[Federal Register Volume 79, Number 16 (Friday, January 24, 2014)]
[Proposed Rules]
[Pages 4121-4138]
[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<EMAIL_ADDRESS>    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.

FOR FURTHER INFORMATION CONTACT: Rose Quinto,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
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

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

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

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.
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    \1\ Applicable requirements of the CAA that come due subsequent
to the area's submittal of a complete redesignation request remain
applicable until a redesignation is approved, but are not required
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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    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

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.

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

    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

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,

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

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 http://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.

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

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

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

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.

    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

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
(http://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

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.

    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]
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