[Federal Register Volume 77, Number 221 (Thursday, November 15, 2012)]
[Proposed Rules]
[Pages 68076-68087]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27785]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2012-0174; FRL-9752-1]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Redesignation of the West Virginia Portion of the 
Huntington-Ashland, WV-KY-OH 1997 Annual PM2.5 Nonattainment 
Area to Attainment and Approval of the Associated Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and State 
Implementation Plan (SIP) revision submitted by the State of West 
Virginia. The West Virginia Department of Environmental Protection 
(WVDEP) is requesting that the West Virginia portion of the Huntington-
Ashland, WV-KY-OH-fine particulate matter (PM2.5) 
nonattainment area (``Huntington-Ashland Area'' or ``Area'') be 
redesignated as attainment for the 1997 annual PM2.5 
national ambient air quality standard (NAAQS). The Huntington-Ashland 
Area is comprised of Cabell and Wayne Counties and a portion of Mason 
County in West Virginia (West Virginia portion of the Area); Boyd 
County and a portion of Lawrence County in Kentucky; and Lawrence and 
Scioto Counties and portions of Adams and Gallia Counties in Ohio. In 
this rulemaking action, EPA is proposing to approve the 
PM2.5 redesignation request for the West Virginia portion of 
the Area. EPA is also proposing to approve the maintenance plan SIP 
revision that the State submitted in conjunction with its redesignation 
request. The maintenance plan provides for continued attainment of the 
1997 annual PM2.5 NAAQS for 10 years after redesignation of 
the West Virginia portion of the Area. The maintenance plan includes an 
insignificance determination for the on-road motor vehicle contribution 
of PM2.5, nitrogen oxides (NOx), and sulfur 
dioxide (SO2) for the West Virginia portion of the Area for 
purposes of transportation conformity. EPA is proposing to find that 
West Virginia's insignificance determination for transportation 
conformity is adequate.\1\

[[Page 68077]]

EPA is also proposing to find that the Area continues to attain the 
standard. This action to propose approval of the 1997 annual 
PM2.5) NAAQS redesignation request, maintenance plan, and 
insignificance determination for transportation conformity for the West 
Virginia portion of the Area is based on EPA's determination that the 
Area has met the criteria for redesignation to attainment specified in 
the Clean Air Act (CAA). EPA is taking separate action to propose 
redesignation of the Kentucky and Ohio portions of the Huntington-
Ashland Area.
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    \1\ On November 5, 2012, EPA initiated the comment period for 
this proposed insignificance determination on the Office of 
Transportation and Air Quality (OTAQ) Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips) in order to allow for a full 
30 day public comment period in conjunction with this proposed 
rulemaking.

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DATES: Written comments must be received on or before December 6, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0174 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: mastro.donna@epa.gov
    C. Mail: EPA-R03-OAR-2012-0174, Donna Mastro, Acting 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-
2012-0174. 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 25304.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
e-mail at powers.marilyn@epa.gov

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Summary of Actions
II. Background
III. Criteria for Redesignation to Attainment
IV. Reasons for Proposing These Actions
V. Effect of These Proposed Actions
VI. Analysis of West Virginia's Redesignation Request
VII. Analysis of West Virginia's Transportation Conformity 
Insignificance Determination for the Huntington-Ashland Area
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews

I. Summary of Actions

    On June 30, 2011, the State of West Virginia through WVDEP formally 
submitted a request to redesignate the West Virginia portion of the 
Area from nonattainment to attainment of the 1997 annual 
PM2.5 NAAQS. Concurrently, West Virginia submitted a 
maintenance plan for the Area as a SIP revision to ensure continued 
attainment throughout the Area over the next 10 years.
    EPA is proposing to take several actions related to redesignation 
of the West Virginia portion of the Area to attainment for the 1997 
annual PM2.5 NAAQS. EPA is proposing to find that the West 
Virginia portion of the Area meets the requirements for redesignation 
of the 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 definition of the West Virginia portion of the Area from 
nonattainment to attainment for the 1997 annual PM2.5 NAAQS. 
This action does not impact the legal definition of the Kentucky or 
Ohio portions of the Area. EPA is taking separate action to redesignate 
these portions.
    EPA is also proposing to approve the maintenance plan for the West 
Virginia portion of the Area as a revision to the West Virginia SIP. 
Such approval is one of the CAA criteria for redesignation of an area 
to attainment. The maintenance plan is designed to ensure continued 
attainment in the West Virginia portion of the Area for 10 years after 
redesignation. The maintenance plan includes an insignificance 
determination for the on-road motor vehicle contribution of 
PM2.5, NOx and SO2 in the West 
Virginia portion of the Area for transportation conformity purposes. 
EPA has determined that the on-road motor vehicle insignificance 
finding that is included as part of West Virginia's maintenance plan 
for the 1997 annual PM2.5 NAAQS is adequate, and is 
proposing to approve the insignificance determination. EPA's analysis 
of these proposed actions is discussed in Sections VI and VII of 
today's proposed rulemaking action.

II. Background

A. General

    The first air quality standards for PM2.5 were 
established on July 16, 1997. 62 FR 38652 (July 18, 1997). 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. In the same rulemaking action, 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 October 
17, 2006, at 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 24-hour 
concentrations.
    On January 5, 2005 at 70 FR 944, as supplemented on April 14, 2005 
at 70 FR 19844, EPA designated the

[[Page 68078]]

Huntington-Ashland Area as nonattainment for the 1997 
p.m.2.5 air quality NAAQS. The Huntington-Ashland Area is 
comprised of Cabell and Wayne Counties and the Graham tax district in 
Mason County, West Virginia; Boyd County and the portion of Lawrence 
County described by U.S. Census 2000 block group identifier 21-127-
9901-6 in Kentucky; and Lawrence and Scioto Counties, Monroe and Sprigg 
Townships in Adams County, and Addison and Cheshire Townships in Gallia 
County in Ohio. On November 13, 2009 at 74 FR 58688, EPA promulgated 
designations for the 24-hour standard set in 2006, designating the 
Huntington-Ashland Area as attaining this standard. In that action, EPA 
also clarified the designations for the NAAQS promulgated in 1997, 
stating that the Huntington-Ashland Area remained designated 
nonattainment for the 1997 annual PM2.5 standard, but was 
designated attainment for the 1997 24-hour standard. Today's action 
therefore does not address attainment of either the 1997 or the 2006 
24-hour NAAQS.
    In response to legal challenges of the annual standard promulgated 
in 2006, the DC Circuit remanded this standard to EPA for further 
consideration. See American Farm Bureau Federation and National Pork 
Producers Council, et al. v. EPA, 559 F.3d 512 (DC Cir. 2009). However, 
given that the 1997 and 2006 annual standards are essentially 
identical, attainment of the 1997 annual standard would also indicate 
attainment of the remanded 2006 annual standard. Since the Huntington-
Ashland Area is designated nonattainment only for the annual standard 
promulgated in 1997, today's action addresses redesignation to 
attainment only for this standard.
    In a final rulemaking action dated September 7, 2011 at 76 FR 
55542, EPA determined, pursuant to 40 CFR 51.1004(c), that the entire 
Huntington-Ashland Area is attaining 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 NAAQS by 
its applicable attainment date of April 5, 2010.

B. Clean Air Interstate Rule (CAIR) and Cross State Air Pollution Rule 
(CSAPR or the Transport Rule)

    On May 12, 2005, EPA published CAIR, which 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 70 FR 25162. The DC Circuit initially vacated CAIR, 
North Carolina v. EPA, 531 F.3d 896 (DC 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 
(DC Cir. 2008). In response to the court's decision, EPA issued the 
Transport Rule, also known as CSAPR, to address interstate transport of 
NOx and SO2 in the eastern United States. See 76 
FR 48208 (August 8, 2011). On August 21, 2012, the DC Circuit issued a 
decision to vacate the Transport Rule. In that decision, it also 
ordered EPA to continue administering CAIR ``pending the promulgation 
of a valid replacement.'' EME Homer City Generation, L.P. v. EPA, No. 
11-1302 (DC Cir., August 21, 2012).\2\
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    \2\ The court's judgment is not final, as of November 7, 2012, 
as the mandate has not yet been issued.
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    In light of the above and as explained below, EPA proposes to 
approve the redesignation request and the related SIP revision for 
Cabell and Wayne Counties and the Graham tax district in Mason County 
in West Virginia, including West Virginia's plan for maintaining 
attainment of the 1997 annual PM2.5 NAAQS standard in the 
West Virginia portion of the Area. The air quality modeling analysis 
conducted for the Transport Rule demonstrates that the Huntington-
Ashland Area would be able to attain the 1997 annual PM2.5 
NAAQS even in the absence of either CAIR or the Transport Rule. See 
``Air Quality Modeling Final Rule Technical Support Document,'' App. B, 
B-115 to B-134. This modeling is available in the docket for the 
Transport Rule rulemaking action. See Docket ID No. EPA-HQ-OAR-2009-
0491. Nothing in the DC Circuit's August 2012 decision disturbs or 
calls into question that conclusion or the validity of the air quality 
analysis on which it is based.
    In addition, 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 became state-effective on 
May 1, 2008 and was approved by EPA on August 4, 2009 for the purpose 
of reducing SO2 and NOx emissions. The monitoring 
data used to demonstrate the Area's attainment of the 1997 annual 
PM2.5 NAAQS by the April 2010 attainment deadline was also 
impacted by CAIR. To the extent that the State is relying on CAIR in 
its maintenance plan, the recent directive from the DC Circuit in EME 
Homer ensures that the reductions associated with CAIR will be 
permanent and enforceable for the necessary time period. EPA has been 
ordered by the Court to develop a new rule, 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. CAIR thus 
cannot be replaced until EPA has promulgated a final rule through a 
notice-and-comment rulemaking process, states have had an opportunity 
to draft and submit SIPs, EPA has reviewed the SIPs to determine if 
they can be approved, and EPA has taken action on the SIPs, including 
promulgating a FIP if appropriate. These steps alone will take many 
years, even with EPA and the states acting expeditiously. The 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 Court's direction 
would require upwind states to eliminate significant downwind 
contributions.
    Further, in vacating the Transport Rule and requiring EPA to 
continue administering CAIR, the DC Circuit 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, slip op. at 60. 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 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 
pending a valid replacement rule for purposes such as redesignation. 
Following promulgation of the replacement rule, EPA will review SIPs as 
appropriate to identify whether there are any issues that need to be 
addressed.

III. 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:

[[Page 68079]]

    1. EPA determines that the area has attained the applicable NAAQS;
    2. EPA has fully approved the applicable implementation plan for 
the area under section 110(k);
    3. EPA determines that the improvement in air quality is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the applicable SIP and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
reductions;
    4. EPA has fully approved a maintenance plan for the area as 
meeting the requirements of CAA section 175A; and
    5. The state containing such area has met all requirements 
applicable to the area under CAA section 110 and Part D.
    EPA has provided guidance on redesignation in the General Preamble 
for the Implementation of title I of the CAA Amendments of 1990 (April 
16, 1992, 57 FR 13498) (supplemented on April 28, 1992, 57 FR 18070) 
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 
``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.

IV. Reasons for Proposing These Actions

    On June 30, 2011, the WVDEP requested redesignation of the West 
Virginia portion of the Area to attainment for the 1997 annual 
PM2.5 standard. As a part of the redesignation request, 
WVDEP submitted a maintenance plan for the West Virginia portion of the 
Area as a SIP revision, to ensure continued attainment of the 1997 
annual PM2.5 NAAQS over the next 10 years until 2022. EPA 
has determined that the Huntington-Ashland Area has attained the 1997 
annual PM2.5 standard and that West Virginia has met the 
requirements set forth in CAA section 107(d)(3)(E) for redesignation of 
the West Virginia portion of the Area.

V. Effects of These Proposed Actions

    Final approval of the redesignation request would change the 
official designation of the West Virginia portion of the Area for the 
1997 annual PM2.5 NAAQS, found at 40 CFR part 81, from 
nonattainment to attainment. It would incorporate into the West 
Virginia SIP a maintenance plan ensuring continued attainment of the 
1997 annual PM2.5 NAAQS in the Area for the next 10 years 
until 2022. The maintenance plan includes, among other components, 
contingency measures to remedy any future violations of the 1997 annual 
PM2.5 NAAQS (should they occur). Approval of the maintenance 
plan would also result in approval of the insignificance determination 
for PM2.5, NOx, and SO2 for 
transportation conformity purposes in the West Virginia portion of the 
Area.

VI. Analysis of West Virginia's Redesignation Request

    EPA proposes to redesignate the West Virginia portion of the Area 
to attainment for the 1997 annual PM2.5 NAAQS and to approve 
into the West Virginia SIP the 1997 annual PM2.5 NAAQS 
maintenance plan for the West Virginia portion of the Area. These 
actions are based upon EPA's determination that the Area continues to 
attain the 1997 annual PM2.5 NAAQS and that all other 
redesignation criteria have been met for the West Virginia portion of 
the Area, provided EPA approves the base year emissions inventory that 
has been proposed in a separate rulemaking action. See 77 FR 60085 
(Oct. 2, 2012). The following is a description of how the WVDEP June 
30, 2011 submittal satisfies the requirements of section 107(d)(3)(E) 
of the CAA.

1. Attainment

    As noted above, in a final rulemaking action dated September 7, 
2011, at 76 FR 55542, EPA determined, pursuant to 40 CFR 51.1004(c), 
that the entire Huntington-Ashland Area is attaining 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 
NAAQS by its applicable attainment date of April 5, 2010. Further 
discussion of pertinent air quality issues underlying this 
determination was provided in the notice of proposed rulemaking action 
for EPA's determination of attainment for this Area, published on May 
11, 2011 (76 FR 27290). EPA has reviewed more recent data in its Air 
Quality System (AQS) database, including certified, quality-assured 
data for the periods from 2008-2010 and 2009-2011. This data, shown in 
Table 1, shows that the Huntington-Ashland Area continues to attain the 
1997 annual PM2.5 NAAQS. In addition, as discussed below 
with respect to the maintenance plan, WVDEP has committed to continue 
monitoring air quality in accordance with 40 CFR part 58. In summary, 
EPA has determined that the data submitted by West Virginia, as well as 
data taken from AQS, indicate that the Huntington-Ashland Area has 
attained and continues to attain the 1997 annual PM2.5 
NAAQS.

  Table 1--Design Value Concentrations for the Huntington-Ashland Area for the 1997 Annual PM2.5 NAAQS ([mu]g/
                                        m\3\) for 2008-2010 and 2009-2011
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                                                                                 3-Year annual design values
                         County                              Monitor ID    -------------------------------------
                                                                                2008-2010          2009-2011
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Cabell, WV.............................................        54-011-0006               13.1               12.3
Boyd, KY...............................................        21-019-0017               11.4               10.8
Scioto, OH.............................................        39-145-0013               11.6               10.9
Lawrence, OH...........................................        39-087-0012               12.2               11.4
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Note: Monitor 39-087-0010 in Lawrence, Ohio was shut down in February 2008 due to demolition of the building. It
  was replaced by monitor 39-087-0012 located approximately one mile away and began monitoring in February 2008.


[[Page 68080]]

2. The Area Has Met All Applicable Requirements Under Section 110 and 
Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of 
the CAA

    EPA has determined that the West Virginia portion of the Area has 
met all SIP requirements applicable for purposes of this redesignation 
under section 110 of the CAA (General SIP Requirements) and that, upon 
final approval of the 2002 base year inventory as discussed in section 
VI, it will have met all applicable SIP requirements under Part D of 
Title I of the CAA, in accordance with CAA section 107(d)(3)(E)(v). In 
addition, EPA is proposing to find that all applicable requirements of 
the West Virginia SIP for purposes of redesignation have been approved 
in accordance with CAA section 107(d)(3)(E)(ii). In making these 
proposed determinations, EPA ascertained which SIP requirements are 
applicable for purposes of redesignation of this area, and concluded 
that the applicable portions of the SIP meeting these requirements are 
fully approved under CAA section 110(k). We note that SIPs must be 
fully approved only with respect to applicable requirements.
a. CAA 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 CAA section 
110(a)(2) include, but are not limited to the following:
     Submittal of a SIP that has been adopted by the state 
after reasonable public notice and hearing;
     Provisions for establishment and operation of appropriate 
procedures needed to monitor ambient air quality;
     Implementation of a source permit program; provisions for 
the implementation of Part C requirements (Prevention of Significant 
Deterioration (PSD));
     Provisions for the implementation of Part D requirements 
for New Source Review (NSR) permit programs;
     Provisions for air pollution modeling; and
     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 
for various NAAQS, EPA has required certain states to establish 
programs to address transport of air pollutants in accordance with the 
NOx SIP Call, October 27, 1998 (63 FR 57356), amendments to 
the NOx SIP Call, May 14, 1999 (64 FR 26298) and March 2, 
2000 (65 FR 11222), and CAIR, May 12, 2005 (70 FR 25162). However, the 
CAA section 110(a)(2)(D) requirements for a state are not linked with a 
particular nonattainment area's designation and classification in that 
state. EPA believes that the requirements linked with a particular 
nonattainment area's designation and classifications are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state. Thus, we do not believe that these requirements are 
applicable requirements for purposes of redesignation.
    In addition, EPA believes that the other CAA section 110(a)(2) 
elements not connected with nonattainment plan submissions and not 
linked with an area's attainment status are not applicable requirements 
for purposes of redesignation. The Area will still be subject to these 
requirements after it is redesignated. We conclude that the CAA section 
110(a)(2) 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 CAA section 
110(a)(2) elements not linked to 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 redesignation (65 FR at 
37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 
53099, October 19, 2001).
    We have reviewed the West Virginia SIP and have 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 
CAA 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 Huntington-Ashland Area. 
Therefore, EPA believes that these SIP elements are not applicable 
requirements for purposes of review of the State's PM2.5 
redesignation request.
b. Part D Nonattainment Requirements Under the Standard
    Subpart 1 of part D, sections 172 to 175 of the CAA, sets forth the 
basic nonattainment plan requirements applicable to PM2.5 
nonattainment areas. Under CAA section 172, states with nonattainment 
areas must submit plans providing for timely attainment and must meet a 
variety of other requirements. On May 28, 2009, WVDEP submitted an 
attainment plan and base year inventory for the West Virginia portion 
of the Area. On September 7, 2011 (76 FR 55542), EPA made a 
determination that the Huntington-Ashland Area is attaining the 1997 
Annual PM2.5 NAAQS. Pursuant to 40 CFR 51.1004(c), upon a 
determination by EPA that an area designated nonattainment for the 
PM2.5 NAAQS has attained the standard, the requirement for 
such an area to submit an attainment demonstration and associated 
reasonably available control measures (RACM), a reasonable further 
progress plan (RFP), contingency measures, and other planning SIPs 
related to the attainment of the PM2.5 NAAQS are suspended 
until the area is redesignated to attainment or EPA determines that the 
area has again violated the PM2.5 NAAQS, at which time such 
plans are required to be submitted. The May 28, 2009 submittal is 
relevant to this proposed action to redesignate the West Virginia 
portion of the Area only with respect to the base year inventory that 
was submitted with the attainment plan. In a separate rulemaking 
action, as detailed below, EPA has proposed approval of the base year 
inventory, which, upon final approval, will meet the requirements of 
CAA section 172(c)(3), one of the criteria for redesignation. See 77 FR 
60085 (Oct. 2, 2012).
    The General Preamble for Implementation of Title I also 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

[[Page 68081]]

an area is attaining the standard. See General Preamble for 
Implementation of Title I (57 FR 13498 (April 16, 1992)).
    Because attainment has been reached for the Area, no additional 
measures are needed to provide for attainment, and CAA section 
172(c)(1) requirements for an attainment demonstration and RACM are no 
longer considered to be applicable for purposes of redesignation as 
long as the area continues to attain the standard until redesignation. 
See 40 CFR 51.1004(c). The RFP requirement under CAA section 172(c)(2) 
and contingency measures requirement under CAA section 172(c)(9) are 
similarly not relevant for purposes of redesignation.
    Section 172(c)(3) of the CAA requires submission of a 
comprehensive, accurate, and current inventory of actual emissions. As 
part of West Virginia's attainment plan submittal, the State submitted 
a 2002 emissions inventory. As previously noted, on September 7, 2011 
(76 FR 55542), EPA determined that the Huntington-Ashland Area attained 
the 1997 annual PM2.5 NAAQS, based on complete, quality-
assured data for the period of 2007-2009. That rulemaking action 
suspended certain planning requirements related to attainment, 
including the RACT/RACM requirement of section 172(c)(1), the RFP 
requirement of CAA section 172(c)(2), the attainment demonstration 
requirement of CAA section 172(c)(3), and the requirement for 
contingency measures in CAA section 172(c)(9). As a result of the 
determination of attainment, the only remaining requirement under CAA 
section 172 to be considered for purposes of redesignation of the West 
Virginia portion of the Area is the emissions inventory required under 
CAA section 172(c)(3). On October 2, 2012 (77 FR 60085), EPA proposed 
approval of the base year inventory for the West Virginia portion of 
the Area for the 1997 annual PM2.5 NAAQS. An evaluation of 
West Virginia's 2002 base year inventory for the West Virginia portion 
of the Area is provided in the Technical Support Document (TSD) 
prepared by EPA for that rulemaking action. In that action, EPA 
determined that the emissions inventory and emissions statement 
requirements for the West Virginia portion of the Area have been 
satisfied, and proposed to approve the inventory as meeting the 
requirements of CAA section 172. Final approval of the emissions 
inventory in that action will satisfy the emissions inventory 
requirement for redesignation under CAA section 172(c)(3).
    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 CAA section 172(c)(5) 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 prevention of significant deterioration (PSD) 
requirements will apply after redesignation, areas being redesignated 
need not comply with the requirement that a nonattainment new source 
review (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, Asssistant 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 CSR 19. 
See 71 FR 64468 (November 2, 2006) (approving NSR program into the SIP) 
and 77 FR 63736 (October 17, 2012) (approving revisions to West 
Virginia's PSD program). However, the State's PSD program for annual 
PM2.5 will become effective in the Huntington-Ashland Area 
upon redesignation to attainment.
    Section 172(c)(6) of the CAA requires the SIP to contain control 
measures necessary to provide for attainment of the standard. Because 
attainment has been reached for the Area, no additional measures are 
needed to provide for attainment.
    Section 172(c)(7) of the CAA requires the SIP to meet the 
applicable provisions of CAA section 110(a)(2). As noted previously, we 
believe the West Virginia SIP meets the requirements of CAA section 
110(a)(2) that are applicable for purposes of redesignation.
    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 that are 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 a redesignation request under CAA section 107(d) 
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 (Dec. 7, 1995) (discussing 
Tampa, Florida). Thus, EPA determines that the Huntington-Ashland Area 
has satisfied all applicable requirements for purposes of redesignation 
under CAA section 110 and, upon final approval of the 2002 base year 
inventory proposed on October 2, 2012, will have satisfied all 
applicable requirements under part D of title I of the CAA.
 c. The West Virginia Portion of the Area Has a Fully Approved 
Applicable SIP Under Section 110(k) of the CAA
    Upon final approval of the 2002 base year inventory, as proposed in 
the October 2, 2012 rulemaking action, EPA will have fully approved the 
West Virginia portion of the Area under section 110(k) of the CAA for 
all requirements applicable for purposes of redesignation to attainment 
for the 1997 annual PM2.5 standard. Therefore, upon final 
approval of the 2002 base year emissions inventory, EPA will have 
approved all part D subpart 1 requirements applicable for purposes of 
this redesignation.

3. The Air Quality Improvement in the West Virginia Portion of 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

    For redesignating a nonattainment area to attainment, CAA section 
107(d)(3)(E)(iii) 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 West 
Virginia portion of 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

[[Page 68082]]

demonstration, West Virginia has calculated the change in emissions 
between 2005, one of the years used to designate the Huntington-Ashland 
Area as nonattainment, and 2008, one of the years for which the 
Huntington-Ashland Area monitored attainment. 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 Huntington-Ashland Area and contributing areas have 
implemented in recent years.
a. Federal Measures Implemented
    Reductions in fine particulate 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. Federal emission control measures include the following:
(1) Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards
    These emission control requirements result 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%); light duty 
trucks, minivans, and sports utility vehicles--86%; and, larger sports 
utility vehicles, vans, and heavier trucks--69-95%. 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, up to a 90 percent reduction.
(2) Heavy-Duty Diesel Engine Rule
    EPA issued this 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 fine particulate 
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% reduction in direct PM2.5 
emissions and a 95% 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.
(3) Nonroad Diesel Rule
    In May 2004, EPA promulgated a new 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%. 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. Controls on PM2.5 Precursors
    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 CSAPR to address SO2 
and NOX emissions from EGUs and certain non-EGUs across the 
eastern United States. The affected EGUs in the West Virginia portion 
of the Area are two American Electric Power (AEP) generating stations 
in Mason County.
(1) NOX SIP Call
    EPA issued the NOX SIP Call in 1998 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. (63 FR 57356, October 27, 1998). 
EPA approved West Virginia's Phase I NOX SIP Call rule in 
2002 and its Phase II rule in 2006. Emission reductions resulting from 
regulations developed in response to the NOX SIP Call are 
permanent and enforceable.
(2) CAIR and CSAPR
    EPA approved West Virginia's CAIR rules in 2009 (74 FR 38536, 
August 4, 2009). The maintenance plan for the West Virginia portion of 
the Area thus lists CAIR as a control measure for the purpose of 
reducing SO2 and NOX emissions from EGUs. Because 
the Transport Rule had not been finalized and CAIR was in place when 
West Virginia submitted its redesignation request and maintenance plan, 
inclusion of CAIR as a control measure was consistent with EPA policy 
at that time.
    As previously discussed, the D.C. Circuit's 2008 remand of CAIR 
left the rule in place to ``temporarily preserve the environmental 
values covered by CAIR'' until EPA replaced it with a rule consistent 
with the Court's opinion, and the court's August 2012 decision on the 
Transport Rule also left CAIR in effect until the legal challenges to 
the Transport Rule are resolved. As noted, 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 
pending a valid replacement rule, for purposes such as redesignation.
    Furthermore, as previously discussed, the air quality modeling 
analysis conducted for the Transport Rule demonstrates that the 
Huntington-Ashland Area would be able to attain the 1997 annual 
PM2.5 NAAQS even in the absence of either CAIR or the 
Transport Rule. EPA's modeling projections show that all ambient 
monitors in the Area are expected to continue to maintain compliance in 
the 2012 and 2014 ``no CAIR'' base cases. Therefore, none of the 
ambient monitoring sites in the Huntington-Ashland Area are 
``receptors'' that EPA projects will have future nonattainment problems 
or difficulty maintaining the NAAQS.
c. Federal Consent Decrees
    EGUs in this Area are subject to Federal consent decrees that have 
reduced emissions of NOX and SO2 in the Area. 
There are two AEP EGUs in Mason County, the partial county portion of 
the West Virginia portion of the Area. These are the Mountaineer Power 
Station (Mountaineer) and the Philip Sporn Power Station (Philip 
Sporn). As part of a Federally enforceable consent decree, Mountaineer 
was required, starting in January 2008, to operate its selective 
catalytic reduction (SCR) continuously to control NOX 
emissions, and to operate continuously its Flue Gas Desulfurization 
(FGD) to reduce SO2 emissions starting in December 2007.
    Since 2008, additional controls have or will be installed on EGUs 
within the West Virginia portion of the Area and in Kentucky and Ohio, 
which will continue to contribute to the reductions in precursor 
pollutants for PM2.5. Pursuant to the Federally enforceable 
consent decree, Philip Sporn installed and began operation of selective 
non-catalytic reduction (SNCR) to control NOX emissions on 
Units 3 and 4 starting in January 2009 and is required to retire, 
retrofit, or repower Unit 5 by December 31, 2013. Several EGUs in 
Gallia and Adams Counties in Ohio have installed controls as a result 
of Federally enforceable consent decrees. Two units at the General J. 
M. Gavin Station (owned or operated by AEP) in Gallia County, Ohio were 
required to continuously operate SNCR starting in December 2009, and 
five units at the Kyger Creek Station in Gallia County have installed 
and continuously operated SNCRs since January, 2009. Additionally, 
Kyger Creek Station plans to install and operate FGDs in 2012.

[[Page 68083]]

Also, four units at the J.M. Stuart DP&L Station in Adams County, Ohio 
have been operating year round SNCR since 2009, and one unit at Big 
Sandy Power Station (owned and/or operated by AEP) in Lawrence County, 
KY was required by consent decree to install and continuously operate 
SCR starting in January 2009 and a FGD starting in December 2015.
    A summary of the emissions reductions from 2005 to 2009 for the 
entire Huntington-Ashland Area is provided in Table 2 below. As 
discussed below, West Virginia's maintenance plan provides for 
verification of continued attainment by performing triennial reviews of 
emissions inventories for all PM2.5 precursors, as well as 
contingency measures to ensure that the NAAQS is maintained into the 
future if monitored increases in ambient PM2.5 
concentrations occur.

Table 2--Actual Emission Reductions From Coal Fired Utilities in the Huntington-Ashland Area for the Period 2005-
                                                      2009
----------------------------------------------------------------------------------------------------------------
                                                             Emission differences from 2005-2009 (tpy)
                                                 ---------------------------------------------------------------
                Facility--county                                      Percent                         Percent
                                                        SO2          reduction          NOX          reduction
----------------------------------------------------------------------------------------------------------------
Kentucky
    Big Sandy--Lawrence County..................           9,783              20           7,624              61
West Virginia
    Mountaineer--Mason County...................          40,214              94          10,073              79
    Philip Sporn--Mason County..................          22,433              57           5,020              56
Ohio
    JM Stuart--Adams County.....................          42,224              40          16,124              66
    Killen Station--Adams County................          17,592              90           3,083              52
    Gen JM Gavin--Gallia County.................           1,701               6          31,800              82
    Kyger Creek--Gallia County..................          16,032              22          15,209              82
----------------------------------------------------------------------------------------------------------------
Source: Clean Air Markets Data and Maps database (http://camddataandmaps.epa.gov/).

    Based on the information summarized above, West Virginia has 
adequately demonstrated that the improvement in air quality is due to 
permanent and enforceable emissions reductions. The reductions result 
from Federal requirements, regulation of precursors under the 
NOX SIP Call and CAIR, and Federal consent decrees affecting 
EGUs in the Huntington-Ashland Area, which are permanent and 
enforceable.
    Additionally, because PM2.5 concentrations in the 
Huntington-Ashland Area are impacted by the transport of sulfates and 
nitrates, as noted previously, the Area's air quality is strongly 
affected by regulation of SO2 and NOX emissions 
from EGUs in states in the region that significantly contribute to the 
Area. Table 3 shows statewide EGU emissions data for the years 2002, 
2008 and 2010 for the states that are significantly contributing to the 
air quality in the Huntington-Ashland Area. Emissions for 2008 and 2010 
reflect the implementation of CAIR.

             Table 3--Comparison of 2002, 2008, and 2010 EGU NOX and SO2 Emissions for States That Contribute to the Huntington-Ashland Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       NOX (tpy)                                           SO2 (tpy)
                                                 -------------------------------------------------------------------------------------------------------
                      State                                                               Net change                                          Net change
                                                      2002         2008         2010      2002-2008       2002         2008         2010      2002-2008
                                                                                          (percent)                                           (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama.........................................      161,559      112,625       63,289          -30      448,248      357,546      204,189          -20
Georgia.........................................      146,456      105,894       60,521          -27      512,654      514,539      218,836           <1
Illinois........................................      174,247      119,976       76,299          -31      353,699      257,431      220,092          -27
Indiana.........................................      281,146      196,580      120,924          -30      778,868      595,966      414,764          -23
Kentucky........................................      198,599      157,847       91,824          -20      482,653      344,356      266,204          -22
Michigan........................................      132,624      103,473       76,130          -20      342,999      326,501      242,188           -4
Missouri........................................      139,799       88,600       58,364          -36      235,532      258,269      236,216            9
Ohio............................................      370,497      235,018      104,839          -36    1,132,069      709,444      572,126          -37
Pennsylvania....................................      200,909      175,219      125,486          -12      889,766      631,915      393,196          -28
Tennessee.......................................      155,996       85,543       31,073          -43      336,995      208,069      119,023          -38
West Virginia...................................      225,371       97,331       51,393          -56      507,110      301,574      106,087          -40
                                                 -------------------------------------------------------------------------------------------------------
    Total.......................................    2,025,644    1,478,106      860,142          -27    5,785,061    4,505,610    2,992,921          -22
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Clean Air Markets Data and Maps database (http://camddataandmaps.epa.gov/).

    Table 3 shows that the states impacting the Huntington-Ashland Area 
reduced NOX and SO2 emissions from EGUs by 
547,538 tpy and 979,451 tpy, respectively, between 2002 and 2008. This 
table also includes emissions from the contributing states in 2010, 
which shows the continuing, generally downward trend of NOX 
and SO2 emissions from these states.

4. The West Virginia Portion of the Area Has a Fully Approvable 
Maintenance Plan Pursuant to Section 175A of the CAA

    In conjunction with its request to redesignate the West Virginia 
portion of the Area to attainment status, West

[[Page 68084]]

Virginia submitted a SIP revision to provide for maintenance of the 
1997 annual PM2.5 NAAQS in the Area for at least 10 years 
after redesignation. West Virginia is requesting that EPA approve this 
SIP revision as meeting the requirement of CAA section 175A. Once 
approved, the maintenance plan for the West Virginia portion of the 
Area will ensure that the SIP for West Virginia meets the requirements 
of the CAA regarding maintenance of the 1997 annual PM2.5 
NAAQS for this area.
a. Requirements of a Maintenance Plan
    Section 175 of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under CAA section 175A, 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, West Virginia 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 John Calcagni memorandum entitled ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' dated 
September 4, 1992, 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.
b. Analysis of the Maintenance Plan
(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 Huntington-Ashland Area monitored attainment of 
the 1997 annual PM2.5 standard, as described previously. The 
2008 point source inventory contained emissions for EGUs and non-EGUs 
in Cabell and Wayne Counties. For the portion of Mason County that is 
part of this nonattainment area, the Mountaineer Plant, Sporn Plant, 
and New Haven Plant are included in the inventory. WVDEP used data from 
EPA's CAMD database to compile the EGU and non-EGU inventory. For the 
2008 Area and Nonroad Mobile source emissions, WVDEP used the 2008 
National Emissions Inventory (NEI) version 1.5 data developed by EPA. 
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 WV. Information from the travel demand models 
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).
(2) Maintenance Demonstration
    On June 30, 2011, the WVDEP submitted a maintenance plan for the 
West Virginia portion of the Area as required by section 175A of the 
CAA. WVDEP uses projection inventories to show that the Area will 
remain in attainment and developed projection inventories for an 
interim year of 2015 and a maintenance plan end year of 2022 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 West Virginia portion of the Area 
through the year 2022. A maintenance demonstration need not be based on 
modeling. See Wall v. EPA, supra; Sierra Club v. EPA, supra. See also 
66 FR at 53099-53100; 68 FR at 25430-32. The projection inventories for 
the 2015 and 2022 point, area, and nonroad sources were based on the 
2012 and 2018 Visibility Improvement State and Tribal Assoiation of the 
Southeast (VISTAS)/Association of Southeastern Integrated Planning 
(ASIP) modeling inventory.
(a) Point Sources
    West Virginia developed the 2015 point source inventory by 
interpolation between VISTAS/ASIP 2012 and 2018 modeling inventory. The 
2022 EGU inventory for PM2.5, NOX, and 
SO2 was kept the same as the VISTAS/ASIP 2018 inventory. The 
2022 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 IPM 
model. 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 
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 VISTAS documentation provided by WVDEP and found the methodologies 
acceptable.
(b) Area Sources
    Area source emissions for 2015 were interpolated from the VISTAS/
ASIP 2012 and 2018 inventories. The 2022 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.
(c) Nonroad Sources
    Nonroad source emissions, including aircraft, locomotives, and 
commercial marine vessels (CMV) for 2015 were interpolated from the 
VISTAS/ASIP 2012 and 2018 inventories. CMV source emissions for 
SO2 included in the 2022 inventory were held constant at 
2018 levels because no further reduction in fuel sulfur content is 
expected. All other nonroad source emissions for 2022 were extrapolated 
from the VISTAS/ASIP 2012 and 2018 inventories.
(d) Onroad Mobile Sources
    The 2015 and 2022 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 provided by

[[Page 68085]]

WVDEP are approvable. For more information on EPA's analysis of the 
emissions inventories, see the TSD dated April 9, 2012, available in 
the docket for this rulemaking action at www.regulations.gov. Table 4 
shows the inventories for the 2008 attainment base year, the 2015 
interim year, and the 2022 maintenance plan end year for the entire 
nonattainment area.

    Table 4--Comparison of 2008, 2015, 2022 SO2, NOX, and Direct PM2.5 Emission Totals, in tpy for the Entire
                                        Huntington-Ashland Area WV-KY-OH
----------------------------------------------------------------------------------------------------------------
                                                                                                 Decrease from
                                             2008               2015               2022           2008 to 2022
----------------------------------------------------------------------------------------------------------------
SO2 (tpy)...........................            221,210            139,263             88,432            132,778
NOX (tpy)...........................            145,527             94,932             68,313             77,214
PM2.5 (tpy).........................             11,701             11,262             11,317                384
----------------------------------------------------------------------------------------------------------------

    Table 4 shows that, between 2008 and 2015, the entire Huntington-
Ashland Area is projected to reduce SO2 emissions by 81,947 
tpy, NOX emissions by 50,595 tpy, and direct 
PM2.5 emissions by 439 tons. Between 2008 and 2022, the area 
is projected to reduce SO2 emissions by 77,214 tpy, 
NOX emissions by 132,778 tpy, and direct PM2.5 
emissions by 384 tpy. Thus, the projected emissions inventories show 
that the area will continue to maintain the 1997 annual 
PM2.5 NAAQS during the 10 year maintenance period.
(3) Maintenance Demonstration Through 2023
    As noted in section 4.a of this document, CAA 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.'' 
September 4, 1992 Memorandum from John Calcagni, Director, AQMD, 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' p. 9. 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. Calcagni Memorandum, pp. 9-10.
    As discussed in detail above, the State's maintenance plan 
submission expressly documents that the Area's emissions inventories 
will remain below the attainment year inventories through 2022. In 
addition, for the reasons set forth below, EPA believes that the 
State's submission, in conjunction with additional supporting 
information, further demonstrates that the Area will continue to 
maintain the 1997 annual PM2.5 NAAQS at least through 2023:
     Significant emissions controls remain in place, and will 
continue to provide reductions that keep the Area in attainment. The 
Mountaineer Power Station was required by a permanent and enforceable 
consent decree to install SCR for NOX in 2008 and to operate 
its FGD continuously for SO2 in 2007. Philip Sporn Power 
Station installed SNCR to control NOX in 2009, and must 
retire, retrofit, or repower Unit 5 by the end of 2013.
     West Virginia has committed to maintain all of the control 
measures that are relied on, and will submit any changes to EPA for 
approval as a SIP revision.
     Emissions inventory levels for SO2 and 
NOX in 2022 are well below the attainment year inventory 
levels (see Table 4), and it is highly improbable that sudden increases 
would occur that could exceed the attainment year inventory levels in 
2023.
     The mobile source contribution has been determined to be 
insignificant, and is expected to remain insignificant in 2023 with 
fleet turnover in upcoming years that will result in cleaner vehicles 
and cleaner fuels.
     Air quality concentrations well below the standard, 
coupled with the emissions inventory projections through 2022 show that 
it would be very unlikely for a violation to occur in 2023. The 2009-
2011 design value of 12.1 [mu]g/m\3\ provides a sufficient margin in 
the event emissions increase, and continues the downward trend of 
monitored data in this Area for the last several years.
    Thus, if EPA finalizes its proposed approval of the redesignation 
request and maintenance plans in 2013, it is based on a showing, in 
accordance with CAA section 175A, that the State's maintenance plan 
provides for maintenance for at least ten years after redesignation, 
and into 2023.
(4) Monitoring Network
    West Virginia's maintenance plan includes a commitment to continue 
to operate its EPA-approved monitoring network, as necessary to 
demonstrate ongoing compliance with the NAAQS. West Virginia currently 
operates a PM2.5 monitor in Cabell County. Two of the 
remaining monitors are located in Ohio, and one monitor is located in 
Kentucky. 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.
(5) 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 to assure continued attainment with 
the 1997 annual PM2.5 NAAQS and will be used to assess 
emissions trends, as necessary.
(6) The Maintenance Plan's Contingency Measures
    The contingency plan provisions are designed to promptly correct a 
violation of the NAAQS that occurs after redesignation. Section 175A of 
the CAA requires that a maintenance plan include such contingency 
measures as EPA deems necessary to ensure that West Virginia will 
promptly correct a violation of the NAAQS that occurs after 
redesignation. The maintenance plan should identify the events that 
would ``trigger'' the adoption and implementation of a contingency 
measure(s), the contingency measure(s) that would be adopted and 
implemented, and the schedule indicating the time frame by which the 
state would adopt and implement the measure(s).
    The ability of the West Virginia portion of the Area to stay in 
compliance with the 1997 annual PM2.5 NAAQS after 
redesignation depends upon NOX and SO2 emissions 
in the Huntington-Ashland Area remaining at

[[Page 68086]]

or below 2008 levels. West Virginia's maintenance plan projects 
NOX and SO2 emissions to decrease and stay below 
2008 levels through at least the year 2022. West Virginia's maintenance 
plan outlines 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 when the average weighted annual mean for a 
single calendar year exceeds 15.5 ug/m3 within the maintenance area. In 
that case, a study will be conducted to determine if the emissions 
trends show increases; if 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.
    The Action Level Response will be prompted by any one of the 
following: A Warning Level Response study that shows emissions 
increases; a weighted annual mean over a two-year average that exceeds 
the standard; or a violation of the standard in the maintenance area. 
If an Action Level Response is triggered, 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's candidate contingency measures include the 
following: (1) Diesel reduction emission strategies, (2) alternative 
fuels and diesel retrofit programs for fleet vehicle operations, (3) 
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. These include: Industrial, commercial and institutional 
(ICI) boilers for SO2 and NOX controls, EGUs, 
process heaters, internal combustion engines, combustion turbines, 
other sources greater than 100 tons per year, fleet vehicles, and 
aggregate processing plants.
    For all of the reasons discussed above, EPA is proposing to approve 
West Virginia's 1997 annual PM2.5 maintenance plan for the 
West Virginia portion of the Area as meeting the requirements of CAA 
section 175A.

VII. Analysis of West Virginia's Transportation Conformity 
Insignificance Determination for the Huntington-Ashland Area

    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the state's air quality plan that 
addresses pollution from mobile sources. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of a 
NAAQS or an interim milestone. 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. If a transportation plan does not 
``conform,'' most new projects that would expand the capacity of 
roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA 
policy, criteria, and procedures for demonstrating and ensuring 
conformity of such transportation activities to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEBs contained 
therein ``adequate'' for use in determining transportation conformity. 
The process for determining adequacy is set forth in the guidance 
``Transportation Conformity Rule Amendments for the New 8-hour Ozone 
and PM2.5 National Ambient Air Quality Standards and Miscellaneous 
Revisions for Existing Areas; Transportation Conformity Rule 
Amendments; Response to Court Decision and Additional Rule Changes.'' 
69 FR 40004 (July 1, 2004). After EPA affirmatively finds the submitted 
MVEBs are adequate for transportation conformity purposes, in 
accordance with the guidance, the MVEBs can be used by state and 
Federal agencies in determining whether proposed transportation 
projects ``conform'' to the SIP as required by section 176(c) of the 
CAA.
    For budgets to be approvable, they must meet, at a minimum, EPA's 
adequacy criteria in 40 CFR 93.118(e)(4). However, the transportation 
conformity rule at 40 CFR 93.109(f) allows areas to forego 
establishment of MVEBs 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. EPA's 
rationale for providing for insignificance determinations may be found 
in the July 1, 2004 revision to the Transportation Conformity Rule. The 
general criteria for insignificance determinations, per 40 CFR 
93.109(f), 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 in the area.
    In West Virginia's June 30, 2011 submittal, the State provided 
information that projects that onroad mobile source NOX 
constitutes six percent or less of the Area's total NOX 
emissions in 2015 and 2022 due to continuing fleet turnover and that 
onroad mobile source PM2.5 emissions constitute less than 
three percent of the Area's total PM2.5 emissions. Both 
projections took into consideration future vehicle miles traveled (VMT) 
growth. In addition, neither EPA nor the State has made any findings 
that volatile organic compounds (VOCs), SO2, or ammonia 
(NH3) are significant contributors to PM2.5 
mobile emissions. The submittal meets the criteria in the relevant 
portions of 40 CFR 93.102 and 93.118 for an insignificance finding, and 
EPA agrees with the determination of insignificance for both 
NOX and PM2.5 for the West Virginia portion of 
the Area. For more information on EPA's review of the determination of 
insignificance, see the TSD dated May 30, 2012, available in the docket 
for this rulemaking action at www.regulations.gov.

VIII. Proposed Actions

    EPA is proposing to approve the redesignation of the West Virginia 
portion of the Area from nonattainment to attainment for the 1997 
annual PM2.5 NAAQS. EPA has evaluated West Virginia's 
redesignation request and determined that, upon approval of the base 
year emissions inventory in the separate rulemaking action noted 
previously, it would meet the redesignation criteria set forth in 
section 107(d)(3)(E) of the CAA. EPA believes that the monitoring data 
demonstrate that the Huntington-Ashland Area has attained the 1997 
annual PM2.5 NAAQS and will continue to attain the standard. 
Final approval of this redesignation request would change the 
designation of the West Virginia portion of the Area from nonattainment 
to attainment for the 1997 annual PM2.5 standard. EPA is 
also proposing to approve the associated

[[Page 68087]]

maintenance plan for the West Virginia portion of the Area, submitted 
on June 30, 2011, as a revision to the West Virginia SIP because it 
meets the requirements of CAA section 175A as described previously in 
this notice. EPA is also proposing to approve the insignificance 
determination for on-road motor vehicle contribution of 
PM2.5, NOX, and SO2, submitted by West 
Virginia for the West Virginia portion of the Area in conjunction with 
its redesignation request. As noted previously, the 30 day public 
comment period for the proposed insignificance determination started on 
November 5, 2012 and will end on December 4, 2012. EPA is soliciting 
public comments on the issues discussed in this document. These 
comments will be considered before taking final action.

IX. Statutory and Executive Order Reviews

    Under the CAA, 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 
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 approval of West Virginia's 
redesignation request, maintenance plan, and transportation conformity 
insignificance determination for the Huntington-Ashland Area for the 
1997 annual PM2.5 NAAQS 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 oxides, PM2.5, Particulate matter, 
Reporting and recordkeeping requirements, Sulfur oxides.

40 CFR Part 81

    Air pollution control, National parks, Wilderness Areas.

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

    Dated: November 7, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-27785 Filed 11-14-12; 8:45 am]
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