D.C. Cir. 2002),2
where it upheld the District Court’s
ruling refusing to make retroactive
EPA’s determination that the St. Louis
area did not meet its attainment
deadline. In that case, petitioners urged
the Court to make EPA’s nonattainment
determination effective as of the date
that the statute required, rather than the
later date on which EPA actually made
the determination. The Court rejected
this view, stating that applying it
‘‘would likely impose large costs on
States, which would face fines and suits
for not implementing air pollution
prevention plans . . . even though they
were not on notice at the time.’’ Id. at
68. Similarly, it would be unreasonable
to penalize Ohio by rejecting its
redesignation request for an area that is
already attaining the 1997 PM2.5
standard and that met all applicable
requirements known to be in effect at
the time of the request. For EPA now to
reject the redesignation request solely
because the state did not expressly
address subpart 4 requirements of
which it had no notice, would inflict the
same unfairness condemned by the
Court in Sierra Club v. Whitman.
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b. Subpart 4 Requirements and Ohio’s
Redesignation Request
Even if EPA were to take the view that
the Court’s January 4, 2013, decision
requires that, in the context of pending
redesignations, subpart 4 requirements
were due and in effect at the time the
state submitted its redesignation
request, EPA proposes to determine that
the Ohio portion of the Wheeling area
still qualifies for redesignation to
attainment. As explained below, EPA
believes that the redesignation request
for the Ohio portion of the Wheeling
area, though not expressed in terms of
subpart 4 requirements, substantively
meets the requirements of that subpart
for purposes of redesignating the area to
attainment.
With respect to evaluating the
relevant substantive requirements of
subpart 4 for purposes of redesignating
the Ohio portion of the Wheeling area,
EPA notes that subpart 4 incorporates
2 Sierra Club v. Whitman was discussed and
distinguished in a recent D.C. Circuit decision that
addressed retroactivity in a quite different context,
where, unlike the situation here, EPA sought to give
its regulations retroactive effect. National
Petrochemical and Refiners Ass’n v. EPA. 630 F.3d
145, 163 (D.C. Cir. 2010), rehearing denied 643 F.3d
958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571
(2011).
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components of subpart 1 of part D,
which contains general air quality
planning requirements for areas
designated as nonattainment. See
Section 172(c). Subpart 4 itself contains
specific planning and scheduling
requirements for PM10 3 nonattainment
areas, and under the Court’s January 4,
2013, decision in NRDC v. EPA, these
same statutory requirements also apply
for PM2.5 nonattainment areas. EPA has
longstanding general guidance that
interprets the 1990 amendments to the
CAA, making recommendations to states
for meeting the statutory requirements
for SIPs for nonattainment areas. See,
‘‘State Implementation Plans; General
Preamble for the Implementation of
Title I of the Clear Air Act Amendments
of 1990,’’ 57 FR 13498 (April 16, 1992)
(the ‘‘General Preamble’’). In the General
Preamble, EPA discussed the
relationship of subpart 1 and subpart 4
SIP requirements, and pointed out that
subpart 1 requirements were to an
extent ‘‘subsumed by, or integrally
related to, the more specific PM–10
requirements.’’ 57 FR 13538 (April 16,
1992). EPA’s previously published
proposal for this redesignation action
addressed how the Wheeling area meets
the requirements for redesignation
under subpart 1. These subpart 1
requirements include, among other
things, provisions for attainment
demonstrations, reasonably available
control measures (RACM), reasonable
further progress (RFP), emissions
inventories, and contingency measures.
For the purposes of this redesignation,
in order to identify any additional
requirements which would apply under
subpart 4, we are considering the Ohio
portion of the Wheeling area to be a
‘‘moderate’’ PM2.5 nonattainment area.
Under section 188 of the CAA, all areas
designated nonattainment areas under
subpart 4 would initially be classified
by operation of law as ‘‘moderate’’
nonattainment areas, and would remain
moderate nonattainment areas unless
and until EPA reclassifies the area as a
‘‘serious’’ nonattainment area.4
Accordingly, EPA believes that it is
appropriate to limit the evaluation of
the potential impact of subpart 4
requirements to those that would be
applicable to moderate nonattainment
areas. Sections 189(a) and (c) of subpart
4 apply to moderate nonattainment
areas and include the following: (1) An
approved permit program for
construction of new and modified major
stationary sources (section 189(a)(1)(A));
(2) an attainment demonstration (section
189(a)(1)(B)); (3) provisions for RACM
(section 189(a)(1)(C)); and (4)
quantitative milestones demonstrating
RFP toward attainment by the
applicable attainment date (section
189(c)).
The permit requirements of subpart 4,
as contained in section 189(a)(1)(A),
refer to and apply the subpart 1 permit
provisions requirements of sections 172
and 173 to PM10, without adding to
them. Consequently, EPA believes that
section 189(a)(1)(A) does not itself
impose for redesignation purposes any
additional requirements for moderate
areas beyond those contained in subpart
1.5 In any event, in the context of
redesignation, EPA has long relied on
the interpretation that a fully approved
nonattainment new source review
program is not considered an applicable
requirement for redesignation, provided
the area can maintain the standard with
a prevention of significant deterioration
(PSD) program after redesignation. A
detailed rationale for this view is
described in a memorandum from Mary
Nichols, Assistant Administrator for Air
and Radiation, dated October 14, 1994,
entitled, ‘‘Part D New Source Review
Requirements for Areas Requesting
Redesignation to Attainment.’’ See also
rulemakings for Detroit, Michigan (60
FR 12467–12468, March 7, 1995);
Cleveland-Akron-Lorain, Ohio (61 FR
20458, 20469–20470, May 7, 1996);
Louisville, Kentucky (66 FR 53665,
October 23, 2001); and Grand Rapids,
Michigan (61 FR 31834–31837, June 21,
1996).
With respect to the specific
attainment planning requirements under
subpart 4,6 when EPA evaluates a
redesignation request under either
subpart 1 and/or 4, any area that is
attaining the PM2.5 standard is viewed
as having satisfied the attainment
planning requirements for these
subparts. For redesignations, EPA has
for many years interpreted attainmentlinked requirements as not applicable
for areas attaining the standard. In the
General Preamble, EPA stated that:
3 PM
10 refers to particulates nominally 10
micrometers in diameter or smaller.
4 Section 188(a) also provides that EPA publish a
notice announcing the classification of each area
under subpart 4.
5 The potential effect of section 189(e) on section
189(a)(1)(A) for purposes of evaluating this
redesignation is discussed below.
6 I.e., attainment demonstration, RFP, RACM,
milestone requirements, contingency measures.
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The requirements for RFP will not apply in
evaluating a request for redesignation to
attainment since, at a minimum, the air
quality data for the area must show that the
area has already attained. Showing that the
State will make RFP towards attainment will,
therefore, have no meaning at that point.
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‘‘General Preamble for the Interpretation
of Title I of the Clean Air Act
Amendments of 1990’’; (57 FR 13498,
13564, April 16, 1992).
The General Preamble also explained
that
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[t]he section 172(c)(9) requirements are
directed at ensuring RFP and attainment by
the applicable date. These requirements no
longer apply when an area has attained the
standard and is eligible for redesignation.
Furthermore, section 175A for maintenance
plans . . . provides specific requirements for
contingency measures that effectively
supersede the requirements of section
172(c)(9) for these areas.
Id.
EPA similarly stated in its 1992
Calcagni memorandum that, ‘‘The
requirements for reasonable further
progress and other measures needed for
attainment will not apply for
redesignations because they only have
meaning for areas not attaining the
standard.’’
It is evident that even if we were to
consider the Court’s January 4, 2013,
decision in NRDC v. EPA to mean that
attainment-related requirements specific
to subpart 4 should be imposed
retroactively 7 and thus are now past
due, those requirements do not apply to
an area that is attaining the 1997 PM2.5
standard, for the purpose of evaluating
a pending request to redesignate the
area to attainment. EPA has consistently
enunciated this interpretation of
applicable requirements under section
107(d)(3)(E) since the General Preamble
was published more than twenty years
ago. Courts have recognized the scope of
EPA’s authority to interpret ‘‘applicable
requirements’’ in the redesignation
context. See Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004).
Moreover, even outside the context of
redesignations, EPA has viewed the
obligations to submit attainment-related
SIP planning requirements of subpart 4
as inapplicable for areas that EPA
determines are attaining the standard.
EPA’s prior ‘‘Clean Data Policy’’
rulemakings for the PM10 NAAQS, also
governed by the requirements of subpart
4, explain EPA’s reasoning. They
describe the effects of a determination of
attainment on the attainment-related SIP
planning requirements of subpart 4. See
‘‘Determination of Attainment for Coso
Junction Nonattainment Area,’’ (75 FR
27944, May 19, 2010). See also Coso
Junction proposed PM10 redesignation,
(75 FR 36023, 36027, June 24, 2010);
7 As EPA has explained above, we do not believe
that the Court’s January 4, 2013, decision should be
interpreted so as to impose these requirements on
the states retroactively. Sierra Club v. Whitman,
supra.
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Proposed and Final Determinations of
Attainment for San Joaquin
Nonattainment Area (71 FR 40952,
40954–55, July 19, 2006; and 71 FR
63641, 63643–47 October 30, 2006). In
short, EPA in this context has also long
concluded that to require states to meet
superfluous SIP planning requirements
is not necessary and not required by the
CAA, so long as those areas continue to
attain the relevant NAAQS.
In its November 30, 2012, proposal for
this action, EPA proposed to determine
that the Ohio portion of the Wheeling
area has attained the 1997 PM2.5
standard and therefore meets the
attainment–related plan requirements of
subpart 1. Under its longstanding
interpretation, EPA is proposing to
determine here that the area also meets
the attainment-related plan
requirements of subpart 4.
Thus, EPA is proposing to conclude
that the requirements to submit an
attainment demonstration under
189(a)(1)(B), a RACM determination
under section 172(c) and section
189(a)(1)(c), and a RFP demonstration
under 189(c)(1) are satisfied for
purposes of evaluating the redesignation
request.
c. Subpart 4 and Control of PM2.5
Precursors
The D.C. Circuit, in NRDC v. EPA,
remanded to EPA the two rules at issue
in the case with instructions to EPA to
re-promulgate them consistent with the
requirements of subpart 4. The Court’s
opinion raises the issue of the
appropriate approach to addressing
PM2.5 precursors in this and future EPA
actions. While past implementation of
subpart 4 for PM10 has allowed for
control of PM10 precursors such as NOX
from major stationary, mobile, and area
sources in order to attain the standard
as expeditiously as practicable, CAA
section 189(e) specifically provides that
control requirements for major
stationary sources of direct PM10 shall
also apply to PM10 precursors from
those sources, except where EPA
determines that major stationary sources
of such precursors ‘‘do not contribute
significantly to PM10 levels which
exceed the standard in the area.’’
EPA’s 1997 PM2.5 implementation
rule, remanded by the D.C. Circuit,
contained rebuttable presumptions
concerning certain PM2.5 precursors
applicable to attainment plans and
control measures related to those plans.
Specifically, in 40 CFR 51.1002, EPA
provided, among other things, that a
state was ‘‘not required to address VOC
[and ammonia] as . . . PM2.5 attainment
plan precursor[s] and to evaluate
sources of VOC [and ammonia]
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38251
emissions in the State for control
measures.’’ EPA intended these to be
rebuttable presumptions. EPA
established these presumptions at the
time because of uncertainties regarding
the emission inventories for these
pollutants and the effectiveness of
specific control measures in various
regions of the country in reducing PM2.5
concentrations. EPA also left open the
possibility for such regulation of VOC
and ammonia in specific areas where
that was necessary.
The Court in its January 4, 2013,
decision made reference to both section
189(e) and 40 CFR 51. 1002, and stated
that, ‘‘In light of our disposition, we
need not address the petitioners’
challenge to the presumptions in [40
CFR 51.1002] that volatile organic
compounds and ammonia are not PM2.5
precursors, as subpart 4 expressly
governs precursor presumptions.’’
NRDC v. EPA, at 27, n.10.
Elsewhere in the Court’s opinion,
however, the Court observed:
Ammonia is a precursor to fine particulate
matter, making it a precursor to both PM2.5
and PM10. For a PM10 nonattainment area
governed by subpart 4, a precursor is
presumptively regulated. See 42 U.S.C.
§ 7513a(e) [section 189(e)].
Id. at 21, n.7.
For a number of reasons, EPA believes
that the Court’s decision on this aspect
of subpart 4 does not preclude EPA’s
approval of Ohio’s redesignation request
for the 1997 PM2.5 NAAQS. First, while
the Court, citing section 189(e), stated
that ‘‘for a PM10 area governed by
subpart 4, a precursor is ‘presumptively
regulated,’ ’’ the Court expressly
declined to decide the specific
challenge to EPA’s 1997 PM2.5
implementation rule provisions
regarding ammonia and VOC as
precursors. The Court had no occasion
to reach whether and how it was
substantively necessary to regulate any
specific precursor in a particular PM2.5
nonattainment area, and did not address
what might be necessary for purposes of
acting upon a redesignation request.
However, even if EPA takes the view
that the requirements of subpart 4 were
deemed applicable at the time the state
submitted the redesignation request,
and disregards the implementation
rule’s rebuttable presumptions regarding
ammonia and VOC as PM2.5 precursors,
the regulatory consequence would be to
consider the need for regulation of all
precursors from any sources in the area
to demonstrate attainment and to apply
the section 189(e) provisions to major
stationary sources of precursors. In the
case of the Ohio portion of the Wheeling
area, EPA believes that doing so would
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not affect the approvability of the
proposed redesignation of the area for
the 1997 PM2.5 standard. The entire
Wheeling area has attained the standard
without any specific additional controls
of VOC and ammonia emissions from
any sources in the area.
Precursors in subpart 4 are
specifically regulated under the
provisions of section 189(e), which
requires, with important exceptions,
control requirements for major
stationary sources of PM10 precursors.8
Under subpart 1 and EPA’s prior
implementation rule, all major
stationary sources of PM2.5 precursors
were subject to regulation, with the
exception of ammonia and VOC. Thus
we must address here whether
additional controls of ammonia and
VOC from major stationary sources are
required under section 189(e) of subpart
4 in order to redesignate the Ohio
portion of the Wheeling area for the
1997 PM2.5 standard. As explained
below, we do not believe that any
additional controls of ammonia and
VOC are required in the context of this
redesignation.
In the General Preamble, EPA
discusses its approach to implementing
section 189(e). See 57 FR 13538–13542.
With regard to precursor regulation
under section 189(e), the General
Preamble explicitly stated that control
of VOCs under other Act requirements
may suffice to relieve a state from the
need to adopt precursor controls under
section 189(e). 57 FR 13542. EPA in this
supplemental proposal proposes to
determine that the Ohio SIP has met the
provisions of section 189(e) with respect
to ammonia and VOCs as precursors.
This proposed supplemental
determination is based on our findings
that: (1) The Ohio portion of the
Wheeling area contains no major
stationary sources of ammonia, and (2)
existing major stationary sources of VOC
are adequately controlled under other
provisions of the CAA regulating the
ozone NAAQS.9 In the alternative, EPA
proposes to determine that, under the
express exception provisions of section
189(e), and in the context of the
redesignation of the Ohio portion of the
Wheeling area, which is attaining the
8 Under either subpart 1 or subpart 4, for
purposes of demonstrating attainment as
expeditiously as practicable, a state is required to
evaluate all economically and technologically
feasible control measures for direct PM emissions
and precursor emissions, and adopt those measures
that are deemed reasonably available.
9 The Ohio portion of the Wheeling area has
reduced VOC emissions through the
implementation of various control programs
including VOC Reasonably Available Control
Technology regulations and various on-road and
non-road motor vehicle control programs.
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1997 annual PM2.5 standard, at present
ammonia and VOC precursors from
major stationary sources do not
contribute significantly to levels
exceeding the 1997 PM2.5 standard in
the area. See 57 FR 13539–13542.
EPA notes that its 1997 PM2.5
implementation rule provisions in 40
CFR 51.1002 were not directed at
evaluation of PM2.5 precursors in the
context of redesignation, but at SIP
plans and control measures required to
bring a nonattainment area into
attainment of the 1997 PM2.5 NAAQS.
By contrast, redesignation to attainment
primarily requires the area to have
already attained due to permanent and
enforceable emission reductions, and to
demonstrate that controls in place can
continue to maintain the standard.
Thus, even if we regard the Court’s
January 4, 2013, decision as calling for
‘‘presumptive regulation’’ of ammonia
and VOC for PM2.5 under the attainment
planning provisions of subpart 4, those
provisions in and of themselves do not
require additional controls of these
precursors for an area that already
qualifies for redesignation, nor does
EPA believe that requiring Ohio to
address precursors differently than they
have already would result in a
substantively different outcome.
Although, as EPA has emphasized, its
consideration here of precursor
requirements under subpart 4 is in the
context of a redesignation to attainment,
EPA’s existing interpretation of subpart
4 requirements with respect to
precursors in attainment plans for PM10
contemplates that states may develop
attainment plans that regulate only
those precursors that are necessary for
purposes of attainment in the area in
question, i.e., states may determine that
only certain precursors need be
regulated for attainment and control
purposes.10 Courts have upheld this
approach to the requirements of subpart
4 for PM10.11 EPA believes that
application of this approach to PM2.5
precursors under subpart 4 is
reasonable. Because the Wheeling area
has already attained the 1997 PM2.5
NAAQS with its current approach to
regulation of PM2.5 precursors, EPA
believes that it is reasonable to conclude
in the context of this redesignation that
there is no need to revisit the attainment
10 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans for California—San Joaquin
Valley PM–10 Nonattainment Area; Serious Area
Plan for Nonattainment of the 24-Hour and Annual
PM–10 Standards,’’ 69 FR 30006 (May 26, 2004)
(approving a PM10 attainment plan that impose
controls on direct PM10 and NOX emissions and did
not impose controls on SO2, VOC, or ammonia
emissions).
11 See, e.g., Assoc. of Irritated Residents v. EPA
et al., 423 F.3d 989 (9th Cir. 2005).
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control strategy with respect to the
treatment of precursors. Even if the
Court’s decision is construed to impose
an obligation, in evaluating this
redesignation request, to consider
additional precursors under subpart 4, it
would not affect EPA’s approval here of
Ohio’s request for redesignation of the
Ohio portion of the Wheeling area. In
the context of a redesignation, the area
has shown that it has attained the
standard. Moreover, the state has shown
and EPA has proposed to determine that
attainment in this area is due to
permanent and enforceable emissions
reductions on all precursors necessary
to provide for continued attainment. It
follows logically that no further control
of additional precursors is necessary.
Accordingly, EPA does not view the
January 4, 2013, decision of the Court as
precluding redesignation of the Ohio
portion of the Wheeling area to
attainment for the 1997 PM2.5 NAAQS at
this time.
In sum, even if Ohio were required to
address precursors for the Ohio portion
of the Wheeling area under subpart 4
rather than under subpart 1, as
interpreted in EPA’s remanded PM2.5
implementation rule, EPA would still
conclude that the area had met all
applicable requirements for purposes of
redesignation in accordance with
section 107(d)(3(E)(ii) and (v).
d. Maintenance Plan and Evaluation of
Precursors
With regard to the redesignation of
the Ohio portion of the Wheeling area,
in evaluating the effect of the Court’s
remand of EPA’s implementation rule,
which included presumptions against
consideration of VOC and ammonia as
PM2.5 precursors, EPA in this
supplemental proposal is also
considering the impact of the decision
on the maintenance plan required under
sections 175A and 107(d)(3)(E)(iv). To
begin with, EPA notes that the area has
attained the 1997 PM2.5 standard and
that the state has shown that attainment
of that standard is due to permanent and
enforceable emission reductions.
In its prior proposal notice for this
action, EPA proposed to determine that
the state’s maintenance plan shows
continued maintenance of the standard
by tracking the levels of the precursors
whose control brought about attainment
of the 1997 PM2.5 standard in the Ohio
portion of the Wheeling area. EPA
therefore believes that the only
additional consideration related to the
maintenance plan requirements that
results from the Court’s January 4, 2013,
decision is that of assessing the
potential role of VOC and ammonia in
demonstrating continued maintenance
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in this area. As explained below, based
upon documentation provided by the
state and supporting information, EPA
believes that the maintenance plan for
the Ohio portion of the Wheeling area
need not include any additional
emission reductions of VOC or ammonia
in order to provide for continued
maintenance of the standard.
First, as noted above in EPA’s
discussion of section 189(e), VOC
emission levels in this area have
historically been well controlled under
SIP requirements related to ozone and
other pollutants. Second, total ammonia
emissions throughout the Ohio portion
of the Wheeling area are very low,
estimated to be less than 500 tons per
year. See Table 4 below. This amount of
ammonia emissions is especially small
in comparison to the total amounts of
SO2, NOX, and even direct PM2.5
emissions from sources in the area.
Third, as described below, available
information shows that no precursor,
including VOC and ammonia, is
expected to increase over the
maintenance period so as to interfere
with or undermine the state’s
maintenance demonstration.
Ohio’s maintenance plan shows that
emissions of direct PM2.5, SO2, and NOX
are projected to decrease by 212.68 tons
per year (tpy), 31,342.08 tpy, and
2,137.21 tpy, respectively, over the
maintenance period. See Tables 1–3
below. In addition, emissions
inventories used in the regulatory
impact analysis (RIA) for the 2012 PM2.5
NAAQS show that VOC emissions are
projected to decrease by 1,155.91 tpy,
and that ammonia emissions will
decrease by 17.98 tpy, between 2007
and 2020. See Table 4 below. While the
RIA emissions inventories are only
projected out to 2020, there is no reason
to believe that the downward trend of
VOC and ammonia emissions would not
continue through 2022. Given that the
Wheeling area is already attaining the
1997 PM2.5 NAAQS even with the
current level of emissions from sources
38253
in the area, the downward trend of
emissions from VOC and ammonia
inventories would be consistent with
continued attainment of the NAAQS.
Indeed, projected emissions reductions
for the precursors that the state is
addressing for purposes of the 1997
PM2.5 NAAQS indicate that the area
should continue to attain the NAAQS
following the precursor control strategy
that the state has already elected to
pursue. Even if VOC and ammonia
emissions were to increase
unexpectedly between 2020 and 2022,
the overall emissions reductions
projected in direct PM2.5, SO2, and NOX
would be sufficient to offset any
increases. For these reasons, EPA
believes that local emissions of all of the
potential PM2.5 precursors will not
increase to the extent that they will
cause monitored PM2.5 levels to violate
the 1997 PM2.5 standard during the
maintenance period.
TABLE 1—COMPARISON OF 2005, 2008, 2015, AND 2022 DIRECT PM2.5 EMISSION TOTALS BY SOURCE SECTOR (TPY)
FOR THE OHIO PORTION OF THE WHEELING AREA
[Belmont County, Ohio]
Direct PM2.5
Sector
2005
2008
2015
2022
Net change
2005–2022
Point .......................................................................................................
EGU 12 ....................................................................................................
Area .......................................................................................................
Non-road ................................................................................................
On-road 13 ..............................................................................................
3.39
93.85
307.93
33.60
105.74
3.39
69.58
305.38
29.80
88.66
3.94
20.87
297.20
20.84
45.08
4.40
0
289.22
11.89
26.32
1.01
¥93.85
¥18.71
¥21.71
¥79.42
Total ................................................................................................
544.51
496.81
387.93
331.83
¥212.68
TABLE 2—COMPARISON OF 2005, 2008, 2015, AND 2022 SO2 EMISSION TOTALS BY SOURCE SECTOR (TPY) FOR THE
OHIO PORTION OF THE WHEELING AREA
[Belmont County, Ohio]
SO2
Sector
2005
2008
2015
2022
Net change
2005–2022
0.13
37,329.95
93.50
44.82
30.84
0.07
15,126.00
92.24
24.46
9.38
0.10
8,783.33
87.16
8.23
6.72
0.11
6,065.04
82.29
3.51
6.21
¥0.02
¥31,264.91
¥11.21
¥41.31
¥24.63
Total ................................................................................................
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Point .......................................................................................................
EGU .......................................................................................................
Area .......................................................................................................
Non-road ................................................................................................
On-road ..................................................................................................
37,499.24
15,252.15
8,885.54
6,157.16
¥31,342.08
12 Electric
generating units.
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13 Emissions projections for the on-road sector
were generated using the MOVES model.
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TABLE 3—COMPARISON OF 2005, 2008, 2015, AND 2022 NOX EMISSION TOTALS BY SOURCE SECTOR (TPY) FOR THE
OHIO PORTION OF THE WHEELING AREA
[Belmont County, Ohio]
NOX
Sector
Net change
2005–2022
2005
2008
2015
2022
Point .........................................................................................................
EGU .........................................................................................................
Area .........................................................................................................
Non-road ..................................................................................................
On-road ....................................................................................................
22.76
4,149.93
284.66
484.31
3,179.52
20.67
4,167.94
286.90
444.10
2,593.58
20.19
4,477.58
286.77
306.14
1,279.25
18.90
4,738.00
287.15
172.31
587.61
¥3.86
588.07
2.49
¥312
¥2,591.91
Total ..................................................................................................
8,121.18
7,513.19
6,369.93
5,803.97
¥2,137.21
TABLE 4—COMPARISON OF 2007 AND 2020 VOC AND AMMONIA EMISSION TOTALS BY SOURCE SECTOR (TPY) FOR THE
OHIO PORTION OF THE WHEELING AREA
[Belmont County, Ohio] 14
VOC
Ammonia
Sector
2007
Net change
2007–2020
2020
2007
2020
Net change
2007–2020
52.50
777.12
418.70
1,465.35
42.42
51.37
774.54
218.65
513.19
42.42
¥1.13
¥2.58
¥200.05
¥952.16
0
56.94
386.69
0.38
48.10
2.95
56.09
391.03
0.42
26.58
2.95
¥0.85
4.34
0.04
¥21.52
0
Total ..........................................................................
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Point .................................................................................
Area ..................................................................................
Non-road ..........................................................................
On-road ............................................................................
Fires .................................................................................
2,756.08
1,600.17
¥1,155.91
495.05
477.07
¥17.98
In addition, available air quality
modeling analyses show continued
maintenance of the standard during the
maintenance period. The current air
quality design value for the area is 13
micrograms per cubic meter (mg/m3)
(based on 2009–11 air quality data),
which is well below the 1997 annual
PM2.5 NAAQS of 15 mg/m3. Moreover,
the modeling analysis conducted for the
RIA for the 2012 PM2.5 NAAQS
indicates that the design value for this
area is expected to significantly decline
through 2020. In the RIA analysis, the
2020 modeled design value for the
Wheeling area is 8.4 mg/m3. Given that
all precursor emissions are projected to
decrease through 2022, it is reasonable
to conclude that monitored PM2.5 levels
in this area will also continue to
decrease through 2022.
Thus, EPA believes that there is
ample justification to conclude that the
Ohio portion of the Wheeling area
should be redesignated, even taking into
consideration the emissions of other
precursors potentially relevant to PM2.5.
After consideration of the D.C. Circuit’s
January 4, 2013, decision, and for the
reasons set forth in this supplemental
14 These emissions estimates were taken from the
emissions inventories developed for the RIA for the
2012 PM2.5 NAAQS.
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notice, EPA continues to propose
approval of Ohio’s maintenance plan
and its request to redesignate the Ohio
portion of the Wheeling area to
attainment for the 1997 PM2.5 annual
standard.
B. Ammonia and VOC Comprehensive
Emissions Inventories
In this supplemental proposal EPA
also addresses the State of Ohio’s
supplemental submission that provides
additional information concerning
ammonia and VOC emissions in the
Wheeling area in order to meet the
emissions inventory requirement of
CAA section 172(c)(3). Section 172(c)(3)
of the CAA requires states to submit a
comprehensive, accurate, and current
emissions inventory for a nonattainment
area. For purposes of the PM2.5 NAAQS,
this emissions inventory should address
not only direct emissions of PM2.5, but
also emissions of all precursors with the
potential to participate in PM2.5
formation, i.e., SO2, NOX, VOC and
ammonia.
In the November 30, 2012, proposed
rule, EPA proposed to approve the
emissions inventory information for
direct PM2.5, NOX, and SO2 submitted
by OEPA as meeting the emissions
inventory requirement for the Wheeling
area. On April 30, 2013, OEPA
supplemented its submittal with 2007/
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2008 emissions inventories for ammonia
and VOC. The additional emissions
inventory information provided by the
state addresses emissions of VOC and
ammonia from the general source
categories of point sources, area sources,
on-road mobile sources, and non-road
mobile sources. The state-submitted
emissions inventories were based upon
information generated by the Lake
Michigan Air Directors Consortium
(LADCO) in conjunction with its
member states and are presented in
Table 5 below.
LADCO ran the EMS model using data
provided by Ohio to generate point
source emissions estimates. The point
source data was obtained from Ohio’s
source facility emissions reporting.
For area sources, LADCO ran the EMS
model using the 2008 National
Emissions Inventory (NEI) data
provided by Ohio. LADCO followed
Eastern Regional Technical Advisory
Committee (ERTAC) recommendations
on area sources when preparing the
data. Agricultural ammonia emissions
were not taken from NEI; instead
emissions were based on Carnegie
Mellon University’s Ammonia Emission
Inventory for the Continental United
States (CMU). Specifically, the CMU
2002 annual emissions were grown to
reflect 2007 conditions. A process-based
ammonia emissions model developed
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for LADCO was then used to develop
temporal factors to reflect the impact of
average meteorology on livestock
emissions.
Non-road mobile source emissions
were generated using the NMIM2008
emissions model. LADCO also
accounted for three other non-road
categories not covered by the NMIM
model (commercial marine vessels,
aircraft, and railroads). Marine
emissions were based on reports
prepared by Environ entitled ‘‘LADCO
Nonroad Emissions Inventory Project for
Locomotive, Commercial Marine, and
Recreational Marine Emission Sources,
Final Report, December 2004’’ and
‘‘LADCO 2005 Commercial Marine
Emissions, Draft, March 2, 2007.’’
Aircraft emissions were provided by
Ohio and calculated using AP–42
emission factors and landing and takeoff data provided by the Federal
Aviation Administration. Rail emissions
38255
were based on the 2008 inventory
developed by ERTAC.
On-road mobile source emissions
were generated using EPA’s
MOVES2010a emissions model.
EPA notes that the emissions
inventory developed by LADCO is
documented in ‘‘Regional Air Quality
Analyses for Ozone, PM2.5, and Regional
Haze: Base C Emissions Inventory’’
(September 12, 2011).
TABLE 5—WHEELING AREA AMMONIA AND VOC EMISSIONS (tpy) FOR 2007/2008 BY SOURCE SECTOR
Sector
Ammonia
VOC
Point .................................................................................................................................................................................
Area .................................................................................................................................................................................
Non-road ..........................................................................................................................................................................
On-road ............................................................................................................................................................................
54.06
405.94
0.37
52.82
48.68
863.87
430.01
1,376.69
Total ..........................................................................................................................................................................
513.19
2,719.26
EPA has concluded that the 2007/
2008 ammonia and VOC emissions
inventories provided by Ohio are
complete and as accurate as possible
given the input data available for the
relevant source categories. EPA also
believes that these inventories provide
information about VOC and ammonia as
PM2.5 precursors in the context of
evaluating redesignation of the Ohio
portion of the Wheeling area under
subpart 4. Therefore, we are proposing
to approve the ammonia and VOC
emissions inventories submitted by
Ohio, in conjunction with the NOX,
direct PM2.5, and SO2 emissions
inventories that EPA previously
proposed to approve, as fully meeting
the comprehensive inventory
requirement of section 172(c)(3) of the
CAA for the Ohio portion of the
Wheeling area for the 1997 annual PM2.5
standard. Since EPA’s prior proposal
addressed other precursor emissions
inventories, EPA in this supplemental
proposal is seeking comment only with
respect to the additional inventories for
VOC and ammonia that Ohio has
submitted.
TKELLEY on DSK3SPTVN1PROD with PROPOSALS
IV. Summary of Proposed Actions
After fully considering the D.C.
Circuit’s decision in the NRDC v. EPA
on EPA’s 1997 PM2.5 Implementation
rule, EPA in this supplemental notice is
proposing to proceed with approval of
the request to redesignate the Ohio
portion of the Wheeling area to
attainment for the 1997 annual PM2.5
NAAQS and of the associated
maintenance plan. EPA is concluding
that the D.C. Circuit decision regarding
the applicability of the requirements of
subpart 4 of part D of title I of the CAA
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Jkt 229001
does not change the applicable
requirements for redesignation of the
Parkersburg area to attainment of the
1997 PM2.5 NAAQS. In this
supplemental notice, EPA is also
proposing to approve the 2007/2008
ammonia and VOC emissions
inventories as meeting, in conjunction
with the NOX, direct PM2.5 and SO2
inventories that EPA previously
proposed to approve, the
comprehensive emissions inventory
requirements of section 172(c)(3) of the
CAA. EPA is seeking comment only on
the issues raised in its supplemental
proposals, and is not re-opening
comment on other issues addressed in
its prior proposal.
V. Statutory and Executive Order
Reviews
Under the CAA, redesignation of an
area to attainment and the
accompanying approval of a
maintenance plan under section
107(d)(3)(E) are actions that affect the
status of a geographical area and do not
impose any additional regulatory
requirements on sources beyond those
imposed by state law. A redesignation to
attainment does not in and of itself
create any new requirements, but rather
results in the applicability of
requirements contained in the CAA for
areas that have been redesignated to
attainment. Moreover, the Administrator
is required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, these proposed
PO 00000
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Fmt 4702
Sfmt 4702
actions do not impose additional
requirements beyond those imposed by
state law and the CAA. For that reason,
these proposed actions:
• Are not ‘‘significant regulatory
actions’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Do not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
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Federal Register / Vol. 78, No. 123 / Wednesday, June 26, 2013 / Proposed Rules
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule does not
have tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because a
determination of attainment is an action
that affects the status of a geographical
area and does not impose any new
regulatory requirements on tribes,
impact any existing sources of air
pollution on tribal lands, nor impair the
maintenance of ozone national ambient
air quality standards in tribal lands.
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter.
40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: June 13, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013–15295 Filed 6–25–13; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2012–0212; FRL–9827–8]
Approval and Promulgation of Air
Quality Implementation Plans; Ohio;
Redesignation of the Ohio Portion of
the Parkersburg-Marietta Area to
Attainment of the 1997 Annual
Standard for Fine Particulate Matter
Environmental Protection
Agency (EPA).
ACTION: Proposed rule; supplemental.
AGENCY:
EPA is issuing a supplement
to its proposed approval of Ohio’s
request to redesignate the Ohio portion
of the Parkersburg-Marietta, West
Virginia-Ohio, area to attainment for the
1997 annual National Ambient Air
Quality Standards (NAAQS or standard)
for fine particulate matter (PM2.5). This
supplemental proposal revises and
expands the basis for proposing
approval of the state’s request, in light
of developments since EPA issued its
initial proposal on November 30, 2012.
This supplemental proposal addresses
the effects of a January 4, 2013, decision
of the United States Court of Appeals for
the District of Columbia (D.C. Circuit or
Court) to remand to EPA two final rules
TKELLEY on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
16:30 Jun 25, 2013
Jkt 229001
implementing the 1997 PM2.5 standard.
In this supplemental proposal, EPA is
also proposing to approve a supplement
to the emission inventories previously
submitted by Ohio. EPA is proposing
that the inventories for ammonia and
volatile organic compounds (VOC), in
conjunction with the inventories for
nitrogen oxides (NOX), direct PM2.5, and
sulfur dioxide (SO2) that EPA
previously proposed to approve, meet
the comprehensive emissions inventory
requirements of the Clean Air Act (CAA
or Act). EPA is seeking comment only
on the issues raised in its supplemental
proposal, and is not re-opening for
comment other issues raised in its prior
proposal.
DATES: Comments must be received on
or before July 26, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2012–0212, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: Blakley.Pamela@epa.gov.
3. Fax: (312) 692–2450.
4. Mail: Pamela Blakley, Chief,
Control Strategies Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand delivery: Pamela Blakley,
Chief, Control Strategies Section, Air
Programs Branch (AR–18J), U.S.
Environmental Protection Agency, 77
West Jackson Boulevard, 18th floor,
Chicago, Illinois 60604. Such deliveries
are only accepted during the Regional
Office normal hours of operation, and
special arrangements should be made
for deliveries of boxed information. The
Regional Office official hours of
business are Monday through Friday,
8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2012–
0212. 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 email. 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
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov, your
email 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. For additional instructions
on submitting comments, go to Section
I of this document, ‘‘What Should I
Consider as I Prepare my Comments for
EPA?’’
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone Anthony
Maietta, Environmental Protection
Specialist, at (312) 353–8777 before
visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Anthony Maietta, Environmental
Protection Specialist, Control Strategies
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–8777,
maietta.anthony@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What should I consider as I prepare my
comments for EPA?
II. What is the background for the
supplemental proposal?
III. On what specific issues is EPA taking
comments?
A. Effect of the January 4, 2013, D.C.
Circuit Decision Regarding PM2.5
Implementation Under Subpart 4
1. Background
E:\FR\FM\26JNP1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 123 (Wednesday, June 26, 2013)]
[Proposed Rules]
[Pages 38247-38256]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15295]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2012-0338; FRL-9827-6]
Approval and Promulgation of Air Quality Implementation Plans;
Ohio; Redesignation of the Ohio Portion of the Wheeling Area to
Attainment of the 1997 Annual Standard for Fine Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; Supplemental.
-----------------------------------------------------------------------
SUMMARY: EPA is issuing a supplement to its proposed approval of Ohio's
request to redesignate the Ohio portion of the Wheeling, West Virginia-
Ohio, area to attainment for the 1997 annual National Ambient Air
Quality Standards (NAAQS or standard) for fine particulate matter
(PM2.5). This supplemental proposal revises and expands the
basis for proposing approval of the state's request, in light of
developments since EPA issued its initial proposal on November 30,
2012. This supplemental proposal addresses the effects of a January 4,
2013, decision of the United States Court of Appeals for the District
of Columbia (DC Circuit or Court) to remand to EPA two final rules
implementing the 1997 PM2.5 standard. In this supplemental
proposal, EPA is also proposing to approve a supplement to the emission
inventories previously submitted by Ohio. EPA is proposing that the
inventories for ammonia and volatile organic compounds (VOC), in
conjunction with the inventories for nitrogen oxides (NOX),
direct PM2.5, and sulfur dioxide (SO2) that EPA
previously proposed to approve, meet the comprehensive emissions
inventory requirements of the Clean Air Act (CAA or Act). EPA is
seeking comment only on the issues raised in its supplemental proposal,
and is not re-opening for comment other issues raised in its prior
proposal.
DATES: Comments must be received on or before July 26, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2012-0338, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-Mail: Blakley.Pamela@epa.gov.
3. Fax: (312) 692-2450.
4. Mail: Pamela Blakley, Chief, Control Strategies Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand delivery: Pamela Blakley, Chief, Control Strategies
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2012-0338. 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 email. 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 email comment
directly to EPA without going through www.regulations.gov, your email
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. For additional
instructions on submitting comments, go to Section I of this document,
``What Should I Consider as I Prepare My Comments for EPA?''
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Anthony Maietta, Environmental
Protection Specialist, at (312) 353-8777 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Anthony Maietta, Environmental
Protection Specialist, Control Strategies Section, Air Programs Branch
(AR-18J),
[[Page 38248]]
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-8777, maietta.anthony@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What should I consider as I prepare my comments for EPA?
II. What is the background for the supplemental proposal?
III. On what specific issues is EPA taking comments?
A. Effect of the January 4, 2013, DC Circuit Decision Regarding
PM2.5 Implementation Under Subpart 4
1. Background
2. Supplemental Proposal on This Issue
a. Applicable Requirements for Purposes of Evaluating the
Redesignation Request
b. Subpart 4 Requirements and Ohio's Redesignation Request
c. Subpart 4 and Control of PM2.5 Precursors
d. Maintenance Plan and Evaluation of Precursors
B. Ammonia and VOC Comprehensive Emissions Inventories
IV. Summary of Proposed Actions
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What is the background for the supplemental proposal?
On April 16, 2012, the Ohio Environmental Protection Agency (OEPA)
submitted a request to EPA to redesignate the Ohio portion of the
Wheeling, West Virginia-Ohio nonattainment area (Belmont County, Ohio)
to attainment for the 1997 annual PM2.5 NAAQS, and for EPA
approval of Ohio's state implementation plan (SIP) revision containing
an emissions inventory and a maintenance plan for the area.
On December 2, 2011, EPA published a notice of final rulemaking
determining that the air quality in the Wheeling area has met the 1997
annual PM2.5 standard (76 FR 75464). On November 30, 2012,
EPA published a proposed rulemaking determining further that the Ohio
portion of the area has met the requirements for redesignation under
section 107(d)(3)(E) of the CAA (77 FR 71371). In that rulemaking EPA
proposed several related actions. First, EPA proposed to approve the
request from OEPA to change the legal designation of the Ohio portion
of the Wheeling area from nonattainment to attainment for the 1997
annual PM2.5 NAAQS. EPA also proposed to approve Ohio's
PM2.5 maintenance plan for the Ohio portion of the Wheeling
area as a revision to the Ohio SIP because the plan meets the
requirements of section 175A of the CAA. In addition, EPA proposed to
approve 2006 emissions inventories for primary PM2.5,
NOX, and SO2, documented in Ohio's April 16,
2012, PM2.5 redesignation request submittal as satisfying
the requirement in section 172(c)(3) of the CAA for a comprehensive,
current emission inventory. Finally, EPA proposed a finding of
insignificance of motor vehicle emissions for the Ohio portion of the
Wheeling area (such that no motor vehicle emission budgets for
emissions of directly emitted PM2.5 and NOX are
necessary). EPA did not receive adverse comments on the proposed
rulemaking.
Today, EPA is issuing a supplement to its November 30, 2012,
proposed rulemaking. This supplemental proposal addresses two separate
issues which affect the proposed redesignation and which have arisen
since the issuance of the proposal: A recent decision of the D.C.
Circuit, and Ohio's supplemental submission of comprehensive ammonia
and VOC emissions inventories.
On January 4, 2013, in Natural Resources Defense Council v. EPA,
the D.C. Circuit remanded to EPA the ``Final Clean Air Fine Particle
Implementation Rule'' (72 FR 20586, April 25, 2007) and the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR
28321, May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013). In a supplemental
submission to EPA on April 30, 2013, Ohio submitted 2007/2008 ammonia
and VOC emissions inventories to supplement the emissions inventories
that had previously been submitted.
III. On what specific issues is EPA taking comments?
A. Effect of the January 4, 2013, D.C. Circuit Decision Regarding
PM2.5 Implementation Under Subpart 4
1. Background
As discussed above, on January 4, 2013, in Natural Resources
Defense Council v. EPA, the D.C. Circuit remanded to EPA the ``Final
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25,
2007) and the ``Implementation of the New Source Review (NSR) Program
for Particulate Matter Less than 2.5 Micrometers (PM2.5)''
final rule (73 FR 28321, May 16, 2008) (collectively, ``1997
PM2.5 Implementation Rule''). 706 F.3d 428 (D.C. Cir. 2013).
The Court found that EPA erred in implementing the 1997
PM2.5 NAAQS pursuant to the general implementation
provisions of subpart 1 of part D of title I of the CAA, rather than
the particulate-matter-specific provisions of subpart 4 of part D of
title I.
2. Supplemental Proposal on This Issue
In this portion of EPA's supplemental proposal, EPA is soliciting
comment on the limited issue of the effect of the Court's January 4,
2013, ruling on the proposed redesignation of the Ohio portion of the
Wheeling area to attainment for the 1997 annual PM2.5
standard. As explained below, EPA is proposing to determine that the
Court's January 4, 2013, decision does not prevent EPA from
redesignating the Ohio portion of the Wheeling area to attainment,
because even in light of the Court's decision, redesignation for this
area is appropriate under the CAA and EPA's longstanding
interpretations of the CAA's provisions regarding redesignation. First,
EPA explains its longstanding interpretation that requirements that are
imposed, or that become due, after a complete redesignation request is
submitted for an area that is attaining the standard, are not
applicable for purposes of evaluating a redesignation request. Second,
EPA shows that, even if EPA applies the subpart 4 requirements to the
Ohio portion of the Wheeling area redesignation request and disregards
the provisions of its 1997 PM2.5 implementation rule
recently remanded by the Court, the state's request for redesignation
of this area still qualifies for approval. EPA's discussion takes
[[Page 38249]]
into account the effect of the Court's ruling on the area's maintenance
plan, which EPA views as approvable when subpart 4 requirements are
considered.
a. Applicable Requirements for Purposes of Evaluating the Redesignation
Request
With respect to the 1997 PM2.5 Implementation Rule, the
Court's January 4, 2013, ruling rejected EPA's reasons for implementing
the PM2.5 NAAQS solely in accordance with the provisions of
subpart 1, and remanded that matter to EPA, so that it could address
implementation of the 1997 PM2.5 NAAQS under subpart 4 of
part D of the CAA, in addition to subpart 1. For the purposes of
evaluating Ohio's redesignation request for the Ohio portion of the
Wheeling area, to the extent that implementation under subpart 4 would
impose additional requirements for areas designated nonattainment, EPA
believes that those requirements are not ``applicable'' for the
purposes of CAA section 107(d)(3)(E), and thus EPA is not required to
consider subpart 4 requirements with respect to the Ohio portion of the
Wheeling area redesignation. Under its longstanding interpretation of
the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a
threshold matter, that the part D provisions which are ``applicable''
and which must be approved in order for EPA to redesignate an area
include only those which came due prior to a state's submittal of a
complete redesignation request. See ``Procedures for Processing
Requests to Redesignate Areas to Attainment,'' Memorandum from John
Calcagni, Director, Air Quality Management Division, September 4, 1992
(Calcagni memorandum). See also ``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 Shapiro, Acting Assistant Administrator, Air and
Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation
of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final
Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12,
2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding
EPA's redesignation rulemaking applying this interpretation and
expressly rejecting Sierra Club's view that the meaning of
``applicable'' under the statute is ``whatever should have been in the
plan at the time of attainment rather than whatever actually was in the
plan and already implemented or due at the time of attainment'').\1\ In
this case, at the time that Ohio submitted its redesignation request,
requirements under subpart 4 were not due, and indeed, were not yet
known to apply.
---------------------------------------------------------------------------
\1\ 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.
---------------------------------------------------------------------------
EPA's view that, for purposes of evaluating the Ohio portion of the
Wheeling area's redesignation, the subpart 4 requirements were not due
at the time Ohio submitted the redesignation request is in keeping with
the EPA's interpretation of subpart 2 requirements for subpart 1 ozone
areas redesignated subsequent to the D.C. Circuit's decision in South
Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In
South Coast, the Court found that EPA was not permitted to implement
the 1997 8-hour ozone standard solely under subpart 1, and held that
EPA was required under the statute to implement the standard under the
ozone-specific requirements of subpart 2 as well. Subsequent to the
South Coast decision, in evaluating and acting upon redesignation
requests for the 1997 8-hour ozone standard that were submitted to EPA
for areas under subpart 1, EPA applied its longstanding interpretation
of the CAA that ``applicable requirements'', for purposes of evaluating
a redesignation, are those that had been due at the time the
redesignation request was submitted. See, e.g., Proposed Redesignation
of Manitowoc County and Door County Nonattainment Areas (75 FR 22047,
22050, April 27, 2010). In those actions, EPA therefore did not
consider subpart 2 requirements to be ``applicable'' for the purposes
of evaluating whether the area should be redesignated under section
107(d)(3)(E).
EPA's interpretation derives from the provisions of CAA section
107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be
redesignated, a state must meet ``all requirements `applicable' to the
area under section 110 and part D''. Section 107(d)(3)(E)(ii) provides
that the EPA must have fully approved the ``applicable'' SIP for the
area seeking redesignation. These two sections read together support
EPA's interpretation of ``applicable'' as only those requirements that
came due prior to submission of a complete redesignation request.
First, holding states to an ongoing obligation to adopt new CAA
requirements that arose after the state submitted its redesignation
request, in order to be redesignated, would make it problematic or
impossible for EPA to act on redesignation requests in accordance with
the 18-month deadline Congress set for EPA action in section
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a
continuing flow of requirements with no reasonable limitation, states,
after submitting a redesignation request, would be forced continuously
to make additional SIP submissions that in turn would require EPA to
undertake further notice-and-comment rulemaking actions to act on those
submissions. This would create a regime of unceasing rulemaking that
would delay action on the redesignation request beyond the 18-month
timeframe provided by the Act for this purpose.
Second, a fundamental premise for redesignating a nonattainment
area to attainment is that the area has attained the relevant NAAQS due
to emission reductions from existing controls. Thus, an area for which
a redesignation request has been submitted would have already attained
the NAAQS as a result of satisfying statutory requirements that came
due prior to the submission of the request. Absent a showing that
unadopted and unimplemented requirements are necessary for future
maintenance, it is reasonable to view the requirements applicable for
purposes of evaluating the redesignation request as including only
those SIP requirements that have already come due. These are the
requirements that led to attainment of the NAAQS. To require, for
redesignation approval, that a state also satisfy additional SIP
requirements coming due after the state submits its complete
redesignation request, and while EPA is reviewing it, would compel the
state to do more than is necessary to attain the NAAQS, without a
showing that the additional requirements are necessary for maintenance.
In the context of the Ohio portion of the Wheeling area's
redesignation, the timing and nature of the Court's January 4, 2013,
decision in NRDC v. EPA compound the consequences of imposing
requirements that come due after the redesignation request is
submitted. While Ohio submitted its redesignation request on April 16,
2012, and EPA proposed to approve it on November 30, 2012, the Court
did not issue its decision remanding EPA's 1997 PM2.5
implementation rule concerning the applicability of the provisions of
subpart 4 until January 4, 2013.
To require Ohio's fully-completed and long-pending redesignation
request to comply now with requirements of subpart 4 would be to give
retroactive
[[Page 38250]]
effect to such requirements when the state had no notice that it was
required to meet them. The DC Circuit recognized the inequity of this
type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C.
Cir. 2002),\2\ where it upheld the District Court's ruling refusing to
make retroactive EPA's determination that the St. Louis area did not
meet its attainment deadline. In that case, petitioners urged the Court
to make EPA's nonattainment determination effective as of the date that
the statute required, rather than the later date on which EPA actually
made the determination. The Court rejected this view, stating that
applying it ``would likely impose large costs on States, which would
face fines and suits for not implementing air pollution prevention
plans . . . even though they were not on notice at the time.'' Id. at
68. Similarly, it would be unreasonable to penalize Ohio by rejecting
its redesignation request for an area that is already attaining the
1997 PM2.5 standard and that met all applicable requirements
known to be in effect at the time of the request. For EPA now to reject
the redesignation request solely because the state did not expressly
address subpart 4 requirements of which it had no notice, would inflict
the same unfairness condemned by the Court in Sierra Club v. Whitman.
---------------------------------------------------------------------------
\2\ Sierra Club v. Whitman was discussed and distinguished in a
recent D.C. Circuit decision that addressed retroactivity in a quite
different context, where, unlike the situation here, EPA sought to
give its regulations retroactive effect. National Petrochemical and
Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing
denied 643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571
(2011).
---------------------------------------------------------------------------
b. Subpart 4 Requirements and Ohio's Redesignation Request
Even if EPA were to take the view that the Court's January 4, 2013,
decision requires that, in the context of pending redesignations,
subpart 4 requirements were due and in effect at the time the state
submitted its redesignation request, EPA proposes to determine that the
Ohio portion of the Wheeling area still qualifies for redesignation to
attainment. As explained below, EPA believes that the redesignation
request for the Ohio portion of the Wheeling area, though not expressed
in terms of subpart 4 requirements, substantively meets the
requirements of that subpart for purposes of redesignating the area to
attainment.
With respect to evaluating the relevant substantive requirements of
subpart 4 for purposes of redesignating the Ohio portion of the
Wheeling area, EPA notes that subpart 4 incorporates components of
subpart 1 of part D, which contains general air quality planning
requirements for areas designated as nonattainment. See Section 172(c).
Subpart 4 itself contains specific planning and scheduling requirements
for PM10 \3\ nonattainment areas, and under the Court's
January 4, 2013, decision in NRDC v. EPA, these same statutory
requirements also apply for PM2.5 nonattainment areas. EPA
has longstanding general guidance that interprets the 1990 amendments
to the CAA, making recommendations to states for meeting the statutory
requirements for SIPs for nonattainment areas. See, ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the Clear Air Act Amendments of 1990,'' 57 FR 13498 (April 16,
1992) (the ``General Preamble''). In the General Preamble, EPA
discussed the relationship of subpart 1 and subpart 4 SIP requirements,
and pointed out that subpart 1 requirements were to an extent
``subsumed by, or integrally related to, the more specific PM-10
requirements.'' 57 FR 13538 (April 16, 1992). EPA's previously
published proposal for this redesignation action addressed how the
Wheeling area meets the requirements for redesignation under subpart 1.
These subpart 1 requirements include, among other things, provisions
for attainment demonstrations, reasonably available control measures
(RACM), reasonable further progress (RFP), emissions inventories, and
contingency measures.
---------------------------------------------------------------------------
\3\ PM10 refers to particulates nominally 10
micrometers in diameter or smaller.
---------------------------------------------------------------------------
For the purposes of this redesignation, in order to identify any
additional requirements which would apply under subpart 4, we are
considering the Ohio portion of the Wheeling area to be a ``moderate''
PM2.5 nonattainment area. Under section 188 of the CAA, all
areas designated nonattainment areas under subpart 4 would initially be
classified by operation of law as ``moderate'' nonattainment areas, and
would remain moderate nonattainment areas unless and until EPA
reclassifies the area as a ``serious'' nonattainment area.\4\
Accordingly, EPA believes that it is appropriate to limit the
evaluation of the potential impact of subpart 4 requirements to those
that would be applicable to moderate nonattainment areas. Sections
189(a) and (c) of subpart 4 apply to moderate nonattainment areas and
include the following: (1) An approved permit program for construction
of new and modified major stationary sources (section 189(a)(1)(A));
(2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions
for RACM (section 189(a)(1)(C)); and (4) quantitative milestones
demonstrating RFP toward attainment by the applicable attainment date
(section 189(c)).
---------------------------------------------------------------------------
\4\ Section 188(a) also provides that EPA publish a notice
announcing the classification of each area under subpart 4.
---------------------------------------------------------------------------
The permit requirements of subpart 4, as contained in section
189(a)(1)(A), refer to and apply the subpart 1 permit provisions
requirements of sections 172 and 173 to PM10, without adding
to them. Consequently, EPA believes that section 189(a)(1)(A) does not
itself impose for redesignation purposes any additional requirements
for moderate areas beyond those contained in subpart 1.\5\ In any
event, in the context of redesignation, EPA has long relied on the
interpretation that a fully approved nonattainment new source review
program is not considered an applicable requirement for redesignation,
provided the area can maintain the standard with a prevention of
significant deterioration (PSD) program after redesignation. A detailed
rationale for this view is described in a memorandum from Mary Nichols,
Assistant Administrator for Air and Radiation, dated October 14, 1994,
entitled, ``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' See also rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain,
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
---------------------------------------------------------------------------
\5\ The potential effect of section 189(e) on section
189(a)(1)(A) for purposes of evaluating this redesignation is
discussed below.
---------------------------------------------------------------------------
With respect to the specific attainment planning requirements under
subpart 4,\6\ when EPA evaluates a redesignation request under either
subpart 1 and/or 4, any area that is attaining the PM2.5
standard is viewed as having satisfied the attainment planning
requirements for these subparts. For redesignations, EPA has for many
years interpreted attainment-linked requirements as not applicable for
areas attaining the standard. In the General Preamble, EPA stated that:
---------------------------------------------------------------------------
\6\ I.e., attainment demonstration, RFP, RACM, milestone
requirements, contingency measures.
The requirements for RFP will not apply in evaluating a request
for redesignation to attainment since, at a minimum, the air quality
data for the area must show that the area has already attained.
Showing that the State will make RFP towards attainment will,
---------------------------------------------------------------------------
therefore, have no meaning at that point.
[[Page 38251]]
``General Preamble for the Interpretation of Title I of the Clean Air
Act Amendments of 1990''; (57 FR 13498, 13564, April 16, 1992).
The General Preamble also explained that
[t]he section 172(c)(9) requirements are directed at ensuring RFP
and attainment by the applicable date. These requirements no longer
apply when an area has attained the standard and is eligible for
redesignation. Furthermore, section 175A for maintenance plans . . .
provides specific requirements for contingency measures that
effectively supersede the requirements of section 172(c)(9) for
these areas.
Id.
EPA similarly stated in its 1992 Calcagni memorandum that, ``The
requirements for reasonable further progress and other measures needed
for attainment will not apply for redesignations because they only have
meaning for areas not attaining the standard.''
It is evident that even if we were to consider the Court's January
4, 2013, decision in NRDC v. EPA to mean that attainment-related
requirements specific to subpart 4 should be imposed retroactively \7\
and thus are now past due, those requirements do not apply to an area
that is attaining the 1997 PM2.5 standard, for the purpose
of evaluating a pending request to redesignate the area to attainment.
EPA has consistently enunciated this interpretation of applicable
requirements under section 107(d)(3)(E) since the General Preamble was
published more than twenty years ago. Courts have recognized the scope
of EPA's authority to interpret ``applicable requirements'' in the
redesignation context. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004).
---------------------------------------------------------------------------
\7\ As EPA has explained above, we do not believe that the
Court's January 4, 2013, decision should be interpreted so as to
impose these requirements on the states retroactively. Sierra Club
v. Whitman, supra.
---------------------------------------------------------------------------
Moreover, even outside the context of redesignations, EPA has
viewed the obligations to submit attainment-related SIP planning
requirements of subpart 4 as inapplicable for areas that EPA determines
are attaining the standard. EPA's prior ``Clean Data Policy''
rulemakings for the PM10 NAAQS, also governed by the
requirements of subpart 4, explain EPA's reasoning. They describe the
effects of a determination of attainment on the attainment-related SIP
planning requirements of subpart 4. See ``Determination of Attainment
for Coso Junction Nonattainment Area,'' (75 FR 27944, May 19, 2010).
See also Coso Junction proposed PM10 redesignation, (75 FR
36023, 36027, June 24, 2010); Proposed and Final Determinations of
Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55,
July 19, 2006; and 71 FR 63641, 63643-47 October 30, 2006). In short,
EPA in this context has also long concluded that to require states to
meet superfluous SIP planning requirements is not necessary and not
required by the CAA, so long as those areas continue to attain the
relevant NAAQS.
In its November 30, 2012, proposal for this action, EPA proposed to
determine that the Ohio portion of the Wheeling area has attained the
1997 PM2.5 standard and therefore meets the attainment-
related plan requirements of subpart 1. Under its longstanding
interpretation, EPA is proposing to determine here that the area also
meets the attainment-related plan requirements of subpart 4.
Thus, EPA is proposing to conclude that the requirements to submit
an attainment demonstration under 189(a)(1)(B), a RACM determination
under section 172(c) and section 189(a)(1)(c), and a RFP demonstration
under 189(c)(1) are satisfied for purposes of evaluating the
redesignation request.
c. Subpart 4 and Control of PM2.5 Precursors
The D.C. Circuit, in NRDC v. EPA, remanded to EPA the two rules at
issue in the case with instructions to EPA to re-promulgate them
consistent with the requirements of subpart 4. The Court's opinion
raises the issue of the appropriate approach to addressing
PM2.5 precursors in this and future EPA actions. While past
implementation of subpart 4 for PM10 has allowed for control
of PM10 precursors such as NOX from major
stationary, mobile, and area sources in order to attain the standard as
expeditiously as practicable, CAA section 189(e) specifically provides
that control requirements for major stationary sources of direct
PM10 shall also apply to PM10 precursors from
those sources, except where EPA determines that major stationary
sources of such precursors ``do not contribute significantly to
PM10 levels which exceed the standard in the area.''
EPA's 1997 PM2.5 implementation rule, remanded by the
D.C. Circuit, contained rebuttable presumptions concerning certain
PM2.5 precursors applicable to attainment plans and control
measures related to those plans. Specifically, in 40 CFR 51.1002, EPA
provided, among other things, that a state was ``not required to
address VOC [and ammonia] as . . . PM2.5 attainment plan
precursor[s] and to evaluate sources of VOC [and ammonia] emissions in
the State for control measures.'' EPA intended these to be rebuttable
presumptions. EPA established these presumptions at the time because of
uncertainties regarding the emission inventories for these pollutants
and the effectiveness of specific control measures in various regions
of the country in reducing PM2.5 concentrations. EPA also
left open the possibility for such regulation of VOC and ammonia in
specific areas where that was necessary.
The Court in its January 4, 2013, decision made reference to both
section 189(e) and 40 CFR 51. 1002, and stated that, ``In light of our
disposition, we need not address the petitioners' challenge to the
presumptions in [40 CFR 51.1002] that volatile organic compounds and
ammonia are not PM2.5 precursors, as subpart 4 expressly
governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
Elsewhere in the Court's opinion, however, the Court observed:
Ammonia is a precursor to fine particulate matter, making it a
precursor to both PM2.5 and PM10. For a
PM10 nonattainment area governed by subpart 4, a
precursor is presumptively regulated. See 42 U.S.C. Sec. 7513a(e)
[section 189(e)].
Id. at 21, n.7.
For a number of reasons, EPA believes that the Court's decision on
this aspect of subpart 4 does not preclude EPA's approval of Ohio's
redesignation request for the 1997 PM2.5 NAAQS. First, while
the Court, citing section 189(e), stated that ``for a PM10
area governed by subpart 4, a precursor is `presumptively regulated,'
'' the Court expressly declined to decide the specific challenge to
EPA's 1997 PM2.5 implementation rule provisions regarding
ammonia and VOC as precursors. The Court had no occasion to reach
whether and how it was substantively necessary to regulate any specific
precursor in a particular PM2.5 nonattainment area, and did
not address what might be necessary for purposes of acting upon a
redesignation request.
However, even if EPA takes the view that the requirements of
subpart 4 were deemed applicable at the time the state submitted the
redesignation request, and disregards the implementation rule's
rebuttable presumptions regarding ammonia and VOC as PM2.5
precursors, the regulatory consequence would be to consider the need
for regulation of all precursors from any sources in the area to
demonstrate attainment and to apply the section 189(e) provisions to
major stationary sources of precursors. In the case of the Ohio portion
of the Wheeling area, EPA believes that doing so would
[[Page 38252]]
not affect the approvability of the proposed redesignation of the area
for the 1997 PM2.5 standard. The entire Wheeling area has
attained the standard without any specific additional controls of VOC
and ammonia emissions from any sources in the area.
Precursors in subpart 4 are specifically regulated under the
provisions of section 189(e), which requires, with important
exceptions, control requirements for major stationary sources of
PM10 precursors.\8\ Under subpart 1 and EPA's prior
implementation rule, all major stationary sources of PM2.5
precursors were subject to regulation, with the exception of ammonia
and VOC. Thus we must address here whether additional controls of
ammonia and VOC from major stationary sources are required under
section 189(e) of subpart 4 in order to redesignate the Ohio portion of
the Wheeling area for the 1997 PM2.5 standard. As explained
below, we do not believe that any additional controls of ammonia and
VOC are required in the context of this redesignation.
---------------------------------------------------------------------------
\8\ Under either subpart 1 or subpart 4, for purposes of
demonstrating attainment as expeditiously as practicable, a state is
required to evaluate all economically and technologically feasible
control measures for direct PM emissions and precursor emissions,
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------
In the General Preamble, EPA discusses its approach to implementing
section 189(e). See 57 FR 13538-13542. With regard to precursor
regulation under section 189(e), the General Preamble explicitly stated
that control of VOCs under other Act requirements may suffice to
relieve a state from the need to adopt precursor controls under section
189(e). 57 FR 13542. EPA in this supplemental proposal proposes to
determine that the Ohio SIP has met the provisions of section 189(e)
with respect to ammonia and VOCs as precursors. This proposed
supplemental determination is based on our findings that: (1) The Ohio
portion of the Wheeling area contains no major stationary sources of
ammonia, and (2) existing major stationary sources of VOC are
adequately controlled under other provisions of the CAA regulating the
ozone NAAQS.\9\ In the alternative, EPA proposes to determine that,
under the express exception provisions of section 189(e), and in the
context of the redesignation of the Ohio portion of the Wheeling area,
which is attaining the 1997 annual PM2.5 standard, at
present ammonia and VOC precursors from major stationary sources do not
contribute significantly to levels exceeding the 1997 PM2.5
standard in the area. See 57 FR 13539-13542.
---------------------------------------------------------------------------
\9\ The Ohio portion of the Wheeling area has reduced VOC
emissions through the implementation of various control programs
including VOC Reasonably Available Control Technology regulations
and various on-road and non-road motor vehicle control programs.
---------------------------------------------------------------------------
EPA notes that its 1997 PM2.5 implementation rule
provisions in 40 CFR 51.1002 were not directed at evaluation of
PM2.5 precursors in the context of redesignation, but at SIP
plans and control measures required to bring a nonattainment area into
attainment of the 1997 PM2.5 NAAQS. By contrast,
redesignation to attainment primarily requires the area to have already
attained due to permanent and enforceable emission reductions, and to
demonstrate that controls in place can continue to maintain the
standard. Thus, even if we regard the Court's January 4, 2013, decision
as calling for ``presumptive regulation'' of ammonia and VOC for
PM2.5 under the attainment planning provisions of subpart 4,
those provisions in and of themselves do not require additional
controls of these precursors for an area that already qualifies for
redesignation, nor does EPA believe that requiring Ohio to address
precursors differently than they have already would result in a
substantively different outcome.
Although, as EPA has emphasized, its consideration here of
precursor requirements under subpart 4 is in the context of a
redesignation to attainment, EPA's existing interpretation of subpart 4
requirements with respect to precursors in attainment plans for
PM10 contemplates that states may develop attainment plans
that regulate only those precursors that are necessary for purposes of
attainment in the area in question, i.e., states may determine that
only certain precursors need be regulated for attainment and control
purposes.\10\ Courts have upheld this approach to the requirements of
subpart 4 for PM10.\11\ EPA believes that application of
this approach to PM2.5 precursors under subpart 4 is
reasonable. Because the Wheeling area has already attained the 1997
PM2.5 NAAQS with its current approach to regulation of
PM2.5 precursors, EPA believes that it is reasonable to
conclude in the context of this redesignation that there is no need to
revisit the attainment control strategy with respect to the treatment
of precursors. Even if the Court's decision is construed to impose an
obligation, in evaluating this redesignation request, to consider
additional precursors under subpart 4, it would not affect EPA's
approval here of Ohio's request for redesignation of the Ohio portion
of the Wheeling area. In the context of a redesignation, the area has
shown that it has attained the standard. Moreover, the state has shown
and EPA has proposed to determine that attainment in this area is due
to permanent and enforceable emissions reductions on all precursors
necessary to provide for continued attainment. It follows logically
that no further control of additional precursors is necessary.
Accordingly, EPA does not view the January 4, 2013, decision of the
Court as precluding redesignation of the Ohio portion of the Wheeling
area to attainment for the 1997 PM2.5 NAAQS at this time.
---------------------------------------------------------------------------
\10\ See, e.g., ``Approval and Promulgation of Implementation
Plans for California--San Joaquin Valley PM-10 Nonattainment Area;
Serious Area Plan for Nonattainment of the 24-Hour and Annual PM-10
Standards,'' 69 FR 30006 (May 26, 2004) (approving a PM10
attainment plan that impose controls on direct PM10 and
NOX emissions and did not impose controls on
SO2, VOC, or ammonia emissions).
\11\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------
In sum, even if Ohio were required to address precursors for the
Ohio portion of the Wheeling area under subpart 4 rather than under
subpart 1, as interpreted in EPA's remanded PM2.5
implementation rule, EPA would still conclude that the area had met all
applicable requirements for purposes of redesignation in accordance
with section 107(d)(3(E)(ii) and (v).
d. Maintenance Plan and Evaluation of Precursors
With regard to the redesignation of the Ohio portion of the
Wheeling area, in evaluating the effect of the Court's remand of EPA's
implementation rule, which included presumptions against consideration
of VOC and ammonia as PM2.5 precursors, EPA in this
supplemental proposal is also considering the impact of the decision on
the maintenance plan required under sections 175A and 107(d)(3)(E)(iv).
To begin with, EPA notes that the area has attained the 1997
PM2.5 standard and that the state has shown that attainment
of that standard is due to permanent and enforceable emission
reductions.
In its prior proposal notice for this action, EPA proposed to
determine that the state's maintenance plan shows continued maintenance
of the standard by tracking the levels of the precursors whose control
brought about attainment of the 1997 PM2.5 standard in the
Ohio portion of the Wheeling area. EPA therefore believes that the only
additional consideration related to the maintenance plan requirements
that results from the Court's January 4, 2013, decision is that of
assessing the potential role of VOC and ammonia in demonstrating
continued maintenance
[[Page 38253]]
in this area. As explained below, based upon documentation provided by
the state and supporting information, EPA believes that the maintenance
plan for the Ohio portion of the Wheeling area need not include any
additional emission reductions of VOC or ammonia in order to provide
for continued maintenance of the standard.
First, as noted above in EPA's discussion of section 189(e), VOC
emission levels in this area have historically been well controlled
under SIP requirements related to ozone and other pollutants. Second,
total ammonia emissions throughout the Ohio portion of the Wheeling
area are very low, estimated to be less than 500 tons per year. See
Table 4 below. This amount of ammonia emissions is especially small in
comparison to the total amounts of SO2, NOX, and
even direct PM2.5 emissions from sources in the area. Third,
as described below, available information shows that no precursor,
including VOC and ammonia, is expected to increase over the maintenance
period so as to interfere with or undermine the state's maintenance
demonstration.
Ohio's maintenance plan shows that emissions of direct
PM2.5, SO2, and NOX are projected to
decrease by 212.68 tons per year (tpy), 31,342.08 tpy, and 2,137.21
tpy, respectively, over the maintenance period. See Tables 1-3 below.
In addition, emissions inventories used in the regulatory impact
analysis (RIA) for the 2012 PM2.5 NAAQS show that VOC
emissions are projected to decrease by 1,155.91 tpy, and that ammonia
emissions will decrease by 17.98 tpy, between 2007 and 2020. See Table
4 below. While the RIA emissions inventories are only projected out to
2020, there is no reason to believe that the downward trend of VOC and
ammonia emissions would not continue through 2022. Given that the
Wheeling area is already attaining the 1997 PM2.5 NAAQS even
with the current level of emissions from sources in the area, the
downward trend of emissions from VOC and ammonia inventories would be
consistent with continued attainment of the NAAQS. Indeed, projected
emissions reductions for the precursors that the state is addressing
for purposes of the 1997 PM2.5 NAAQS indicate that the area
should continue to attain the NAAQS following the precursor control
strategy that the state has already elected to pursue. Even if VOC and
ammonia emissions were to increase unexpectedly between 2020 and 2022,
the overall emissions reductions projected in direct PM2.5,
SO2, and NOX would be sufficient to offset any
increases. For these reasons, EPA believes that local emissions of all
of the potential PM2.5 precursors will not increase to the
extent that they will cause monitored PM2.5 levels to
violate the 1997 PM2.5 standard during the maintenance
period.
Table 1--Comparison of 2005, 2008, 2015, and 2022 Direct PM2.5 Emission Totals by Source Sector (tpy) for the
Ohio Portion of the Wheeling Area
[Belmont County, Ohio]
----------------------------------------------------------------------------------------------------------------
Direct PM2.5
-----------------------------------------------------------------
Sector Net change
2005 2008 2015 2022 2005-2022
----------------------------------------------------------------------------------------------------------------
Point......................................... 3.39 3.39 3.94 4.40 1.01
EGU \12\...................................... 93.85 69.58 20.87 0 -93.85
Area.......................................... 307.93 305.38 297.20 289.22 -18.71
Non-road...................................... 33.60 29.80 20.84 11.89 -21.71
On-road \13\.................................. 105.74 88.66 45.08 26.32 -79.42
-----------------------------------------------------------------
Total..................................... 544.51 496.81 387.93 331.83 -212.68
----------------------------------------------------------------------------------------------------------------
Table 2--Comparison of 2005, 2008, 2015, and 2022 SO2 Emission Totals by Source Sector (tpy) for the Ohio
Portion of the Wheeling Area
[Belmont County, Ohio]
----------------------------------------------------------------------------------------------------------------
SO2
-----------------------------------------------------------------
Sector Net change
2005 2008 2015 2022 2005-2022
----------------------------------------------------------------------------------------------------------------
Point......................................... 0.13 0.07 0.10 0.11 -0.02
EGU........................................... 37,329.95 15,126.00 8,783.33 6,065.04 -31,264.91
Area.......................................... 93.50 92.24 87.16 82.29 -11.21
Non-road...................................... 44.82 24.46 8.23 3.51 -41.31
On-road....................................... 30.84 9.38 6.72 6.21 -24.63
-----------------------------------------------------------------
Total..................................... 37,499.24 15,252.15 8,885.54 6,157.16 -31,342.08
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\12\ Electric generating units.
\13\ Emissions projections for the on-road sector were generated
using the MOVES model.
[[Page 38254]]
Table 3--Comparison of 2005, 2008, 2015, and 2022 NOX Emission Totals by Source Sector (tpy) for the Ohio
Portion of the Wheeling Area
[Belmont County, Ohio]
----------------------------------------------------------------------------------------------------------------
NOX
----------------------------------------------------------------
Sector Net change
2005 2008 2015 2022 2005-2022
----------------------------------------------------------------------------------------------------------------
Point.......................................... 22.76 20.67 20.19 18.90 -3.86
EGU............................................ 4,149.93 4,167.94 4,477.58 4,738.00 588.07
Area........................................... 284.66 286.90 286.77 287.15 2.49
Non-road....................................... 484.31 444.10 306.14 172.31 -312
On-road........................................ 3,179.52 2,593.58 1,279.25 587.61 -2,591.91
----------------------------------------------------------------
Total...................................... 8,121.18 7,513.19 6,369.93 5,803.97 -2,137.21
----------------------------------------------------------------------------------------------------------------
Table 4--Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Ohio Portion
of the Wheeling Area
[Belmont County, Ohio] \14\
----------------------------------------------------------------------------------------------------------------
VOC Ammonia
-----------------------------------------------------------------------------
Sector Net change Net change
2007 2020 2007-2020 2007 2020 2007-2020
----------------------------------------------------------------------------------------------------------------
Point............................. 52.50 51.37 -1.13 56.94 56.09 -0.85
Area.............................. 777.12 774.54 -2.58 386.69 391.03 4.34
Non-road.......................... 418.70 218.65 -200.05 0.38 0.42 0.04
On-road........................... 1,465.35 513.19 -952.16 48.10 26.58 -21.52
Fires............................. 42.42 42.42 0 2.95 2.95 0
-----------------------------------------------------------------------------
Total......................... 2,756.08 1,600.17 -1,155.91 495.05 477.07 -17.98
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\14\ These emissions estimates were taken from the emissions
inventories developed for the RIA for the 2012 PM2.5
NAAQS.
---------------------------------------------------------------------------
In addition, available air quality modeling analyses show continued
maintenance of the standard during the maintenance period. The current
air quality design value for the area is 13 micrograms per cubic meter
([mu]g/m\3\) (based on 2009-11 air quality data), which is well below
the 1997 annual PM2.5 NAAQS of 15 [mu]g/m\3\. Moreover, the
modeling analysis conducted for the RIA for the 2012 PM2.5
NAAQS indicates that the design value for this area is expected to
significantly decline through 2020. In the RIA analysis, the 2020
modeled design value for the Wheeling area is 8.4 [mu]g/m\3\. Given
that all precursor emissions are projected to decrease through 2022, it
is reasonable to conclude that monitored PM2.5 levels in
this area will also continue to decrease through 2022.
Thus, EPA believes that there is ample justification to conclude
that the Ohio portion of the Wheeling area should be redesignated, even
taking into consideration the emissions of other precursors potentially
relevant to PM2.5. After consideration of the D.C. Circuit's
January 4, 2013, decision, and for the reasons set forth in this
supplemental notice, EPA continues to propose approval of Ohio's
maintenance plan and its request to redesignate the Ohio portion of the
Wheeling area to attainment for the 1997 PM2.5 annual
standard.
B. Ammonia and VOC Comprehensive Emissions Inventories
In this supplemental proposal EPA also addresses the State of
Ohio's supplemental submission that provides additional information
concerning ammonia and VOC emissions in the Wheeling area in order to
meet the emissions inventory requirement of CAA section 172(c)(3).
Section 172(c)(3) of the CAA requires states to submit a comprehensive,
accurate, and current emissions inventory for a nonattainment area. For
purposes of the PM2.5 NAAQS, this emissions inventory should
address not only direct emissions of PM2.5, but also
emissions of all precursors with the potential to participate in
PM2.5 formation, i.e., SO2, NOX, VOC
and ammonia.
In the November 30, 2012, proposed rule, EPA proposed to approve
the emissions inventory information for direct PM2.5,
NOX, and SO2 submitted by OEPA as meeting the
emissions inventory requirement for the Wheeling area. On April 30,
2013, OEPA supplemented its submittal with 2007/2008 emissions
inventories for ammonia and VOC. The additional emissions inventory
information provided by the state addresses emissions of VOC and
ammonia from the general source categories of point sources, area
sources, on-road mobile sources, and non-road mobile sources. The
state-submitted emissions inventories were based upon information
generated by the Lake Michigan Air Directors Consortium (LADCO) in
conjunction with its member states and are presented in Table 5 below.
LADCO ran the EMS model using data provided by Ohio to generate
point source emissions estimates. The point source data was obtained
from Ohio's source facility emissions reporting.
For area sources, LADCO ran the EMS model using the 2008 National
Emissions Inventory (NEI) data provided by Ohio. LADCO followed Eastern
Regional Technical Advisory Committee (ERTAC) recommendations on area
sources when preparing the data. Agricultural ammonia emissions were
not taken from NEI; instead emissions were based on Carnegie Mellon
University's Ammonia Emission Inventory for the Continental United
States (CMU). Specifically, the CMU 2002 annual emissions were grown to
reflect 2007 conditions. A process-based ammonia emissions model
developed
[[Page 38255]]
for LADCO was then used to develop temporal factors to reflect the
impact of average meteorology on livestock emissions.
Non-road mobile source emissions were generated using the NMIM2008
emissions model. LADCO also accounted for three other non-road
categories not covered by the NMIM model (commercial marine vessels,
aircraft, and railroads). Marine emissions were based on reports
prepared by Environ entitled ``LADCO Nonroad Emissions Inventory
Project for Locomotive, Commercial Marine, and Recreational Marine
Emission Sources, Final Report, December 2004'' and ``LADCO 2005
Commercial Marine Emissions, Draft, March 2, 2007.'' Aircraft emissions
were provided by Ohio and calculated using AP-42 emission factors and
landing and take-off data provided by the Federal Aviation
Administration. Rail emissions were based on the 2008 inventory
developed by ERTAC.
On-road mobile source emissions were generated using EPA's
MOVES2010a emissions model.
EPA notes that the emissions inventory developed by LADCO is
documented in ``Regional Air Quality Analyses for Ozone,
PM2.5, and Regional Haze: Base C Emissions Inventory''
(September 12, 2011).
Table 5--Wheeling Area Ammonia and VOC Emissions (tpy) for 2007/2008 by
Source Sector
------------------------------------------------------------------------
Sector Ammonia VOC
------------------------------------------------------------------------
Point......................................... 54.06 48.68
Area.......................................... 405.94 863.87
Non-road...................................... 0.37 430.01
On-road....................................... 52.82 1,376.69
-------------------------
Total..................................... 513.19 2,719.26
------------------------------------------------------------------------
EPA has concluded that the 2007/2008 ammonia and VOC emissions
inventories provided by Ohio are complete and as accurate as possible
given the input data available for the relevant source categories. EPA
also believes that these inventories provide information about VOC and
ammonia as PM2.5 precursors in the context of evaluating
redesignation of the Ohio portion of the Wheeling area under subpart 4.
Therefore, we are proposing to approve the ammonia and VOC emissions
inventories submitted by Ohio, in conjunction with the NOX,
direct PM2.5, and SO2 emissions inventories that
EPA previously proposed to approve, as fully meeting the comprehensive
inventory requirement of section 172(c)(3) of the CAA for the Ohio
portion of the Wheeling area for the 1997 annual PM2.5
standard. Since EPA's prior proposal addressed other precursor
emissions inventories, EPA in this supplemental proposal is seeking
comment only with respect to the additional inventories for VOC and
ammonia that Ohio has submitted.
IV. Summary of Proposed Actions
After fully considering the D.C. Circuit's decision in the NRDC v.
EPA on EPA's 1997 PM2.5 Implementation rule, EPA in this
supplemental notice is proposing to proceed with approval of the
request to redesignate the Ohio portion of the Wheeling area to
attainment for the 1997 annual PM2.5 NAAQS and of the
associated maintenance plan. EPA is concluding that the D.C. Circuit
decision regarding the applicability of the requirements of subpart 4
of part D of title I of the CAA does not change the applicable
requirements for redesignation of the Parkersburg area to attainment of
the 1997 PM2.5 NAAQS. In this supplemental notice, EPA is
also proposing to approve the 2007/2008 ammonia and VOC emissions
inventories as meeting, in conjunction with the NOX, direct
PM2.5 and SO2 inventories that EPA previously
proposed to approve, the comprehensive emissions inventory requirements
of section 172(c)(3) of the CAA. EPA is seeking comment only on the
issues raised in its supplemental proposals, and is not re-opening
comment on other issues addressed in its prior proposal.
V. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, these proposed actions do not impose additional
requirements beyond those imposed by state law and the CAA. For that
reason, these proposed actions:
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible
[[Page 38256]]
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because a determination of attainment is an action that affects the
status of a geographical area and does not impose any new regulatory
requirements on tribes, impact any existing sources of air pollution on
tribal lands, nor impair the maintenance of ozone national ambient air
quality standards in tribal lands.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: June 13, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013-15295 Filed 6-25-13; 8:45 am]
BILLING CODE 6560-50-P
