Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Approval of the Redesignation Requests and the Associated Maintenance Plans of the Charleston Nonattainment Area To Attainment for the 1997 Annual and 2006 24-Hour Fine Particulate Matter Standard, 4121-4138 [2014-01181]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 79, Number 16 (Friday, January 24, 2014)]
[Proposed Rules]
[Pages 4121-4138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01181]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2013-0090; FRL-9905-64-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Approval of the Redesignation Requests and the 
Associated Maintenance Plans of the Charleston Nonattainment Area To 
Attainment for the 1997 Annual and 2006 24-Hour Fine Particulate Matter 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State of West Virginia's requests to redesignate to 
attainment the Charleston nonattainment area for the 1997 annual and 
the 2006 24-hour fine particulate matter (PM2.5) national 
ambient air quality standard (NAAQS). EPA is also proposing to 
determine that the Charleston Area continues to attain both the1997 
annual and the 2006 24-hour PM2.5 NAAQS. In addition, EPA is 
proposing to approve as a revision to the West Virginia state 
implementation plan (SIP), the associated maintenance plans to show 
maintenance of the 1997 annual and the 2006 24-hour PM2.5 
NAAQS through 2025 for the Charleston Area. As part of the maintenance 
plan, EPA is proposing to approve a 2008 emissions inventory for the 
Charleston Area for the 2006 24-hour PM2.5 NAAQS. EPA is 
proposing that the 2008 emissions inventory for volatile organic 
compounds (VOCs) and ammonia (NH3), in conjunction with 
inventories for nitrogen oxides (NOx), direct 
PM2.5, and sulfur dioxide (SO2) meet the 
comprehensive emissions inventory requirement of the Clean Air Act 
(CAA) for the 2006 24-hour PM2.5 NAAQS. West Virginia's 
maintenance plans include insignificance findings for the mobile source 
contribution of PM2.5 and NOx emissions for the 
Charleston Area for both the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS. EPA agrees with these insignificance findings, 
and is proposing approval of such findings for transportation 
conformity purposes. In this rulemaking action, EPA also addresses the 
effects of two decisions of the United States Court of Appeals for the 
District of Columbia (DC Circuit Court): The DC Circuit Court's August 
21, 2012 decision to vacate and remand the Cross-State Air Pollution 
Control (CSAPR); and the DC Circuit Court's January 4, 2013 decision to 
remand to EPA two rules implementing the 1997 annual PM2.5 
NAAQS. This rulemaking action to propose approval of the 1997 annual 
and the 2006 24-hour PM2.5 NAAQS redesignation requests and 
associated maintenance plans for the Charleston Area is based on EPA's 
determination that the Area has met the criteria for redesignation to 
attainment specified in the CAA for both the 1997 annual and the 2006 
24-hour PM2.5 NAAQS.

DATES: Written comments must be received on or before February 24, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0090 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2013-0090, Cristina Fernandez, Associate 
Director, Office of Air Quality Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0090. 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.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the West Virginia Department of Environmental 
Protection, Division of Air Quality, 601 57th Street SE., Charleston, 
West Virginia 24304.

[[Page 4122]]


FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by 
email at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. EPA's Requirements
    A. Criteria for Redesignation to Attainment
    B. Requirements of a Maintenance Plan
III. Summary of Proposed Actions
IV. Effects of Recent Court Decisions on Proposed Actions
    A. Effect of the August 21, 2012 DC Circuit Court Decision 
Regarding EPA's CSAPR
    B. Effect of the January 4, 2013 DC Circuit Court Decision 
Regarding the PM2.5 Implementation under Subpart 4 of 
Part D of Title I of the CAA
V. EPA's Analysis of West Virginia's Submittals
    A. Redesignation Requests
    B. Maintenance Plans
    C. Transportation Conformity Insignificance Determination
VI. Proposed Actions
VII. Statutory and Executive Order Reviews

I. Background

    The first air quality standards for PM2.5 were 
established on July 18, 1997 (62 FR 38652). EPA promulgated an annual 
standard at a level of 15 micrograms per cubic meter ([mu]g/m\3\), 
based on a three-year average of annual mean PM2.5 
concentrations (the 1997 annual PM2.5 standard). In the same 
rulemaking, EPA promulgated a 24-hour standard of 65 [mu]g/m\3\ based 
on a three-year average of the 98th percentile of 24-hour 
concentrations.
    On January 5, 2005 (70 FR 944, 1014), EPA published air quality 
area designations for the 1997 PM2.5 NAAQS. In that 
rulemaking action, EPA designated the Charleston Area as nonattainment 
for the 1997 annual PM2.5 NAAQS. The Charleston Area is 
comprised of Kanawha and Putnam Counties. See 40 CFR 81.349.
    On October 17, 2006 (71 FR 61144), EPA retained the annual average 
standard at 15 [mu]g/m\3\ but revised the 24-hour standard to 35 [mu]g/
m\3\, based again on the three-year average of the 98th percentile of 
the 24-hour concentrations (the 2006 annual PM2.5 standard) 
. On November 13, 2009 (74 FR 58688), EPA published designations for 
the 2006 24-hour PM2.5 standard, which became effective on 
December 14, 2009. In that rulemaking action, EPA designated the 
Charleston Area as nonattainment for the 2006 24-hour PM2.5 
NAAQS. See 74 FR 58775 and 40 CFR 81.349.
    In response to legal challenges of the annual standard promulgated 
in 2006, the DC Circuit Court remanded the 2006 annual standard to EPA 
for further consideration. See American Farm Bureau Federation and 
National Pork Producers Council, et. al. v. EPA, 559 F.3d 512 (D.C. 
Cir. 2009). However, given that the 1997 annual and the 2006 annual 
PM2.5 standards are essentially identical, attainment of the 
1997 annual PM2.5 standard would also indicate attainment of 
the remanded 2006 annual PM2.5 standard. Since the 
Charleston Area is designated nonattainment for the1997 annual and the 
2006 24-hour PM2.5 NAAQS, today's proposed rulemaking action 
addresses the redesignation to attainment of the Charleston Area for 
these standards.
    On October 11, 2011 (76 FR 62640) and November 18, 2011 (76 FR 
71450), EPA determined that the Charleston Area has attained the 1997 
annual and 2006 24-hour PM2.5 NAAQS, respectively. Pursuant 
to 40 CFR 51.1004(c) and based on these determinations, the 
requirements for the Charleston Area to submit an attainment 
demonstration and associated reasonably available control measures 
(RACM), a reasonable further progress (RFP) plan, contingency measures, 
and other planning SIP revisions related to the attainment of either 
the 1997 annual and 2006 24-hour PM2.5 NAAQS are suspended 
until such time as: the Area is redesignated to attainment for each 
standard, at which time the requirements no longer apply; or EPA 
determines that the Area has again violated any of the standards, at 
which time such plans are required to be submitted.
    On December 12, 2012 (77 FR 73923), EPA approved a 2002 emissions 
inventory for the 1997 annual PM2.5 NAAQS for the Charleston 
Area. The emissions inventory was submitted with West Virginia's 
attainment plan for the 1997 annual PM2.5 NAAQS on November 
4, 2009, to meet the requirements of section 172(c)(3) of the CAA, one 
of the criteria for redesignation. The emissions inventory included 
emissions for 2002 that cover the general source categories of point, 
area, nonroad mobile, onroad mobile and biogenic sources which 
addressed 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 NH3.
    On December 6, 2012, the State of West Virginia through the West 
Virginia Department of Environmental Protection (WVDEP) formally 
submitted a request to redesignate the Charleston Area from 
nonattainment to attainment for the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS. Concurrently, WVDEP submitted maintenance plans 
for the Area as SIP revisions to ensure continued attainment throughout 
the Area over the next 10 years for the 1997 annual and the 2006 24-
hour PM2.5 NAAQS. The maintenance plans submitted for each 
of the standards are essentially the same, thus EPA is proposing to 
approve as a SIP revision a maintenance plan for both the 1997 annual 
and the 2006 24-hour PM2.5 NAAQS. The December 6, 2012 
submittal also includes a 2008 emissions inventory for 
PM2.5, SO2, and NOx for the 2006 24-
hour PM2.5 NAAQS, which WVDEP supplemented on June 24, 2013 
to include emissions of VOC and NH3. EPA is proposing to 
approve the 2008 emissions inventory for the 2006 24-hour 
PM2.5 NAAQS for PM2.5, SO2, 
NOx, VOC, and NH3 in order to meet the emissions 
inventory requirement of section 172(c)(3) of the CAA.
    In this proposed rulemaking action, EPA is taking into account two 
decisions of the DC Circuit Court. In the first of the two DC Circuit 
Court decisions, the DC Circuit Court, on August 21, 2012, issued EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), which 
vacated and remanded CSAPR and ordered EPA to continue administering 
the Clean Air Interstate Rule (CAIR) ``pending . . . development of a 
valid replacement.'' EME Homer City at 38. The DC Circuit Court denied 
all petitions for rehearing on January 24, 2013. EPA and other parties 
filed for certiorari to the Supreme Court, and on June 24, 2013, the 
Supreme Court granted certiorari on EPA's petition for appeal of EME 
Homer City Generation. See EME Homer City Generation, L.P. v. EPA, 696 
F.3d 7 (D.C. Cir. 2012), cert. granted, 570 U.S. -- (2013). 
Nonetheless, EPA intends to continue to act in accordance with the EME 
Homer City opinion. In the second decision, on January 4, 2013, in 
Natural Resources Defense Council (NRDC) v. EPA, the DC Circuit Court 
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).

II. EPA's Requirements

A. Criteria for Redesignation to Attainment

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
allows for redesignation providing that: (1) EPA determines that the 
area has attained the applicable NAAQS; (2) EPA has fully

[[Page 4123]]

approved the applicable implementation plan for the area under section 
110(k) of the CAA; (3) EPA determines that the improvement in air 
quality is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable SIP and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions; (4) EPA has fully approved a maintenance plan 
for the area as meeting the requirements of section 175A of the CAA; 
and (5) the state containing such area has met all requirements 
applicable to the area under section 110 and part D of the CAA.
    EPA has provided guidance on redesignation in the ``State 
Implementation Plans; General Preamble for the Implementation of Title 
I of the CAA Amendments of 1990,'' (57 FR 13498, April 16, 1992) (the 
``General Preamble'') and has provided further guidance on processing 
redesignation requests in the following documents: (1) ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992 (hereafter referred to as the ``1992 Calcagni 
Memorandum''); (2) ``State Implementation Plan (SIP) Actions Submitted 
in Response to Clean Air Act (CAA) Deadlines,'' Memorandum from John 
Calcagni, Director, Air Quality Management Division, October 28, 1992; 
and (3) ``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994.

B. Requirements of a Maintenance Plan

    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A of the CAA, the plan must demonstrate continued 
attainment of the applicable NAAQS for at least 10 years after approval 
of a redesignation of an area to attainment. Eight years after the 
redesignation, the state must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation, as EPA deems 
necessary to assure prompt correction of any future PM2.5 
violations.
    The 1992 Calcagni Memorandum provides additional guidance on the 
content of a maintenance plan. The memorandum states that a 
PM2.5 maintenance plan should address the following 
provisions: (1) An attainment emissions inventory; (2) a maintenance 
demonstration showing maintenance for 10 years; (3) a commitment to 
maintain the existing monitoring network; (4) verification of continued 
attainment; and (5) a contingency plan to prevent or correct future 
violations of the NAAQS.

III. Summary of Proposed Actions

    EPA is proposing to take several rulemaking actions related to the 
redesignation of the Charleston Area to attainment for both the 1997 
annual and the 2006 24-hour PM2.5 NAAQS. EPA is proposing to 
find that the Charleston Area meets the requirements for redesignation 
for the 1997 annual and the 2006 24-hour PM2.5 NAAQS under 
section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve West 
Virginia's request to change the legal designation for the Charleston 
Area from nonattainment to attainment for the 1997 annual and the 2006 
24-hour PM2.5 NAAQS.
    EPA is also proposing to approve the associated maintenance plans 
for the Charleston Area as a revision to the West Virginia SIP for the 
1997 annual and the 2006 24-hour PM2.5 NAAQS, including the 
insignificance determinations for PM2.5 and NOX 
for the onroad motor source contribution of the Charleston Area for 
both the 1997 annual and the 2006 24-hour PM2.5 NAAQS. The 
approval of the maintenance plans is one of the CAA criteria for 
redesignation of the Charleston Area to attainment for both standards. 
West Virginia's maintenance plans are designed to ensure continued 
attainment in the Charleston Area for 10 years after redesignation for 
both the 1997 annual and the 2006 24-hour PM2.5 NAAQS.
    EPA previously determined that the Charleston Area has attained 
both the 1997 annual and the 2006 24-hour PM2.5 NAAQS, 
therefore, EPA is proposing to find that the Area continues to attain 
both standards. See 76 FR 62640, October 11, 2011 and 76 FR 71450, 
November 18, 2011. EPA is also proposing to approve the 2008 
comprehensive emissions inventory that includes PM2.5, 
SO2 NOX, VOC, and NH3 for the 
Charleston Area as part of the West Virginia SIP for the 2006 24-hour 
PM2.5 NAAQS in order to meet the requirements of section 
172(c)(3) of the CAA.

IV. Effects of Recent Court Decisions on Proposed Actions

A. Effect of the August 21, 2012 DC Circuit Court Decision Regarding 
EPA's CSAPR

1. Background
    EPA recently promulgated CSAPR (76 FR 48208, August 8, 2011), to 
replace CAIR, which has been in place since 2005. See 76 FR 59517. CAIR 
requires significant reductions in emissions of SO2 and 
NOX from electric generating units to limit the interstate 
transport of these pollutants and the ozone and fine particulate matter 
they form in the atmosphere. See 76 FR 70093. The DC Circuit Court 
initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), but ultimately remanded the rule to EPA without vacatur to 
preserve the environmental benefits provided by CAIR, North Carolina v. 
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
    On December 30, 2011, the DC Circuit Court issued an order 
addressing the status of CSAPR and CAIR in response to motions filed by 
numerous parties seeking a stay of CSAPR pending judicial review. In 
that order, the DC Circuit Court stayed CSAPR pending resolution of the 
petitions for review of that rule in EME Homer City Generation, L.P. v. 
EPA (No. 11-1302 and consolidated cases). The DC Circuit Court also 
indicated that EPA was expected to continue to administer CAIR in the 
interim until judicial review of CSAPR was completed.
    On August 21, 2012, the DC Circuit Court issued a decision to 
vacate CSAPR. In that decision, it also ordered EPA to continue 
administering CAIR ``pending the promulgation of a valid replacement.'' 
EME Homer City, 696 F.3d at 38 (DC Circ. 2012). The DC Circuit Court 
denied all petitions for rehearing on January 24, 2013. EPA and other 
parties have filed petitions for certiorari to the U.S. Supreme Court. 
On June 24, 2013 the Supreme Court granted EPA's petition for 
certiorari. Nonetheless, EPA intends to continue to act in accordance 
with the EME Homer City opinion.
2. Proposal on This Issue
    In light of these unique circumstances and for the reasons 
explained subsequently, to the extent that attainment is due to 
emission reductions associated with CAIR, EPA is here proposing to 
determine that those reductions are sufficiently permanent and 
enforceable for purposes of sections 107(d)(3)(E)(iii) and 175A of the 
CAA. EPA, therefore, proposes to approve the

[[Page 4124]]

redesignation requests and the related SIP revisions for Kanawha and 
Putnam Counties in West Virginia, including West Virginia's plan for 
maintaining attainment of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS in the Charleston Area.
    As directed by the DC Circuit Court, CAIR remains in place and 
enforceable until substituted by a valid replacement rule. West 
Virginia's SIP revision lists CAIR as a control measure that was 
approved by EPA on August 6, 2009 (74 FR 38536) and became state-
effective on May 1, 2008 for the purpose of reducing SO2 and 
NOx emissions. CAIR was thus in place and getting emission 
reductions when the Charleston Area monitored attainment of the 1997 
annual and 2006 24-hour PM2.5 NAAQS. The quality-assured, 
quality-controlled, certified monitoring data used to demonstrate the 
Area's attainment of both the 1997 annual and 2006 24-hour 
PM2.5 NAAQS was also impacted by CAIR.
    To the extent that West Virginia is relying on CAIR in its 
maintenance plan, the recent directive from the DC Circuit Court in EME 
Homer City ensures that the reductions associated with CAIR will be 
permanent and enforceable for the necessary time period. EPA has been 
ordered by the DC Circuit Court to develop a new rule to address 
interstate transport to replace CSAPR, and the opinion makes clear that 
after promulgating that new rule, EPA must provide states an 
opportunity to draft and submit SIPs to implement that rule. Thus, CAIR 
will remain in place until: (1) EPA has promulgated a final rule 
through a notice-and-comment rulemaking process; (2) states have had an 
opportunity to draft and submit SIPs; (3) EPA has reviewed the SIPs to 
determine if they can be approved; and (4) EPA has taken action on the 
SIPs, including promulgating a Federal Implementation Plan (FIP) if 
appropriate. The DC Circuit Court's clear instruction to EPA that it 
must continue to administer CAIR until a valid replacement exists 
provides an additional backstop. By definition, any rule that replaces 
CAIR and meets the DC Circuit Court's direction would require upwind 
states to have SIPs that eliminate significant contributions to 
downwind nonattainment and prevent interference with maintenance in 
downwind areas.
    Further, in vacating CSAPR and requiring EPA to continue 
administering CAIR, the DC Circuit Court emphasized that the 
consequences of vacating CAIR ``might be more severe now in light of 
the reliance interests accumulated over the intervening four years.'' 
EME Homer City, 696 F.3d at 38. The accumulated reliance interests 
include the interests of states who reasonably assumed they could rely 
on reductions associated with CAIR which brought certain nonattainment 
areas into attainment with the NAAQS. If EPA were prevented from 
relying on reductions associated with CAIR in redesignation actions, 
states would be forced to impose additional, redundant reductions on 
top of those achieved by CAIR. EPA believes this is precisely the type 
of irrational result the DC Circuit Court sought to avoid by ordering 
EPA to continue administering CAIR. For these reasons also, EPA 
believes it is appropriate to allow states to rely on CAIR, and the 
existing emissions reductions achieved by CAIR, as sufficiently 
permanent and enforceable for purposes such as redesignation. Following 
promulgation of the replacement rule, EPA will review SIP revisions as 
appropriate to identify whether there are any issues that need to be 
addressed.

B. Effect of the January 4, 2013 DC Circuit Court Decision Regarding 
PM2.5 Implementation Under Subpart 4 of Part D of Title I of 
the CAA

1. Background
    On January 4, 2013, in NRDC v. EPA, the DC Circuit Court 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 DC Circuit Court found that EPA erred in 
implementing the 1997 annual PM2.5 NAAQS pursuant to the 
general implementation provisions of subpart 1 of Part D of Title I of 
the CAA (subpart 1), rather than the particulate-matter-specific 
provisions of subpart 4 of Part D of Title I (subpart 4). Although the 
DC Circuit Court did not directly address the 2006 24-hour 
PM2.5 NAAQS, EPA is taking into account the DC Circuit 
Court's position on subpart 4 and the 1997 annual PM2.5 
NAAQS in evaluating redesignations for the 2006 24-hour 
PM2.5 NAAQS.
2. Proposal on This Issue
    EPA is proposing to determine that the DC Circuit Court's January 
4, 2013 decision does not prevent EPA from redesignating the Charleston 
Area to attainment for either the 1997 annual or the 2006 24-hour 
PM2.5 NAAQS. Even in light of the DC Circuit Court's 
decision, redesignation for this Area is appropriate under the CAA and 
EPA's longstanding interpretations of the CAA's provisions regarding 
redesignation. EPA first 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 then shows that, even if EPA applies the subpart 4 
requirements to the West Virginia redesignation requests and disregards 
the provisions of its 1997 PM2.5 Implementation Rule 
recently remanded by the DC Circuit Court, the State's request for 
redesignation of the Area still qualifies for approval. EPA's 
discussion takes into account the effect of the DC Circuit 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 
Requests
    With respect to the 1997 PM2.5 Implementation Rule, the 
DC Circuit 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 annual PM2.5 NAAQS 
under subpart 4 of Part D of the CAA, in addition to subpart 1. For the 
purposes of evaluating the West Virginia's redesignation request for 
the Charleston 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 section 107(d)(3)(E) of the CAA, and 
thus EPA is not required to consider subpart 4 requirements with 
respect to the redesignation of the Charleston Area. 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 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

[[Page 4125]]

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 West Virginia 
submitted its redesignation requests for both standards, the 
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 redesignation of 
the Charleston Area, the subpart 4 requirements were not due at the 
time West Virginia submitted the redesignation requests is in keeping 
with the EPA's interpretation of subpart 2 requirements for subpart 1 
ozone areas redesignated subsequent to the DC Circuit Court's decision 
in South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 
2006). In South Coast, the DC Circuit 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 
rulemaking 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) of 
the CAA.
    EPA's interpretation derives from the provisions of section 
107(d)(3) of the CAA. 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 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 CAA 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 this redesignation, the timing and nature of the 
D.C. Circuit 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. West Virginia submitted its 
redesignation requests for the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS on December 6, 2012 for Charleston Area, but the 
D.C. Circuit 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 2013.
    To require West Virginia's fully-completed and pending 
redesignation requests for both the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS to comply now with requirements of subpart 4 
that the D.C. Circuit Court announced only in its January, 2013 
decision on the 1997 PM2.5 Implementation Rule, would be to 
give retroactive effect to such requirements when the State had no 
notice that it was required to meet them. The D.C. Circuit Court 
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 
D.C. Circuit Court's ruling refusing to make retroactive EPA's 
determination that the Area did not meet its attainment deadline. In 
that case, petitioners urged the D.C. Circuit 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 D.C. Circuit 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 the State of West 
Virginia by rejecting its redesignation request for an area that is 
already attaining both the 1997 annual and 2006 24-hour 
PM2.5 standards and that met all applicable requirements 
known to be in effect at the time of the requests. For EPA now to 
reject the redesignation requests solely because the State did not 
expressly address

[[Page 4126]]

subpart 4 requirements of which it had no notice, would inflict the 
same unfairness condemned by the D.C. Circuit Court in Sierra Club v. 
Whitman.
---------------------------------------------------------------------------

    \2\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit Court 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 West Virginia Redesignation Requests
    Even if EPA were to take the view that the D.C. Circuit Court's 
January 4, 2013 decision requires that, in the context of pending 
redesignations for either the 1997 annual or 2006 24-hour 
PM2.5 standards, subpart 4 requirements were due and in 
effect at the time West Virginia submitted its redesignation requests, 
EPA proposes to determine that the Charleston Area still qualifies for 
redesignation to attainment for both the 1997 annual and 2006 24-hour 
PM2.5 standards. As explained subsequently, EPA believes 
that the two redesignation requests for the Charleston Area, though not 
expressed in terms of subpart 4 requirements, substantively meet the 
requirements of that subpart for purposes of redesignating the Area to 
attainment for both standards.
    With respect to evaluating the relevant substantive requirements of 
subpart 4 for purposes of redesignating the Charleston 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 coarse particulate 
matter (PM10) \3\ nonattainment areas, and under the D.C. 
Circuit 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, 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 PM10 requirements'' 
(57 FR 13538, April 16, 1992). The subpart 1 requirements include, 
among other things, provisions for attainment demonstrations, RACM, 
RFP, emissions inventories, and contingency measures.
---------------------------------------------------------------------------

    \3\ PM10 refers to particulates nominally 10 
micrometers in diameter or smaller.
---------------------------------------------------------------------------

    For the purposes of these redesignation requests, in order to 
identify any additional requirements which would apply under subpart 4, 
we are considering the Charleston 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. 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.\4\ 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).
---------------------------------------------------------------------------

    \4\ The potential effect of section 189(e) on section 
189(a)(1)(A) for purposes of evaluating this redesignation is 
discussed in this rulemaking action.
---------------------------------------------------------------------------

    With respect to the specific attainment planning requirements under 
subpart 4,\5\ when EPA evaluates a redesignation request under either 
subpart 1 and/or 4, any area that is attaining the PM2.5 
NAAQS 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: 
``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.''
---------------------------------------------------------------------------

    \5\ I.e., attainment demonstration, RFP, RACM, milestone 
requirements, contingency measures.
---------------------------------------------------------------------------

    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 D.C. Circuit 
Circuit Court's January 4, 2013 decision in NRDC v. EPA to mean that 
attainment-related requirements specific to subpart 4 should be imposed 
retroactively \6\ and thus are now past due, those requirements do not 
apply to an area that is attaining the 1997 annual and/or the 2006 24-
hour PM2.5 NAAQS, 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).
---------------------------------------------------------------------------

    \6\ As EPA has explained above, we do not believe that the D.C. 
Circuit Circuit Court's January 4, 2013 decision should be 
interpreted so as to impose these requirements on the states 
retroactively. Sierra Club v. Whitman, supra.

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

[[Page 4127]]

    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 1997 annual and/or the 2006 24-hour PM2.5 
NAAQS. 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.
    Elsewhere in this notice, EPA determined that the Charleston Area 
has attained both the 1997 annual and 2006 24-hour PM2.5 
NAAQS. Under its longstanding interpretation, EPA is proposing to 
determine here that the Area meets the attainment-related plan 
requirements of subparts 1 and 4 for both the 1997 annual and 2006 24-
hour PM2.5 NAAQS. 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)(1) and section 
189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency 
measure requirements under section 172(c)(9) are satisfied for purposes 
of evaluating these redesignation requests.
c. Subpart 4 and Control of PM2.5 Precursors
    The D.C. Circuit Circuit Court 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. EPA in 
this section addresses the D.C. Circuit Circuit Court's opinion with 
respect to PM2.5 precursors. 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, section 189(e) of the CAA 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 Circuit Court, 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 NH3] as . . . PM2.5 
attainment plan precursor[s] and to evaluate sources of VOC [and 
NH3] 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 NH3 in specific areas where that 
was necessary.
    The D.C. Circuit 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 VOCs and 
NH3 are not PM2.5 precursors, as subpart 4 
expressly governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
    Elsewhere in the D.C. Circuit Court's opinion, however, the D.C. 
Circuit Court observed: ``NH3 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 its proposed 
redesignations of the Charleston Area for the 1997 annual and the 2006 
24-hour PM2.5 NAAQS are consistent with the D.C. Circuit 
Court's decision on this aspect of subpart 4. First, while the D.C. 
Circuit Court, citing section 189(e), stated that ``for a 
PM10 area governed by subpart 4, a precursor is 
`presumptively' regulated,'' the D.C. Circuit Court expressly declined 
to decide the specific challenge to EPA's 1997 PM2.5 
Implementation Rule provisions regarding NH3 and VOC as 
precursors. The D.C. Circuit 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 1997 
PM2.5 Implementation Rule's rebuttable presumptions 
regarding NH3 and VOC as PM2.5 precursors (and 
any similar provisions reflected in the guidance for the 2006 24-hour 
PM2.5 NAAQS), 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 
Charleston Area, EPA believes that doing so is consistent with 
proposing redesignation of the Area for the 1997 annual and the 2006 
24-hour PM2.5 NAAQS. The Area has attained both the 1997 
annual and 2006 24-hour PM2.5 NAAQS without any specific 
additional controls of NH3 and VOC and 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.\7\ 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 
NH3 and VOC. Thus we must address here whether additional 
controls of NH3 and VOC from major stationary sources are 
required under section 189(e) of subpart 4 in order to redesignate the 
Area for the 1997 annual and 2006 24-hour PM2.5 NAAQS. As 
explained subsequently, we do not believe that any additional controls 
of NH3 and VOC are required in the context of these 
redesignations.
---------------------------------------------------------------------------

    \7\ 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 VOC under other CAA requirements may suffice to relieve 
a state from the need to adopt precursor controls under section 189(e). 
See 57 FR 13542. EPA in

[[Page 4128]]

this proposal proposes to determine that West Virginia's SIP has met 
the provisions of section 189(e) with respect to NH3 and VOC 
as precursors. This proposed supplemental determination is based on our 
findings that: (1) The Charleston Area contains no major stationary 
sources of NH3; and (2) existing major stationary sources of 
VOC are adequately controlled under other provisions of the CAA 
regulating the ozone NAAQS.\8\ In the alternative, EPA proposes to 
determine that, under the express exception provisions of section 
189(e), and in the context of the redesignations of the Charleston 
Area, which is attaining the 1997 annual and 2006 24-hour 
PM2.5 NAAQS, at present NH3 and VOC precursors 
from major stationary sources do not contribute significantly to levels 
exceeding the 1997 annual or the 2006 24-hour PM2.5 NAAQS in 
the Area. See 57 FR 13539-42.
---------------------------------------------------------------------------

    \8\ The Charleston Area has reduced VOC emissions through the 
implementation of various control programs including VOC Reasonably 
Available Control Technology (RACT) 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 annual or the 2006 24-hour PM2.5 
NAAQS. By contrast, redesignation to attainment primarily requires the 
nonattainment 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 D.C. Circuit Court's January 4, 2013 decision as calling for 
``presumptive regulation'' of NH3 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 West Virginia to 
address precursors differently than it has 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.\9\ Courts have upheld this approach to the requirements of 
subpart 4 for PM10.\10\ EPA believes that application of 
this approach to PM2.5 precursors under subpart 4 is 
reasonable. Because the Charleston Area has already attained both the 
1997 annual and 2006 24-hour 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 D.C. Circuit 
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 West Virginia's 
requests for redesignation of the Charleston Area for the 1997 annual 
and 2006 24-hour PM2.5 NAAQS. In the context of a 
redesignation, the Area has shown that it has attained the standards. 
Moreover, the State has shown and EPA has proposed to determine that 
attainment of both 1997 annual and 2006 24-hour PM2.5 NAAQS 
in this Area is due to permanent and enforceable emissions reductions 
on all precursors necessary to provide for continued attainment of the 
standards. It follows logically that no further control of additional 
precursors is necessary. Accordingly, EPA does not view the January 4, 
2013 decision of the D.C. Circuit Court as precluding redesignation of 
the Charleston Area to attainment for the 1997 annual and the 2006 24-
hour PM2.5 NAAQS at this time. In summary, even if West 
Virginia was required to address precursors for the Charleston Area 
under subpart 4 rather than under subpart 1, as interpreted in EPA's 
remanded 1997 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) of 
the CAA.
---------------------------------------------------------------------------

    \9\ See, e.g., ``Approval and Promulgation of Implementation 
Plans for California--San Joaquin Valley PM10 
Nonattainment Area; Serious Area Plan for Nonattainment of the 24-
Hour and Annual PM10 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 NH3 
emissions).
    \10\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------

V. EPA's Analysis of West Virginia's Submittal

    EPA is proposing several rulemaking actions for Charleston Area: 
(1) To redesignate Charleston Area to attainment for both the 1997 
annual and the 2006 24-hour PM2.5 NAAQS; and (2) to approve 
into the West Virginia SIP the associated maintenance plans for both 
the 1997 annual and 2006 24-hour PM2.5 NAAQS. EPA is also 
proposing in this rulemaking action to approve the 2008 comprehensive 
emissions inventory to satisfy section 172(c)(3) requirement for the 
2006 24-hour PM2.5 NAAQS, one of the criteria for 
redesignation. EPA's proposed approvals of the redesignation requests 
and maintenance plans for the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS are based upon EPA's determination that the Area 
continues to attain both standards, which EPA is proposing in this 
rulemaking action, and that all other redesignation criteria have been 
met for the Charleston Area. The following is a description of how the 
WVDEP December 6, 2012 submittal and a supplemental submittal on June 
24, 2013 satisfies the requirements of section 107(d)(3)(E) of the CAA 
for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

A. Requests for Redesignation

1. Attainment
    As noted previously, in the final rulemaking action dated October 
11, 2011 (76 FR 62640), EPA determined that the Charleston Area has 
attained the 1997 annual PM2.5 NAAQS. This determination of 
attainment was based upon complete, quality-assured and certified 
ambient air quality monitoring data for the period of 2007-2009 showing 
that the Area had attained the 1997 annual PM2.5 NAAQS by 
its applicable attainment date of April 5, 2010. On November 18, 2011 
(76 FR 71450), EPA determined that the Charleston Area had a clean data 
for the 2006 24-hour PM2.5 NAAQS. The determination was 
based upon complete, quality assured, and certified ambient air 
monitoring date showing that this Area has monitored attainment of the 
2006 24-hour PM2.5 NAAQS based on the 2007-2009 data and 
data available to date for 2010 in EPA's Air Quality System (AQS) 
database. Further discussion of pertinent air quality issues underlying 
this determination was provided in the notice of proposed rulemakings 
for EPA's determination of attainment for this Area, published on July 
15, 2011 (76 FR 41739) for the 1997 annual PM2.5 NAAQS and 
August 19,

[[Page 4129]]

2011 (76 FR 51927) for the 2006 24-hour PM2.5 NAAQS.
    EPA has reviewed the ambient air quality PM2.5 
monitoring data in the Charleston Area consistent with the requirements 
contained at 40 CFR part 50, and recorded in EPA's AQS database. To 
support the previous determinations of attainment of the Area, EPA has 
also reviewed more recent data in its AQS database, including 
certified, quality-assured data for the period from 2008-2010, 2009-
2011 and 2010-2012. This data, shown in Table 1, shows that the 
Charleston Area continues to attain the 1997 annual and the 2006 24-
hour PM2.5 NAAQS. In addition, as discussed subsequently 
with respect to the maintenance plan, WVDEP has committed to continue 
monitoring ambient PM2.5 concentrations in accordance with 
40 CFR part 58. Thus, EPA is proposing to determine that the Charleston 
Area continues and attain the 1997 and the 2006 24-hour 
PM2.5 NAAQS.

 Table 1--Design Values for the Charleston Area for the 1997 Annual and the 2006 24-hour PM2.5 NAAQS ([mu]g/m\3\) for 2008-2010, 2009-2011 and 2010-2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               3-Year design values
                                                         -----------------------------------------------------------------------------------------------
         Monitor ID (located in Kanawha County)                                                                              2010-2012       2010-2012
                                                          2008-2010 1997  2008-2010 2006  2009-2011 1997  2009-2011 2006    1997 annual    2006 24-hour
                                                           annual  PM2.5  24-hour  PM2.5   annual  PM2.5  24-hour  PM2.5       PM2.5           PM2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
540390010...............................................            11.8              25            11.0              24            10.7              23
540390005...............................................            13.2              28            12.5              26            11.9              24
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. The Area Has Met All Applicable Requirements Under Section 110 and 
Subpart 1 of the CAA and Has a Fully Approved SIP Under Section 110(k) 
of the CAA
    In accordance with section 107(d)(3)(E)(v) of the CAA, the SIP 
revisions for the 1997 annual and 2006 24-hour PM2.5 NAAQS 
for the Charleston Area must be fully approved under section 110(k) of 
the CAA and all the requirements applicable to the Area under section 
110 of the CAA (general SIP requirements) and part D of Title I of the 
CAA (SIP requirements for nonattainment areas) must be met.
a. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 
110(a)(2) of the CAA include, but are not limited to the following: (1) 
Submittal of a SIP that has been adopted by the state after reasonable 
public notice and hearing; (2) provisions for establishment and 
operation of appropriate procedures needed to monitor ambient air 
quality; (3) implementation of a source permit program; provisions for 
the implementation of Part C requirements PSD; (4) provisions for the 
implementation of Part D requirements for NSR permit programs; (5) 
provisions for air pollution modeling; and (6) provisions for public 
and local agency participation in planning and emission control rule 
development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain certain 
measures to prevent sources in a state from significantly contributing 
to air quality problems in another state. To implement this provision, 
EPA has required certain states to establish programs to address the 
interstate transport of air pollutants in accordance with the 
NOX SIP Call (63 FR 57356, October 27, 1998), amendments to 
the NOX SIP Call (64 FR 26298, May 14, 1999 and 65 FR 11222, 
March 2, 2000), and CAIR (70 FR 25162, May 12, 2005). However, section 
110(a)(2)(D) of the CAA requirements for a state are not linked with a 
particular nonattainment area's designation and classification in that 
state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classifications are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state. Thus, EPA does not believe that these requirements 
are applicable requirements for purposes of redesignation.
    In addition, EPA believes that the other section 110(a)(2) elements 
of the CAA not connected with nonattainment plan submissions and not 
linked with an area's attainment status are not applicable requirements 
for purposes of redesignation. The Charleston Area will still be 
subject to these requirements after it is redesignated. EPA concludes 
that the section 110(a)(2) of the CAA and part D requirements which are 
linked with a particular area's designation and classification are the 
relevant measures to evaluate in reviewing a redesignation request, and 
that section 110(a)(2) elements of the CAA not linked in the area's 
nonattainment status are not applicable for purposes of redesignation. 
This approach is consistent with EPA's existing policy on applicability 
of conformity (i.e., for redesignations) and oxygenated fuels 
requirement. See Reading, Pennsylvania, proposed and final rulemakings 
(61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-
Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and 
Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995). See 
also the discussion on this issue in the Cincinnati, Ohio redesignation 
(65 FR 37890, June 19, 2000) and in the Pittsburgh, Pennsylvania 
redesignation (66 FR 53099, October 19, 2001).
    EPA has reviewed the West Virginia SIP and has concluded that it 
meets the general SIP requirements under section 110(a)(2) of the CAA 
to the extent they are applicable for purposes of redesignation. EPA 
has previously approved provisions of West Virginia's SIP addressing 
section 110(a)(2) requirements, including provisions addressing 
PM2.5. See (76 FR 47062, August 4, 2011). These requirements 
are, however, statewide requirements that are not linked to the 
PM2.5 nonattainment status of the Charleston Area. 
Therefore, EPA believes that these SIP elements are not applicable 
requirements for purposes of review of West Virginia's PM2.5 
redesignation requests.
b. Subpart 4 Requirements
    Subpart 1sets forth the basic nonattainment plan requirements 
applicable to PM2.5 nonattainment areas. Under section 172 
of the CAA, states

[[Page 4130]]

with nonattainment areas must submit plans providing for timely 
attainment and meet a variety of other requirements.
    The General Preamble for Implementation of Title I discusses the 
evaluation of these requirements in the context of EPA's consideration 
of a redesignation request. The General Preamble sets forth EPA's view 
of applicable requirements for purposes of evaluating redesignation 
requests when an area is attaining the standard. See (57 FR 13498, 
April 16, 1992).
    As noted previously, EPA has determined that the Charleston Area 
has attained both the 1997 annual and 2006 24-hour PM2.5 
NAAQS. Pursuant to 40 CFR 51.2004(c), the requirement for West Virginia 
to submit for the Charleston Area an attainment demonstration and 
associated RACM, an RFP plan, contingency measures, and other planning 
SIPs related to the attainment of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS are suspended until the Area is redesignated to 
attainment for each standard, or EPA determines that the Area again 
violated any of the standards, at which time such plans are required to 
be submitted. Since the attainment has been reached for the Area for 
the 1997 annual and 2006 24-hour PM2.5 NAAQS and continues 
to attain both standards, no additional measures are needed to provide 
for attainment. Therefore, the requirements of sections 172(c)(1), 
172(c)(2), 172(c)(6), and 172(c)(9) of the CAA are no longer considered 
to be available for purposes of redesignation of the Area for both 
standards.
    Section 172(c)(3) of the CAA requires submission and approval of a 
comprehensive, accurate and current inventory of actual emissions. As a 
result of EPA's determinations of attainment of the Area for the 1997 
annual and 2006 24-hour PM2.5 NAAQS, in which certain 
planning requirements were suspended for both standards, the only 
remaining requirement under section 172 of the CAA to be considered for 
purposes of redesignation of the Area is the comprehensive emissions 
inventory required under section 172(c)(3) of the CAA. As part of West 
Virginia's attainment plan submittal, the State submitted a 2002 
emissions inventory for the Charleston Area for the 1997 annual 
PM2.5 NAAQS on November 4, 2009 which includes emissions 
estimates that cover the general source categories of point sources, 
nonroad mobile sources, area sources and on-road mobile sources. The 
pollutants that comprise the inventory are NOX, VOCs, 
PM2.5, NH3, and SO2. On December 12, 
2012 (77 FR 73923), EPA approved the 2002 emissions inventory for the 
1997 annual PM2.5 NAAQS.
    The December 6, 2012 submittal included the 2008 comprehensive 
emissions inventory for the 2006 24-hour PM2.5 NAAQS. The 
2008 emissions inventory includes direct PM, NOX and 
SO2. See Tables 2 and 3 in this document. On June 24, 2013, 
West Virginia supplemented its submittal with the 2008 emission 
inventories for NH3 and VOC for the 2006 24-hour 
PM2.5 NAAQS. The additional emission inventories information 
provided by the State addresses emissions of NH3 and VOC 
from the general source categories of point sources, area sources, 
onroad mobile sources, and nonroad sources. See Tables 2 and 3 in this 
document. The state-submitted inventories were based on the data that 
West Virginia certified and submitted to the 2008 National Emissions 
Inventory (NEI) that is available at https://www.epa.gov/ttn/chief/net/2008inventory.html. The NEI is a comprehensive and detailed estimate of 
air emissions of both criteria and hazardous air pollutants from all 
air emissions sources. The NEI is prepared every three years by EPA 
based primarily upon emission estimates and emission model inputs 
provided by State, Local and Tribal air agencies.
    The NEI point data category contains emission estimates for sources 
that are individually inventory and located at a fixed, stationary 
location. Point sources include large industrial facilities and 
electric power plants. The NEI nonpoint data category contains 
emissions estimates for sources which individually are too small in 
magnitude or too numerous to inventory as individual point sources. The 
NEI onroad and nonroad data categories contain mobile sources which are 
estimated for the 2008 NEI version 3 via the MOVES2010b and NONROAD 
models, respectively. NONROAD was run within the National Mobile 
Inventory Model (NMIM).

         Table 2--Kanawha County, Charleston Area 2008 Emissions in tons per year (tpy) by Source Sector
----------------------------------------------------------------------------------------------------------------
             Sector                  Direct PM          NOX             SO2             NH3             VOC
----------------------------------------------------------------------------------------------------------------
Point...........................             792          10,222          20,018              15           1,850
Area............................           1,658             786             977              86           2,786
Nonroad.........................             262           5,679             263               1           1,818
Onroad..........................             214           6,729              47             278           3,385
                                 -------------------------------------------------------------------------------
    Total.......................           2,926          23,415          21,307             380           9,839
----------------------------------------------------------------------------------------------------------------


                  Table 3--Putman County, Charleston Area 2008 Emissions (tpy) by Source Sector
----------------------------------------------------------------------------------------------------------------
             Sector                  Direct PM          NOX             SO2             NH3             VOC
----------------------------------------------------------------------------------------------------------------
Point...........................           3,710          13,452          93,535               4             311
Area............................             608             186             202              48             752
Nonroad.........................             100           2,725             141               0             261
Onroad..........................              54           1,609              12              61             710
                                 -------------------------------------------------------------------------------
    Total.......................           4,477          17,972          93,891             113           2,034
----------------------------------------------------------------------------------------------------------------

    EPA is proposing to approve the 2008 NH3, VOC, 
NOX, PM2.5, and SO2 emissions 
inventory submitted by West Virginia for the 2006 24-hour 
PM2.5 NAAQS. For more information on EPA's analysis of the 
2008 emissions inventory, see Appendix B of the State submittal and 
EPA's emissions inventory technical support document (TSD) dated August 
29, 2013, available in the docket for this rulemaking action at 
www.regulations.gov. Docket ID No.

[[Page 4131]]

EPA-OAR-RO3-2013-0090. Final approval of the 2008 emissions inventory 
will satisfy the emissions inventory requirement of section 172(c)(3) 
of the CAA for the 2006 24-hour PM2.5 NAAQS.
    Section 172(c)(4) of the CAA requires the identification and 
quantification of allowable emissions for major new and modified 
stationary sources in an area, and section 172(c)(5) of the CAA 
requires source permits for the construction and operation of new and 
modified major stationary sources anywhere in the nonattainment area. 
EPA has determined that, since the PSD requirements will apply after 
redesignation, areas being redesignated need not comply with the 
requirement that a nonattainment NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
NAAQS without part D NSR. A more 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.'' Nevertheless, West Virginia currently has an approved NSR 
program, codified in 45 CFR 19. See (71 FR 64468 November 2, 2006) 
(approving NSR program into the SIP). See also (77 FR 63736, October 
17, 2012) (approving revisions to West Virginia's PSD program). 
However, West Virginia's PSD program for the 1997 annual 
PM2.5 NAAQS will become effective in the Charleston Area 
upon redesignation to attainment.
    Section 172(c)(7) of the CAA requires the SIP to meet the 
applicable provisions of section 110(a)(2) of the CAA. As noted 
previously, EPA believes the West Virginia SIP meets the requirements 
of section 110(a)(2) of the CAA that are applicable for purposes of 
redesignation.
    Section 175A of the CAA requires a state seeking redesignation to 
attainment to submit a SIP revision to provide for the maintenance of 
the NAAQS in the area ``for at least 10 years after the 
redesignation.'' In conjunction with its request to redesignate the 
Charleston Area to attainment status, West Virginia submitted SIP 
revisions to provide for maintenance of the 1997 annual and 2006 24-
hour PM2.5 NAAQS in the Charleston Area for at least 10 
years after redesignation, throughout 2025. West Virginia is requesting 
that EPA approve this SIP revision as meeting the requirement of 
section 175A of the CAA. Once approved, the maintenance plans for the 
Charleston Area will ensure that the SIP for West Virginia meets the 
requirements of the CAA regarding maintenance of the 1997 annual and 
2006 24-hour PM2.5 NAAQS for the Charleston Area. EPA's 
analysis of the maintenance plans is provided in section V.B of this 
document.
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects developed, funded or approved under Title 23 of 
the United States Code (U.S.C.) and the Federal Transit Act 
(transportation conformity) as well as to all other Federally supported 
or funded projects (general conformity). State transportation 
conformity SIP revisions must be consistent with Federal conformity 
regulations relating to consultation, enforcement and enforceability 
which EPA promulgated pursuant to its authority under the CAA. EPA 
interprets the conformity SIP requirements as not applying for purposes 
of evaluating the redesignation request under section 107(d) of the CAA 
because state conformity rules are still required after redesignation 
and Federal conformity rules apply where state rules have not been 
approved. See Wall v. EPA, 265 F.3d 426, (6th Cir. 2001) (upholding 
this interpretation). See also (60 FR 62748, December 7, 1995) 
(discussing Tampa, Florida).
    Thus, for purposes of redesignating to attainment the Charleston 
Area for the 1997 annual PM2.5 NAAQS, EPA determines that 
the Area has met all applicable SIP requirements under part D of Title 
I of the CAA. EPA also determines that upon final approval of the 2008 
comprehensive emissions inventory as proposed in this rulemaking 
action, the Charleston Area will also meet all applicable SIP 
requirements under part D of Title I of the CAA for purposes of 
redesignating the Area to attainment for the 2006 24-hour 
PM2.5 NAAQS.
    c. The Charleston Area Has a Fully Approved Applicable SIP Under 
Section 110(k) of the CAA
    For purposes of redesignation to attainment for the 1997 annual 
PM2.5 NAAQS, EPA has fully approved all applicable 
requirements of the West Virginia SIP for the Area in accordance with 
section 110(k) of the CAA. Upon final approval of the 2008 
comprehensive emissions inventory proposed in this rulemaking action, 
EPA will have fully SIP-approved all applicable requirements of the 
West Virginia SIP for the Area for purposes of redesignaton to 
attainment for the 2006 24-hour PM2.5 NAAQS in accordance 
with section 110(k) of the CAA.
3. Permanent and Enforceable Reductions in Emissions
    For redesignating a nonattainment area to attainment, section 
107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air 
quality improvement in the area is due to permanent and enforceable 
reductions in emissions resulting from implementation of the SIP and 
applicable Federal air pollution control regulations and other 
permanent and enforceable reductions. EPA believes that West Virginia 
has demonstrated that the observed air quality improvement in the Area 
is due to permanent and enforceable reductions in emissions resulting 
from implementation of the SIP, Federal measures, and other state-
adopted measures. In making this demonstration, West Virginia has 
calculated the change in emissions between 2005, one of the years used 
to designate the Area as nonattainment, and 2008, one of the years the 
Area monitored attainment as provided in Table 4. The reduction in 
emissions and the corresponding improvement in air quality over this 
time period can be attributed to a number of regulatory control 
measures that the Area and contributing areas have implemented in 
recent years. For more information on EPA's analysis of the 2005 and 
2008 emissions inventory, see EPA's emissions inventory TSD dated 
August 29, 2013, available in the docket for this rulemaking action at 
www.regulations.gov. Docket ID No. EPA-OAR-RO3-2013-0090.

     Table 4--Comparison of 2005 Base Year and 2008 Attainment Year Reductions in tpy in the Charleston Area
----------------------------------------------------------------------------------------------------------------
                                                                       2005            2008          Decrease
----------------------------------------------------------------------------------------------------------------
EGU NOX.........................................................          38,226          17,555          20,671

[[Page 4132]]

 
EGU PM2.5.......................................................           4,802           4,359             443
EGU SO2.........................................................         125,276         108,959          16,317
Onroad NOX......................................................          10,776           8,337           2,439
Onroad PM2.5....................................................             351             268              83
Onroad SO2......................................................             214              59             155
Nonroad NOX.....................................................             973             897              76
Nonroad PM2.5...................................................             119             113               6
Nonroad SO2.....................................................              76              14              62
----------------------------------------------------------------------------------------------------------------

    a. Federal Measures Implemented
    Reductions in PM2.5 precursor emissions have occurred 
statewide and in upwind states as a result of Federal emission control 
measures, with additional emission reductions expected to occur in the 
future. The Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards (Tier 2 Standards) have resulted in lower NOX and 
SO2 emissions from new cars and light duty trucks, including 
sport utility vehicles. The Federal rules were phased in between 2004 
and 2009. EPA has estimated that, after phasing in the new 
requirements, new vehicles emit less NOX in the following 
percentages: Passenger cars (light duty vehicles)--77 percent; light 
duty trucks, minivans, and sports utility vehicles--86 percent; and 
larger sports utility vehicles, vans, and heavier trucks--69-95 
percent. EPA expects fleet wide average emissions to decline by similar 
percentages as new vehicles replace older vehicles. The Tier 2 
standards also reduced the sulfur content of gasoline to 30 parts per 
million (ppm) beginning in January 2006, which reflects up to a 90 
percent reduction in sulfur content.
    EPA issued the Heavy-Duty Diesel Engine Rule in July 2000. This 
rule includes standards limiting the sulfur content of diesel fuel, 
which went into effect in 2004. A second phase took effect in 2007 
which reduced PM2.5 emissions from heavy-duty highway 
engines and further reduced the highway diesel fuel sulfur content to 
15 ppm. The total program is estimated to achieve a 90 percent 
reduction in direct PM2.5 emissions and a 95 percent 
reduction in NOX emissions for these new engines using low 
sulfur diesel, compared to existing engines using higher sulfur diesel 
fuel. The reduction in fuel sulfur content also yielded an immediate 
reduction in particulate sulfate emissions from all diesel vehicles.
    In May 2004, EPA promulgated the Nonroad Diesel Rule for large 
nonroad diesel engines, such as those used in construction, 
agriculture, and mining, to be phased in between 2008 and 2014. The 
rule also reduces the sulfur content in nonroad diesel fuel by over 99 
percent. Prior to 2006, nonroad diesel fuel averaged approximately 
3,400 ppm sulfur. This rule limited nonroad diesel sulfur content to 
500 ppm by 2006, with a further reduction to 15 ppm by 2010.
b. State and Local Measures
    The Area's air quality is strongly affected by regulation of 
SO2 and NOX from power plants. EPA promulgated 
the NOX SIP Call, CAIR and CASPR to address SO2 
and NOX emissions from EGUs and certain non-EGUs across the 
eastern United States. The affected EGUs in the Charleston Area are 
located at the Appalachian Power--Kanawha River Plant in Kanawha County 
and Appalachian Power--John E. Amos Plant in Putnam County. EPA issued 
the NOX SIP Call in 1998 pursuant to the CAA to require 22 
states and the District of Columbia to reduce NOX emissions 
from large EGUs and large non-EGUs such as industrial boilers, internal 
combustion engines, and cement kilns. See (63 FR 57356, October 27, 
1998). EPA approved West Virginia's Phase I NOX SIP Call 
rule on May 10, 2002 (67 FR 31733) and Phase II rule on September 28, 
2006 (71 FR 56881). Emission reductions resulting from regulations 
developed in response to the NOX SIP Call are permanent and 
enforceable.
    On March 10, 2005, EPA issued CAIR, which applies to 27 states and 
the District of Columbia. CAIR relied on 3 separate cap-and-trade 
programs to reduce SO2 and NOX emissions. On 
August 4, 2009 (74 FR 38536), EPA approved West Virginia's CAIR rules 
into the West Virginia SIP. The maintenance plans for the Area for both 
1997annual and 2006 24-hour PM2.5 NAAQS, thus, list CAIR as 
a control measure for the purpose of reducing SO2 and 
NOX emissions from EGUs.
    On August 8, 2011 (76 FR 48208), EPA promulgated CSAPR to replace 
CAIR, which has been in place since 2005. The D.C. Circuit Court 
initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), but ultimately remanded the rule to EPA without vacatur to 
preserve the environmental benefits provided by CAIR, North Carolina v. 
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 21, 2012, the D.C. 
Circuit Court issued a decision to vacate CSAPR. In that decision, it 
also ordered EPA to continue administering CAIR ``pending the 
promulgation of a valid replacement.'' EME Homer City, 696 F.3d at 38. 
EPA and other parties have filed petitions for certiorari to the U.S. 
Supreme Court, and on June 24, 2013, the Supreme Court granted 
certiorari on EPA's petition for appeal of EME Homer City Generation. 
See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 
2012), cert. granted, 570 U.S.--(2013). Nonetheless, EPA intends to 
continue to act in accordance with the EME Homer City opinion.
    As noted earlier, EPA believes it is appropriate to allow states to 
rely on the existing emissions reductions achieved by CAIR, as 
sufficiently permanent and enforceable pending a valid replacement 
rule, for purposes such as a redesignation. CAIR was in place and thus 
getting emission reductions when the Charleston Area monitored 
attainment of the 1997 annual and 2006 24-hour PM2.5 NAAQS. 
The monitoring data used to demonstrate the Area's attainment of the 
1997 annual and 2006 24-hour PM2.5 NAAQS was impacted by 
CAIR. EPA finds West Virginia appropriately included CAIR as a control 
measure in this SIP revision.
    Furthermore, EGUs in this Area are subject to Federal consent 
decrees that have reduced emissions of NOX and 
SO2 in the Area. There are two EGUs in the Charleston Area, 
namely, Appalachian Power, Kanawha River Plant in Kanawha County; and 
Appalachian Power, John E. Amos Plant in Putnam County. As part of a 
Federally enforceable consent decree, the Kanawha River Plant was 
required, on the date of entry, to operate low NOX burners 
continuously to control

[[Page 4133]]

emissions of NOX and also on the date of entry, units can 
only burn coal with sulfur content no greater than 1.75 lb/one million 
British Thermal Unit (mmBTU) on an annual average basis to reduce 
SO2 emissions. Since 2008, additional controls have and will 
be installed on EGUs within the Area which will continue to contribute 
to the reductions in precursor pollutants for PM2.5. Table 5 
provides the reductions from EGUs in the Area from 2005 and 2008. EPA 
believes that West Virginia has adequately demonstrated that the 
improvement in air quality in Charleston Area is due to permanent and 
enforceable emissions reductions resulting from implementation of the 
SIP, Federal measures, and other State-adopted measures.

                     Table 5--Summary of Reductions from EGUs in the Charleston Area, in tpy
----------------------------------------------------------------------------------------------------------------
                                                                       2005            2008         Reductions
----------------------------------------------------------------------------------------------------------------
SO2.............................................................         125,276         108,959          16,317
NOX.............................................................          38,226          17,555          20,671
PM2.5...........................................................           4,802           4,359             443
----------------------------------------------------------------------------------------------------------------

B. Maintenance Plans

    On December 6, 2012, WVDEP submitted maintenance plans for the 
Charleston Area for the 1997 annual and 2006 24-hour PM2.5 
NAAQS as required by section 175A of the CAA. EPA's analysis for 
proposing approval of the maintenance plans are provided in this 
section.
1. Attainment Emissions Inventory
    An attainment inventory is comprised of the emissions during the 
time period associated with the monitoring data showing attainment. 
WVDEP developed emissions inventories for NOX, direct 
PM2.5, and SO2 for 2008, one of the years in the 
period during which the Charleston Area monitored attainment of the 
1997 annual PM2.5 standard, as described previously. The 
2008 point source inventory contained emissions for EGUs and non-EGU 
sources in Kanawha and Putnam Counties in West Virginia. WVDEP used the 
2008 annual emissions inventory submitted to EPA's NEI database and 
EPA's Clean Air Markets Division (CAMD) database to compile their 
inventory. For the 2008 area source emissions, WVDEP used the 2008 NEI 
v1.5 data developed by EPA. For the 2008 nonroad mobile sources, WVDEP 
generated the emissions using EPA's NONROAD model. The 2008 onroad 
mobile source inventory was developed using the most current version of 
EPA's highway mobile source emissions model MOVES2010a. WVDEP used the 
Kentucky, Ohio, and West Virginia (KYOVA) Travel Demand Model, which is 
the most recent travel demand model provided by the KYOVA Interstate 
Planning Commission that covers the nonattainment counties in West 
Virginia. Information from the travel demand model combined with 
Highway Performance Monitoring Systems (HPMS) county-level data from 
each area were used in the emissions analysis. Additional data needed 
for input into the MOVES2010a model was provided by the Ohio Department 
of Transportation (ODOT), Ohio EPA, West Virginia Department of 
Transportation (WVDOT), WVDEP, Kentucky Transportation Cabinet (KYTC), 
and the Kentucky Division of Air Quality (KDAQ).
    EPA has reviewed the documentation provided by WVDEP and found the 
emissions inventory to be acceptable. For more information on EPA's 
analysis of the 2008 emissions inventory, see Appendix B of the State 
submittal and the emissions inventory TSD dated August 29, 2013, 
available on line at www.regulations.gov, Docket ID No. EPA-OAR-R03-
2013-0090.
2. Maintenance Demonstration
    Section 175A requires a state seeking redesignation to attainment 
to submit a SIP revision to provide for the maintenance of the NAAQS in 
the area ``for at least 10 years after the redesignation.'' EPA has 
interpreted this as a showing of maintenance ``for a period of ten 
years following redesignation.'' Where the emissions inventory method 
of showing maintenance is used, its purpose is to show that emissions 
during the maintenance period will not increase over the attainment 
year inventory. See 1992 Calcagni Memorandum, pages 9-10.
    For a demonstration of maintenance, emissions inventories are 
required to be projected to future dates to assess the influence of 
future growth and controls; however, the maintenance demonstration need 
not be based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA, 
supra. See also 66 FR 53099-53100; 68 FR 25430-32. WVDEP uses 
projection inventories to show that the Area will remain in attainment 
and developed projection inventories for an interim year of 2018 and a 
maintenance plan end year of 2025 to show that future emissions of 
NOX, SO2, and direct PM2.5 will remain 
at or below the attainment year 2008 emissions levels throughout the 
Charleston Area through the year 2025.
    The projection inventories for the 2018 and 2025 point, area, and 
nonroad sources were based on the 2012 and 2018 Visibility Improvement 
State and Tribal Association of the Southeast (VISTAS)/Association of 
Southeastern Integrated Planning (ASIP) modeling inventory. West 
Virginia developed the 2018 point source inventory by interpolation 
between VISTAS/ASIP 2012 and 2018 modeling inventory. The 2025 EGU 
inventory for PM2.5, NOX, and SO2 was 
kept the same as the VISTAS/ASIP 2018 inventory. The 2025 non-EGU 
inventory was extrapolated from the 2012 and 2018 inventory. Point 
source emissions for 2012 and 2018 were developed for EGUs and non-
EGUs. For EGUs, WVDEP used the projection inventory developed by 
VISTAS/ASIP. VISTAS/ASIP analysis was based on EPA's Integrated 
Planning Model (IPM). The VISTAS/ASIP analysis projected future year 
emissions for EGUs under several scenarios based on the best 
information available at the time of the analysis. WVDEP used the ``on 
the way'' (OTW) projections, which took into account the reductions 
required by CAIR, as a basis for 2012 and 2018 EGU emissions. VISTAS/
ASIP used EPA's Economic Growth Analysis System (EGAS), Version 4.0 to 
make the projections for non-EGUs, incorporating the growth factors 
suggested in the reports entitled, ``Development of Growth Factors for 
Future Year Modeling Inventories (April 30, 2004)'' and ``CAIR Emission 
Inventory Overview (July 23, 2004).'' EPA has reviewed the 
documentation provided by WVDEP and found the methodologies acceptable.
    Area source emissions for 2018 were interpolated from the VISTAS/
ASIP 2012 and 2018 inventories. The 2025 emissions were extrapolated 
from the VISTAS/ASIP 2012 and 2018 inventories. Growth and controls for 
emissions were based on the

[[Page 4134]]

methodologies applied by EPA for the CAIR analysis. Nonroad source 
emissions, including aircraft, locomotives, and commercial marine 
vessels (CMV) for 2018 were interpolated from the VISTAS/ASIP 2012 and 
2018 inventories. CMV source emissions from SO2 included in 
the 2025 inventory were held constant at 2018 levels because no further 
reduction in fuel sulfur content is expected. All other nonroad source 
emissions for 2025 were extrapolated from the VISTAS/ASIP 2012 and 2018 
inventories. The 2018 and 2025 onroad mobile source emissions were 
prepared using MOVES2010a following the same procedure as the 2008 
inventory as described previously. EPA has determined that the 
emissions inventories discussed above as provided by WVDEP are 
approvable. For more information on EPA's analysis of the emissions 
inventory, see Appendix B of the State submittal and EPA's TSD dated 
August 29, 2013, available on line at www.regulations.gov, Docket ID 
No. EPA-OAR-R03-2013-0090. Table 6 provides the inventories for the 
2008 attainment year, the 2018 interim year, and the 2025 maintenance 
plan end year for the Area.

 Table 6--Comparison of 2008, 2018, and 2025 SO2, NOX, and Direct PMEmission Totals for the Charleston Area (in
                                                      tpy)
----------------------------------------------------------------------------------------------------------------
                                                                        SO2             NOX            PM2.5
----------------------------------------------------------------------------------------------------------------
2008 (attainment)...............................................         115,198          41,387           7,403
2018 (interim)..................................................          23,535          28,331           5,929
2018 (projected decrease).......................................          91,663          13,056           1,474
2025 (maintenance)..............................................          23,694          27,291           5,869
2025 (projected decrease).......................................          91,504          14,907           1,534
----------------------------------------------------------------------------------------------------------------

    Table 6 shows that between 2008 and 2018, the Area is projected to 
reduce SO2 emissions by 91,663 tpy, NOX emissions 
by 13,056 tpy, and direct PMemissions by 1,474 tpy. Between 2008 and 
2025, the Area is projected to reduce SO2 emissions by 
91,504 tpy, NOX emissions by 14,907 tpy, and direct 
PM2.5 emissions by 1,534 tpy. Thus, the projected emissions 
inventories show that the Area will continue to maintain the 1997 
annual and 2006 PM2.5 NAAQS during the 10 year maintenance 
period.
3. Monitoring Network
    West Virginia's maintenance plans include a commitment to continue 
to operate its EPA-approved monitoring network, as necessary to 
demonstrate ongoing compliance with the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. West Virginia currently operates two 
PM2.5 monitors in the Charleston Area. These monitors are 
located in Kanawha County and operated by the West Virginia Division of 
Air Quality. West Virginia will consult with EPA prior to making any 
necessary changes to the network and will continue to quality assure 
the monitoring data in accordance with the requirements of 40 CFR part 
58.
4. Verification of Continued Attainment
    To provide for tracking of the emission levels in the Area, WVDEP 
requires major point sources to submit air emissions information 
annually and prepares a new periodic inventory for all PM2.5 
precursors every three years in accordance with EPA's Air Emissions 
Reporting Requirements (AERR). Emissions information will be compared 
to the attainment year inventory (2008) to assure continued attainment 
with the 1997 annual and 2006 24-hour PM2.5 NAAQS and will 
used to assess emissions trends, as necessary.
5. Contingency Measures
    The contingency plan provisions are designed to promptly correct a 
violation of either the 1997 annual or the 2006 24-hour 
PM2.5 NAAQS that occurs in the Area after redesignation. 
Section 175A of the CAA requires that a maintenance plan include such 
contingency measures as EPA deems necessary to ensure that a state will 
promptly correct a violation of the NAAQS that occurs after 
redesignation. The maintenance plan should identify the events that 
would ``trigger'' the adoption and implementation of a contingency 
measure(s), the contingency measure(s) that would be adopted and 
implemented, and the schedule indicating the time frame by which the 
state would adopt and implement the measure(s).
    West Virginia's maintenance plans outline the procedures for the 
adoption and implementation of contingency measures to further reduce 
emissions should a violation occur. West Virginia's contingency 
measures include a warning level response and an action level response. 
An initial warning level response is triggered for the 1997 annual 
PM2.5 NAAQS when the average weighted annual mean for a 
single calendar year exceeds 15.5 [mu]g/m\3\ within the Charleston 
Area. An initial warning level response is triggered for the 2006 24-
hour PM2.5 NAAQS when the 98th percentile 24-hour 
PM2.5 concentration for a single calendar year exceeds 35.5 
[mu]g/m\3\ within the Area. In the case of triggering a warning level, 
a study will be conducted to determine if the emissions trends show 
increasing concentrations of PM2.5, and whether this trend, 
if any, is likely to continue. If it is determined through the study 
that action is necessary to reverse emissions increases, West Virginia 
will follow the same procedures for control selection and 
implementation as for an action level response, and implementation of 
necessary controls will take place as expeditiously as possible, but no 
later than 12 months from the end of the most recent calendar year.
    For the 1997 annual PM2.5 NAAQS, the action level 
response will be prompted by any one of the following: (1) A warning 
level response study showing emissions increases; (2) a two-year 
average of the weighted annual mean of 15.0 [mu]g/m\3\or greater occurs 
within the Area; or (3) a violation of the standard in the Area (i.e., 
a three-year average of the weighted annual means of 15.0 [mu]g/m\3\ or 
greater). For the 2006 24-hour PM2.5 NAAQS, the action level 
response will be prompted by the following: (1) A warning level 
response study showing emissions increases; (2) a two-year average of 
the 98th percentile of 35 [mu]g/m\3\ or greater within the area; or (3) 
a violation of the standard in Area (i.e., a three-year average of the 
98th percentile of 35 [mu]g/m\3\ or greater). If an action level 
response is triggered for any of the standards, West Virginia will 
adopt and implement appropriate control measures within 18 months from 
the end of the year in which monitored air quality triggering a 
response occurs. West Virginia will also consider whether additional 
regulations that are not a part of the maintenance plan can be 
implemented in a timely manner to respond to the trigger.

[[Page 4135]]

    West Virginia commits to adopt and expeditiously implement the 
necessary corrective actions. West Virginia's potential contingency 
measures include the following: (1) Diesel reduction emission 
strategies, (2) alternative fuels and diesel retrofit programs for 
fleet vehicle operations, (3) tighter PM2.5, SO2, 
and NOX emissions offsets for new and modified major 
sources, (4) concrete manufacturing controls, and (5) additional 
NOX reductions. Additionally, West Virginia has identified a 
list of sources that could potentially be controlled, which include the 
following: Industrial, commercial and institutional (ICI) boilers for 
SO2 and NOX controls, EGUs, process heaters, 
internal combustion engines, combustion turbines, other sources greater 
than 100 tpy, fleet vehicles, and aggregate processing plants.
6. EPA's Evaluation of VOC and NH3 Precursors in West 
Virginia's Maintenance Plans
    With regard to the redesignation of the Charleston Area in 
evaluating the effect of the DC Circuit Court's remand of EPA's 1997 
PM2.5 Implementation Rule, which included presumptions 
against consideration of VOC and NH3 as PM2.5 
precursors, EPA in this proposal is also considering the impact of the 
decision on the maintenance plan required under sections 175A and 
107(d)(3)(E)(iv) of the CAA. To begin with, EPA notes that the Area has 
attained both the 1997 annual and 2006 24-hour PM2.5 NAAQS 
and that West Virginia has shown that attainment of these standards are 
due to permanent and enforceable emission reductions.
    EPA proposes to determine that the West Virginia's maintenance plan 
shows continued maintenance of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS by tracking the levels of the precursors whose 
control brought about attainment of the standards in the Charleston 
Area. EPA therefore believes that the only additional consideration 
related to the maintenance plan requirements that results from the DC 
Circuit Court's January 4, 2013 decision is that of assessing the 
potential role of VOC and NH3 in demonstrating continued 
maintenance in this Area. As explained subsequently, based upon 
documentation provided by the State and supporting information, EPA 
believes that the maintenance plan for the Area need not include any 
additional emission reductions of VOC or NH3 in order to 
provide for continued maintenance of the 1997 annual and the 2006 24-
hour PM2.5 NAAQS.
    First, as noted previously in EPA's discussion of section 189(e), 
VOC emission levels in the Charleston Area have historically been well-
controlled under SIP requirements related to ozone and other 
pollutants. Second, total NH3 emissions throughout the 
Charleston Area are low, estimated to be less than 600 tons per year. 
See Table 7 in this document. This amount of NH3 emissions 
appears especially small in comparison to the total amounts of 
SO2, NOX, and even direct PM2.5 
emissions from sources in the Area.
    West Virginia's maintenance plan shows that significant emissions 
of direct PM, NOX, and SO2 are projected to 
decrease by 1,534 tpy, 14,907 tpy, and 91,504 tpy, respectively, over 
the maintenance period in the Area. See Table 6 in this document. In 
addition, emissions inventories used in the regulatory impact analysis 
(RIA) for the 2012 PM2.5 NAAQS \11\ show that VOC emissions 
in the Area are projected to decrease by 4,282 tpy between 2007 and 
2020. NH3 emissions are projected to increase by 55 tpy 
between 2007 and 2020; however this increase is not significant when 
compared with the emissions reductions projected for the other 
precursors. See Table 7 in this document. Given that the Charleston 
Area is already attaining the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS even with the current level of emissions from 
sources in the Area, the downward trend of emissions inventories would 
be consistent with continued attainment.
---------------------------------------------------------------------------

    \11\ ``Review of the NAAQS for Particulate Matter--Regulatory 
Impact Analysis.'' Docket ID No. EPA-R03-OAR-2010-0955.
---------------------------------------------------------------------------

    Indeed, projected emissions reductions for the precursors that West 
Virginia is addressing for purposes of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS indicate that the Area should continue to attain 
both standards following the precursor control strategy that the State 
has already elected to pursue.
    Even if VOC and NH3 emissions were to increase 
unexpectedly between 2007 and 2025, the overall emissions reductions 
projected between 2008 and 2025 of direct PM2.5, 
NOX, and SO2 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 either the 1997 annual or 2006 24-hour PM2.5 
standard during the maintenance period.

       Table 7--Comparison of 2007 and 2020 Emissions of VOC and NH3 for the Charleston Area, in tpy \12\
----------------------------------------------------------------------------------------------------------------
                                                     VOC                                    NH3
                                   -----------------------------------------------------------------------------
              Sector                                           Net change                             Net Change
                                        2007         2020      2007-2020       2007         2020      2007-2020
----------------------------------------------------------------------------------------------------------------
Point.............................        2,182        2,185            3           20          161          141
Area..............................        2,825        2,605         -220          118          120            2
Nonroad...........................        2,413        1,494         -919            4            4            0
On-road...........................        4,263        1,117       -3,164          155           69          -86
Fires.............................        2,167        2,167            0          150          150            0
                                   -----------------------------------------------------------------------------
    Total.........................       13,850        9,568       -4,282          447          504           55
----------------------------------------------------------------------------------------------------------------

    In addition, available air quality modeling analyses show continued 
maintenance of the standard during the maintenance period. The current 
annual design value for the Area is 12.5 [micro]g/m\3\ and the current 
24-hour design value is 26 [micro]g/m\3\, based on 2009-2011 air 
quality data, which are well below the levels of the 1997 annual and 
2006 24-hour PM2.5 NAAQS. See Table 1 in this document. 
Moreover, the modeling analysis conducted for the RIA for the 2012 
PM2.5 NAAQS indicates that the design values for the 
Charleston Area are expected to continue to decline

[[Page 4136]]

through 2020. In the RIA analysis, the 2020 modeled annual design value 
for the Area is 9.4 [micro]g/m\3\ and the 2020 24-hour design value is 
17 [micro]g/m\3\.\13\ Given that most precursor emissions are projected 
to decrease through 2025, it is reasonable to conclude that monitored 
PM2.5 levels in the Area will also continue to decrease 
through 2025.
---------------------------------------------------------------------------

    \12\ These emissions estimates were taken from the emissions 
inventories developed for the RIA for the 2012 PM2.5 
NAAQS.
    \13\ The 2020 projected PM2.5 design values are part 
of the RIA for the 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

    Thus, EPA believes that there is ample justification to conclude 
that the Charleston Area should be redesignated, even taking into 
consideration the emissions of other precursors potentially relevant to 
PM2.5. After consideration of the DC Circuit Court's January 
4, 2013 decision, and for the reasons set forth in this notice, EPA 
proposes to approve West Virginia's maintenance plans and requests to 
redesignate the Charleston Area to attainment for the 1997 annual and 
2006 24-hour PM2.5 standards. This proposed rulemaking 
action is based on a showing that the West Virginia's maintenance plans 
provide for maintenance of both the 1997 annual and 2006 24-hour 
PM2.5 standards for at least 10 years after redesignation, 
throughout 2025, in accordance with section 175A of the CAA.

C. Transportation Conformity Insignificance Determinations

    Transportation conformity is required under section 176(c) of the 
CAA to ensure that Federally supported highway, transit projects, and 
other activities are consistent with (conform to) the purpose of the 
SIP. The CAA requires Federal actions in nonattainment and maintenance 
areas to ``conform to'' the goals of the SIP. This means that such 
actions will not cause or contribute to violations of a NAAQS or any 
interim milestone. Actions involving Federal Highway Administration 
(FHWA) or Federal Transit Administration (FTA) funding or approval are 
subject to the Transportation Conformity Rule (40 CFR part 93, subpart 
A). Under this rule, metropolitan planning organizations (MPOs) in 
nonattainment and maintenance areas coordinate with state air quality 
and transportation agencies, EPA, FHWA, and FTA to demonstrate that 
their metropolitan transportation plans and transportation improvement 
plans (TIPs) conform to applicable SIPs. This is typically determined 
by showing that estimated emissions from existing and planned highway 
and transit systems are less than or equal to the motor vehicle 
emissions budgets (MVEBs) contained in a SIP.
    For MVEBs to be approvable, they must meet, at a minimum, EPA's 
adequacy criteria in 40 CFR 93.118(e)(4). However, in certain 
instances, the Transportation Conformity Rule allows areas to forgo 
establishment of a MVEB where it is demonstrated that the regional 
motor vehicle emissions for a particular pollutant or precursor are an 
insignificant contributor to the air quality problem in an area. The 
general criteria for insignificance determinations can be found in 40 
CFR 93.109(f). Insignificance determinations are based on a number of 
factors, including the percentage of motor vehicle emissions in the 
context of the total SIP inventory; the current state of air quality as 
determined by monitoring data for the relevant NAAQS; the absence of 
SIP motor vehicle control measures; and the historical trends and 
future projections of the growth of motor vehicle emissions. EPA's 
rationale for providing for insignificance determinations is described 
in the July 1, 2004, revision to the Transportation Conformity Rule at 
69 FR 40004. Specifically, the rationale is explained on page 40061 
under the subsection XXIII.B entitled, ``Areas With Insignificant Motor 
Vehicle Emissions.''
    As part of the 1997 annual and the 2006 24-hour PM2.5 
NAAQS redesignation requests and maintenance plans, West Virginia is 
requesting that EPA finds that onroad emission of direct PM and 
NOX emissions for the Charleston Area are insignificant for 
transportation conformity purposes. On September 12, 2013, EPA 
initiated an adequacy review of the findings of insignificance for both 
the 1997 annual and the 2006 24-hour PM2.5 NAAQS that West 
Virginia included in its redesignation submittals. As such, notices of 
the submission of these findings were posted on the adequacy Web site 
(https://epa.gov/otaq/stateresources/transconf/currsips.htm). The public 
comment period closed on October 15, 2013. There were no public 
comments. EPA is acting on making these adequacy findings final through 
a separate notice of adequacy. Consistent with EPA's adequacy review of 
West Virginia's redesignation requests and maintenance plans and EPA's 
thorough review of the entire SIP submissions, EPA is proposing to 
approve West Virginia's insignificance determinations for the onroad 
motor vehicle contribution of PM2.5 and NOX 
emissions to the overall PM2.5 emissions for the 1997 annual 
and the 2006 24-hour PM2.5 NAAQS for the Charleston Area.
    Because EPA finds that West Virginia's submittals meet the criteria 
in the Transportation Conformity Rule for insignificance findings for 
motor vehicle emissions of PM2.5 and NOX in the 
Charleston Area, it is not necessary to establish PM2.5 and 
NOX MVEBs for the Area. EPA finds that the submittals 
demonstrate that PM2.5 and NOX, regional motor 
vehicle emissions are insignificant contributors to the annual and 
daily PM2.5 air quality in the Charleston Area. These 
findings are based on the following: (1) West Virginia provided 
information that projects that onroad mobile source NOX 
constitutes 8 percent or less of the Area's total NOX 
emissions in 2018 and 2025 due to continuing fleet turnover; (2) West 
Virginia provided information that projects that onroad mobile source 
PM2.5 emissions constitute 3.62 percent of the Area's total 
PM2.5 emissions and decreases significantly in later 
analysis years to 1.89 percent (2018) and 1.40 percent (2025); (3) 
there are no SIP requirements for motor vehicle control measures for 
the Area and it is unlikely that motor vehicle control measures will be 
implemented for PM2.5 in the Area in the future; and (4) the 
Area has attained both the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS. As a result, MVEBs for PM2.5 and 
NOX are not required for the Charleston Area to maintain the 
1997 annual and the 2006 24-hour PM2.5 NAAQS. EPA is 
proposing to approve the findings of insignificant contribution by 
onroad sources for PM2.5 and NOX, resulting in no 
proposed MVEBs for the Charleston Area for the 2018 and 2025 projected 
maintenance years. Onroad emissions were calculated using the EPA 
required MOVES2010a model.
    West Virginia did not provide emission budgets for SO2, 
VOC, and NH3 because it concluded, consistent with the 
presumptions regarding these precursors in the Transportation 
Conformity Rule at 40 CFR 93.102(b)(2)(v), which predated and was not 
disturbed by the litigation on the 1997 PM2.5 Implementation 
Rule, that emissions of these precursors from motor vehicles are not 
significant contributors to the Area's PM2.5 air quality 
problem.
    EPA issued conformity regulations to implement the 1997 annual 
PM2.5 NAAQS in July 2004 and May 2005 (69 FR 40004, July 1, 
2004 and 70 FR 24280, May 6, 2005). Those actions were not part of the 
final rule recently remanded to EPA by the DC Circuit Court in NRDC v. 
EPA, No. 08-1250 (Jan. 4, 2013), in which the DC Circuit Court remanded 
to EPA the 1997 PM2.5 Implementation Rule because it 
concluded that EPA

[[Page 4137]]

must implement that NAAQS pursuant to the PM-specific implementation 
provisions of subpart 4, rather than solely under the general 
provisions of subpart 1. That decision does not affect EPA's proposed 
approval of the insignificance findings.
    First, as noted above, EPA's conformity rule implementing the 1997 
annual PM2.5 NAAQS was a separate action from the overall 
PM2.5 implementation rule addressed by the DC Circuit Court 
and was not considered or disturbed by the decision. Therefore, the 
conformity regulations were not at issue in NRDC v. EPA.\14\ In 
addition, as discussed in section V.A.1 of this rulemaking action, the 
air quality data show that the Charleston Area continues to attain both 
the 1997 annual and 2006 24-hour PM2.5 NAAQS. Further, West 
Virginia's maintenance plan shows continued maintenance through 2025 by 
demonstrating that NOX, SO2, and direct PM 
emissions continue to decrease through the maintenance period. With 
regard to SO2, the 2005 final conformity rule (70 FR 24280) 
based its presumption concerning onroad SO2 MVEBs on 
emissions inventories that show that SO2 emissions from 
onroad sources constitute a ``de minimis'' portion of total 
SO2 emissions. For the Charleston Area, onroad mobile source 
SO2 constitutes less than two tenth of one percent (less 
than 0.2 percent) of the Area's total SO2 emissions in the 
2018 and 2025 horizon years. For more information on EPA's review of 
the determination of insignificance, see the TSD dated October 29, 
2013, available on line at www.regulations.gov, Docket ID No. EPA-OAR-
R03-2013-0090.
---------------------------------------------------------------------------

    \14\ The 2004 rulemaking action addressed most of the 
transportation conformity requirements that apply in 
PM2.5 nonattainment and maintenance areas. The 2005 
conformity rule included provisions addressing treatment of 
PM2.5 precursors in MVEBs. See 40 CFR 93.102(b)(2). While 
none of these provisions were challenged in the NRDC case, EPA also 
notes that the Court declined to address challenges to EPA's 
presumptions regarding PM2.5 precursors in the 
PM2.5 implementation rule. NRDC v. EPA, at 27, n. 10.
---------------------------------------------------------------------------

VI. Proposed Actions

    EPA is proposing to approve the redesignation of the Charleston 
Area from nonattainment to attainment for the 1997 annual and 2006 24-
hour PM2.5 NAAQS. EPA has evaluated West Virginia's 
redesignation requests and determined that upon approval of the 2008 
comprehensive emissions inventory for the 2006 24-hour PM2.5 
NAAQS proposed in this rulemaking action, it would meet the 
redesignation criteria set forth in section 107(d)(3)(E) of the CAA for 
both standards. EPA believes that the monitoring data demonstrate that 
the Charleston Area is attaining and will continue to attain the 1997 
annual and the 2006 24-hour PM2.5 NAAQS. EPA is also 
proposing to approve the associated maintenance plans for the Area 
submitted on December 6, 2012, as a revision to the West Virginia SIP 
because it meets the requirements of section 175A of the CAA for both 
standards. For transportation conformity purposes, EPA is also 
proposing to approve both the 1997 annual and the 2006 24-hour 
PM2.5 NAAQS, West Virginia's determinations that onroad 
emissions of PM2.5 and NOX are insignificant 
contributors to PM2.5 concentrations in the Charleston Area. 
Final approval of these redesignation requests would change the 
official designations of the Charleston Area from nonattainment to 
attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS 
at 40 CFR part 81, and would incorporate into the West Virginia SIP the 
associated maintenance plans ensuring continued attainment of the 1997 
annual and the 2006 24-hour PM2.5 NAAQS in Charleston Area 
for the next 10 years, until 2025. EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

VII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under section 
107(d)(3)(E) of the CAA are actions that affect the status of 
geographical area and do not impose any additional regulatory 
requirements on sources beyond those required by state law. A 
redesignation to attainment does not in and of itself impose any new 
requirements, but rather results in the application 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, this 
rulemaking action merely proposes to approve state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is 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.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is 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
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule proposing to approve West Virginia's 
redesignation requests, maintenance plans, and transportation 
conformity insignificance determinations for the 1997 annual and the 
2006 24-hour PM2.5 NAAQS, and the 2008 emissions inventory 
for the 2006 24-hour PM2.5 NAAQS for the Charleston Area, 
does not have tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000), because the SIP is not approved to 
apply in Indian country located in the state, and EPA notes that it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.


[[Page 4138]]


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

    Dated: December 17, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2014-01181 Filed 1-23-14; 8:45 am]
BILLING CODE 6560-50-P