[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Proposed Rules]
[Pages 73575-73586]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29866]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2012-0368; FRL-9761-6]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Redesignation of the West Virginia Portion of the 
Wheeling, WV-OH 1997 Annual Fine Particulate Matter (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 Wheeling, 
WV-OH fine particulate matter (PM2.5) nonattainment area 
(``Wheeling Area'' or ``Area'') be redesignated as attainment for the 
1997 annual PM2.5 national ambient air quality standard 
(NAAQS). The Wheeling Area is comprised of Marshall and Ohio Counties 
in West Virginia and Belmont County in Ohio. In conjunction with its 
redesignation request, West Virginia submitted a SIP revision 
consisting of a maintenance plan for the West Virginia portion of the 
Area that provides for continued attainment of the 1997 annual 
PM2.5 NAAQS for at least 10 years after redesignation. The 
maintenance plan includes the 2005 base year emissions inventory that 
EPA is proposing to approve in this rulemaking in accordance with the 
requirements of the Clean Air Act (CAA). The maintenance plan also 
includes an insignificance determination for the onroad motor vehicle 
contribution of PM2.5, nitrogen oxides (NOX) and 
sulfur dioxide (SO2) for the West Virginia portion of the 
Area. It should be noted that EPA has already initiated a comment 
period on the proposed insignificance determination for the West 
Virginia portion of the Area on the Web site for the Office of 
Transportation and Air Quality (OTAQ) to allow for a 30-day review of 
this proposed insignificance determination in conjunction with this 
proposed rulemaking.\1\ EPA is proposing to find that West Virginia's 
insignificance determination for transportation conformity is adequate. 
EPA previously determined that the West Virginia portion of the 
Wheeling Area has attained the 1997 annual PM2.5 NAAQS, and 
EPA is 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, the maintenance plan, the 
2005 base year emissions inventory, 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 CAA. EPA is taking 
separate action to propose redesignation for the Ohio portion of the 
Wheeling 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.htm) 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 January 10, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0368 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-2012-0368, 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-
2012-0368. EPA's policy is that all comments

[[Page 73576]]

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, (215) 814-2182, or by 
email at quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

I. Summary of Actions

    On March 8, 2012, the State of West Virginia through WVEP 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, WVDEP 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 the 
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 for the 1997 annual 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 its 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 Ohio portion of the Area. EPA is taking separate 
action to redesignate the Ohio portion.
    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 onroad motor vehicle contribution for 
PM2.5, SO2 and NOX in the West 
Virginia portion of the Area for transportation conformity purposes. 
EPA has determined that the onroad 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. Furthermore, under section 
172(c)(3) of the CAA, EPA is proposing to approve the 2005 base year 
emissions inventory for the West Virginia portion of the Area as part 
of West Virginia's maintenance plan for the 1997 annual 
PM2.5 NAAQS. EPA's analysis for 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 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. 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 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.
    On January 5, 2005 (70 FR 944), as supplemented on April 14, 2005 
(70 FR 19844), EPA designated the Wheeling Area as nonattainment for 
the 1997 PM2.5 NAAQS. The Wheeling Area is comprised of 
Marshall and Ohio Counties in West Virginia and Belmont County in Ohio. 
On November 13, 2009 (74 FR 58688), EPA promulgated designations for 
the 24-hour standard established in 2006, designating the Wheeling Area 
as attaining this standard. In that action, EPA also clarified the 
designations for the NAAQS promulgated in 1997, stating that the 
Wheeling Area remained designated nonattainment for the 1997 annual 
PM2.5 NAAQS, but was designated attainment for the 1997 24-
hour NAAQS. Today's action therefore, does not address attainment of 
either the 1997 or the 2006 24-hour PM2.5 NAAQS.
    In response to legal challenges of the annual standard promulgated 
in 2006, the United States Court of Appeals for the District of 
Columbia Circuit (the 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 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 Area is designated nonattainment for the annual standard 
promulgated in 1997, today's action addresses redesignation to 
attainment only for this standard.

[[Page 73577]]

    In the final rulemaking action dated December 2, 2011 (76 FR 
75464), EPA determined, pursuant to CAA section 179(c), that the entire 
Wheeling 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 1997 annual 
PM2.5 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 (EGUs) to limit the interstate transport of 
these pollutants and the ozone and PM2.5 they form in the 
atmosphere. See 70 FR 25162. The 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). 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 Court 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 (D.C. Cir., August 21, 2012).\2\
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    \2\ The Court's judgment is not final, as of November 16, 2012, 
as the mandate has not yet been issued.
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    In light of these unique circumstances and for the reasons 
explained below, EPA proposes to approve the redesignation request and 
the related SIP revision for Marshall and Ohio Counties in West 
Virginia, including West Virginia's plan for maintaining attainment of 
the 1997 annual PM2.5 NAAQS for the West Virginia portion of 
the Area. The air quality modeling analysis conducted for the Transport 
Rule demonstrates that the Wheeling 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,'' Appendix B, B-115-B-134. This modeling is available 
in the docket for the Transport Rule rulemaking. See Docket ID. No. 
EPA-HQ-OAR-2009-0491. Nothing in the Court'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 
May 1, 2008 and was approved by EPA on August 4, 2009 (74 FR 38536) 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 West Virginia is 
relying on CAIR in its maintenance plan, the recent directive from the 
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 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 
have SIPs that eliminate significant downwind contributions.
    Further, in vacating the Transport Rule and requiring EPA to 
continue administering CAIR, the 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, 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: (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 General Preamble 
for the Implementation of Title I of the CAA Amendments of 1990 (57 FR 
13498, April 16, 1992) (supplemented at 57 FR 18070, April 28, 1992) 
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

[[Page 73578]]

D. Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994.

IV. Reasons for Proposing These Actions

    On March 8, 2012, the WVDEP requested redesignation of the West 
Virginia portion of the Area to attainment for the 1997 annual 
PM2.5 NAAQS. As 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 Wheeling Area has attained the 1997 annual 
PM2.5 NAAQS and 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 EPA's Proposed Actions

    Final approval of the redesignation request would change the 
official designation of the West Virginia portion of 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, SO2 and NOx for transportation 
conformity purposes for the years 2015 and 2022 in the West Virginia 
portion of the Area. Approval of the 2005 base year emissions 
inventory, which is part of the maintenance plan, will satisfy the 
inventory requirements under section 172(c)(3) of the CAA.

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 2005 base year emissions inventory 
that is being proposed in this rulemaking. The following is a 
description of how the WVDEP March 8, 2012 submittal satisfies the 
requirements of section 107(d)(3)(E) of the CAA.

1. Attainment

    As noted above, in a final rulemaking action dated December 2, 2011 
(76 FR 75464), EPA determined, pursuant to CAA section 179(c), that the 
entire Wheeling Area was 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 for EPA's determination of 
attainment for this Area, published on July 21, 2011 (76 FR 43634). EPA 
has reviewed more recent data in its Air Quality System (AQS) database, 
including certified, quality-assured data for the period from 2008-2010 
and 2009-2011. This data shown in Table 1, shows that the Wheeling 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 Wheeling Area has attained and continues to attain the 1997 
annual PM2.5 NAAQS.

   Table 1--Design Value Concentrations for the West Virginia Portion of the Wheeling 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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Marshall, WV..............................................       54-051-1002              13.1              13.0
Ohio, WV..................................................       54-069-0010              12.4              11.9
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Note: There is no monitor in Belmont County, Ohio.

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 2005 base year emissions inventory, as discussed 
below in this proposed rulemaking, 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 section 
110(k) of the CAA. EPA notes that SIPs must be fully approved only with 
respect to applicable requirements.
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 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;

[[Page 73579]]

     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, 
EPA has required certain states to establish programs to address the 
interstate 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, EPA does 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. EPA concludes 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 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 
at 37890, June 19, 2000) and in the Pittsburgh, Pennsylvania 
redesignation (66 FR at 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 
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 Wheeling Area. Therefore, 
EPA believes that these SIP elements are not applicable requirements 
for purposes of review of West Virginia'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 meet a 
variety of other requirements. On November 20, 2009 (74 FR 60199), EPA 
made a determination that the Wheeling Area is attaining the 1997 
annual PM2.5 NAAQS. This determination was based upon 
complete, quality-assured, quality controlled, and certified ambient 
air monitoring data that show that the area monitored attainment of the 
1997 annual PM2.5 NAAQS during the 2006-2008 monitoring 
period. Available monitoring data for 2009, 2010 and 2011 are 
consistent with continued attainment of the standard. Pursuant to 40 
CFR 51.2004(c), upon determination by EPA that an area designated 
nonattainment of the PM2.5 NAAQS has attained the standard, 
the requirement for such an area to submit an attainment demonstration 
and associated reasonably achievable control technology (RACT)/
reasonably achievable control measures (RACM), a reasonable further 
progress (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. As a result of the determination of 
attainment, the only remaining requirement under CAA section 172 to be 
considered is the emissions inventory required under CAA section 
172(c)(3).
    In this rulemaking action, EPA is proposing to approve West 
Virginia's 2005 base year emissions inventory in accordance with 
section 172(c)(3) of the CAA. Final approval of the 2005 base year 
emissions inventory will satisfy the emissions inventory requirement 
under section 172(c)(3) of the CAA.
    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 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 RACT/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 and approval of a 
comprehensive, accurate and current inventory of actual emissions. As 
part of the maintenance plan submitted by WVDEP, West Virginia 
submitted a 2005 base year emissions inventory that meets this 
requirement. The 2005 base year emissions inventory compiled by WVDEP 
for the West Virginia portion of the Area contains PM2.5 
(including condensables), SO2 and NOX emissions. 
The emissions cover the general source categories of point sources, 
area sources, onroad mobile sources and nonroad mobile sources. The 
proposed approval of the 2005 base year emissions inventory in this 
rulemaking action will, when finalized, meet the requirements of CAA 
section 172(c)(3). For more information on the evaluation and EPA's 
analysis of the 2005 base year emissions inventory, see Appendix B of 
the State submittal and the emissions inventory technical support 
document (TSD) dated May 18, 2012, available on

[[Page 73580]]

line at www.regulations.gov, Docket ID No. EPA-OAR-R03-2012-0368. A 
summary of the 2005 base year emissions inventory is shown in Tables 2 
and 3.

  Table 2--Marshall County, West Virginia, Summary of 2005 Base Year Emissions Inventory in Tons Per Year (tpy)
----------------------------------------------------------------------------------------------------------------
                                                                   SO2               NOX              PM2.5
----------------------------------------------------------------------------------------------------------------
Point (EGU)...............................................            96,378            31,541             3,826
Non EGU...................................................            19,110             3,131               525
Area......................................................               102               184               316
Locomotive & Marine (LM)..................................                31               671                25
Nonroad...................................................                10               113                12
Onroad....................................................                 9               735                26
                                                           -----------------------------------------------------
    Total.................................................           115,641            36,375             4,731
----------------------------------------------------------------------------------------------------------------


            Table 3--Ohio County, West Virginia, Summary of 2005 Base Year Emissions Inventory in tpy
----------------------------------------------------------------------------------------------------------------
                                                                   SO2               NOX              PM2.5
----------------------------------------------------------------------------------------------------------------
Point (EGU)...............................................                 0                 0                 0
Non EGU...................................................                 1                 6                11
Area......................................................               232               613               263
Locomotive & Marine (LM)..................................                44               972                38
Nonroad...................................................                15               170                21
Onroad....................................................                16              1230                40
                                                           -----------------------------------------------------
    Total.................................................               308              2991               372
----------------------------------------------------------------------------------------------------------------

    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 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 Wheeling 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 NAAQS. 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 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 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 (December 7, 
1995) (discussing Tampa, Florida). Thus, EPA determines that the 
Wheeling Area has satisfied all applicable requirements for purposes of 
redesignation under CAA section 110, and upon final approval of the 
2005 base year emissions inventory, 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 2005 base year emissions inventory, 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 redesignaton to attainment for the 1997 annual PM2.5 
NAAQS. As noted above, in this rulemaking action, EPA is proposing to 
approve the West Virginia portion of the Area's 2005 base year 
emissions inventory (submitted as part of its maintenance plan) as 
meeting the requirement of section 172(c)(3) of the CAA for the 1997 
annual PM2.5 NAAQS. Therefore, upon final approval of the 
2005 base year emissions inventory,

[[Page 73581]]

EPA will have satisfied all applicable requirements under part D of 
Title I of the CAA for the West Virginia portion of the Area.

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 
demonstration, West Virginia has calculated the change in emissions 
between 2005, one of the years used to designate the Wheeling Area as 
nonattainment, and 2008, one of the years the Wheeling Area monitored 
attainment. See Table 4 below. 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 Wheeling 
Area and contributing areas have implemented in recent years.

      Table 4--Comparison of 2005 Base Year and 2008 Attainment Year Reductions in tpy in the Wheeling Area
----------------------------------------------------------------------------------------------------------------
                                                                 2005              2008             Decrease
----------------------------------------------------------------------------------------------------------------
EGU NOX..................................................            35,691            27,437             8,254
EGU PM2.5................................................             3,920             4,510              (590)
EGU SO2..................................................           133,708            50,200            83,508
Onroad NOX...............................................             5,145             4,272               873
Onroad PM2.5.............................................               172               145                27
Onroad SO2...............................................                56                18                38
Nonroad NOX..............................................               505               463                42
Nonroad PM2.5............................................                60                54                 6
Nonroad SO2..............................................                47                13                34
----------------------------------------------------------------------------------------------------------------

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. 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 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.
(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 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.
(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 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. 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 CASPR to address SO2 
and NOX emissions from EGUs and certain non-EGUs across the 
eastern United States. The affected EGUs in the Wheeling Area are 
located at the Ohio Power Mitchell Plant and the Ohio Power Kammer 
Plant in Marshall County which are both owned and/or operated by 
American Electric Power (AEP).
(1) NOX SIP Call
    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. (63 
FR 57356, October 27, 1998). EPA approved West Virginia's Phase I 
NOX SIP Call rule in 2002 and 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.
    As previously discussed, the Court'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

[[Page 73582]]

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 
Wheeling 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 Wheeling 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 EGUs in Marshall County, the partial county portion of 
the West Virginia portion of the Area. These are the Ohio Power Kammer 
Plant and Ohio Power Mitchell Plant in Marshall County which are owned 
and/or operated by AEP. As part of a Federally enforceable consent 
decree with AEP, the Mitchell Plant was required, starting in January 
2009, to operate selective catalytic reduction (SCR) continuously to 
control emissions of NOX and to operate continuously its 
Flue Gas Desulfurization (FGD) to reduce SO2 emissions 
starting in December 2007.
d. Controls on PM2.5 Precursors From EGUs in the Area
    Since 2008, additional controls have and will be installed on EGUs 
within the West Virginia portion of the Area and the State of Ohio, 
which will continue to contribute to the reductions in precursor 
pollutants for PM2.5. The Mitchell Plant installed and began 
operation of SCR to control NOX emissions on Units 1 and 2 
starting in January 2009, and the Kammer Plant may be required to 
retire, retrofit, or repower Units 1-3 by December 31, 2018. EGUs in 
Belmont County, Ohio have installed controls as a result of a Federally 
enforceable consent decree. In 2008, two units, 4 and 
5 at the R.E. Burger First Energy station installed selective 
non-catalytic reduction (SNCR) to reduce NOX emissions. Both 
units are required by 2012 to operate the SNCR continuously to reduce 
NOX emissions.
e. Controls on PM2.5 Precursors From EGUs in Contributing 
States
    Because PM2.5 concentrations in the Wheeling Area are 
impacted by the transport of sulfates and nitrates, 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. EPA reviewed SO2 and 
NOX emissions from EGUs in states that contribute to the 
Area, and the data show that SO2 and NOX 
emissions have been decreasing. See EPA's Air Markets Program Database 
(AMPD) \3\ (http://ampd.epa.gov/ampd ).
---------------------------------------------------------------------------

    \3\ Formerly, the Clean Air Markets Division (CAMD) database.
---------------------------------------------------------------------------

    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 consent decrees affecting EGUs in 
the Wheeling Area, which are expected to continue into the future.

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 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 requirements of section 175A of the CAA. 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 1997 annual 
PM2.5 violations. The Calcagni Memorandum dated September 4, 
1992 provides additional guidance on the content of a maintenance plan. 
The Calcagni 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 Wheeling 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 Marshall and Ohio Counties in West Virginia. WVDEP used the 2008 
annual emissions inventory submitted to EPA's National Emissions 
Inventory (NEI) database and EPA's AMPD 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

[[Page 73583]]

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 March 8, 2012, WVDEP submitted its 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 Association of 
the Southeast (VISTAS)/Association of Southeastern Integrated Planning 
(ASIP) modeling inventory.
    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 
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 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. 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 from 
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. 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 discussed above 
as provided by WVDEP are approvable. For more information on EPA's 
evaluation and analysis of the emissions inventory, see Appendix B of 
the State submittal and the May 18, 2012 TSD, available on line at 
www.regulations.gov, Docket ID No. EPA-OAR-R03-2012-0368. Table 5 below 
shows the inventories for the 2008 attainment year, the 2015 interim 
year, and the 2022 maintenance plan end year for the entire Area.

     Table 5--Comparison of 2008, 2015, and 2022 SO2, NOX, and Direct PM2.5 Emission Totals for the Wheeling
                                        Nonattainment Area WV-OH (in Tpy)
----------------------------------------------------------------------------------------------------------------
                                                                   SO2               NOX              PM2.5
----------------------------------------------------------------------------------------------------------------
2008 (attainment).........................................            67,103            35,971             6,001
2015 (interim)............................................            36,843            16,204             3,436
2015 (projected decrease).................................            30,260            19,767             2,565
2022 (maintenance)........................................            31,487            15,390             3,472
2022 (projected decrease).................................            35,616            20,581             2,529
----------------------------------------------------------------------------------------------------------------

    Table 5 shows that between 2008 and 2015, the entire Wheeling Area 
is projected to reduce SO2 emissions by 30,260 tpy, 
NOX emissions by 19,767 tpy, and direct PM2.5 
emissions by 2,565 tpy. Between 2008 and 2022, the Area is projected to 
reduce SO2 emissions by 35,616 tpy, NOX emissions 
by 20,581 tpy, and direct PM2.5 emissions by 2,529 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 VI.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 10 years following 
redesignation.'' September 4, 1992 Calcagni Memorandum at 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. See Calcagni 
Memorandum at 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 at least 
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 will remain in place and 
will continue to provide reductions that will keep the Area in 
attainment. As part of a Federally enforceable consent decree with AEP, 
the Ohio Power Mitchell Plant in Marshall County was required starting 
in January 2009 to operate its SCR continuously to control emissions of 
NOX and to operate continuously its

[[Page 73584]]

FDG to reduce SO2 starting in December 2007. In addition, 
AEP is required by the Federally enforceable consent decree to retire, 
retrofit, or repower additional units such as Kammer Units 1-3 by the 
end of December 2018.
     West Virginia has committed to maintain all of the control 
measures upon which West Virginia relies in its March 8, 2012 submittal 
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 5), and EPA believes that 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 which are well below the 
standard, coupled with the emissions inventory projections through 
2022, demonstrate that it would be very unlikely for a violation to 
occur in 2023. The 2009-2011 design value of 13.0 [mu]g/m\3\ provides a 
sufficient margin in the event of any emissions increase, and the 
design value reflects a continued downward trend in monitored data in 
the Area for the last several years.
    Thus, even if EPA finalizes its proposed approval of the 
redesignation request and maintenance plan in 2013, EPA's approval is 
based on a showing, in accordance with CAA section 175A, that West 
Virginia's maintenance plan provides for maintenance for at least 10 
years after redesignation and clearly into 2023.
(4) Monitoring Network
    EPA has determined that 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 two PM2.5 monitors in the 
Wheeling Area. One is located in Marshall County, and the other one is 
in Ohio County. In its March 8, 2012 submittal, West Virginia stated 
that it 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). EPA has determined that WVDEP will 
continue to compare emissions information to the attainment year 
inventory to assure continued attainment with the 1997 annual 
PM2.5 NAAQS and that WVDEP will use this information to 
assess emissions trends, as necessary.
(6) The Maintenance Plan's Contingency Measures
    The contingency plan provisions for maintenance plans 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 
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).
    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 Wheeling Area remaining at 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 [mu]g/m\3\ 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 tpy, fleet vehicles, concrete 
manufacturers, and aggregate processing plants. EPA finds that the West 
Virginia maintenance plan for the Wheeling Area includes appropriate 
contingency measures as necessary to ensure West Virginia will promptly 
correct any violation of the NAAQS that occurs after redesignation. 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 section 
175A of the CAA.

VII. Analysis of West Virginia's Transportation Conformity 
Insignificance Determination for the Wheeling 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

[[Page 73585]]

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 
PM2.5 and PM2.5 NAAQS and Miscellaneous Revisions 
of 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 March 8, 2012 submittal, the State provided 
information that projects that onroad mobile source NOX 
constitutes less than 12 and a half percent 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 two and a half 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 a significant 
contributor to PM2.5 mobile emissions. Therefore, the March 
8, 2012 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 SO2, NOX 
and PM2.5 for the West Virginia portion of the Area. As 
previously discussed, EPA already initiated a comment period on 
November 5, 2012 on the proposed insignificance determination for the 
West Virginia portion of the Area on the OTAQ Web site to allow for a 
30-day review of this proposed insignificance determination in 
conjunction with this proposed rulemaking. EPA is proposing to find 
that West Virginia's insignificance determination for transportation 
conformity is adequate. For more information on EPA's insignificance 
findings, see the TSD dated June 5, 2012, available on line at 
www.regulations.gov, Docket ID No. EPA-OAR-R03-2012-0368.

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 it meets the redesignation 
criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes 
that the monitoring data demonstrate that the Wheeling 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 p.m.2.5 annual 
NAAQS. EPA is also proposing to approve the associated maintenance plan 
for the West Virginia portion of the Area submitted on March 8, 2012, 
as a revision to the West Virginia SIP because it meets the 
requirements of section 175A of the CAA as described previously in this 
notice. EPA is also proposing to approve the insignificance 
determination for onroad motor vehicle contribution of 
PM2.5, NOX and SO2 submitted by the 
West Virginia portion of the Area in conjunction with West Virginia's 
redesignation request. As noted previously, EPA had already initiated a 
comment period on the proposed insignificance determination for the 
West Virginia portion of the Area in the OTAQ Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm) to allow for a 
30-day review of this proposed determination in conjunction with this 
proposed rulemaking. The 30-day comment period started on November 5, 
2012 and will end on December 5, 2012. In addition, as part of the 
maintenance plan, EPA is proposing to approve the 2005 base year 
emissions inventory as meeting the requirement in section 172(c)(3) of 
the CAA. 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);

[[Page 73586]]

     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 request, maintenance plan, 2005 base year emissions 
inventory, and transportation conformity insignificance determination 
for the Wheeling 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 dioxide, 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 21, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2012-29866 Filed 12-10-12; 8:45 am]
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