[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Proposed Rules]
[Pages 40655-40663]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16060]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2012-0386; FRL-9829-5]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Redesignation of the West Virginia Portion of the 
Parkersburg-Marietta, WV-OH 1997 Annual Fine Particulate Matter 
Nonattainment Area to Attainment and Approval of the Associated 
Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; supplemental.

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SUMMARY: EPA is issuing a supplement to its proposed approval of the 
State of West Virginia's request to redesignate the West Virginia 
portion of the Parkersburg-Marietta, WV-OH fine particulate matter 
(PM2.5) nonattainment area (Parkersburg-Marietta Area or 
Area) to attainment for the 1997 annual PM2.5 national 
ambient air quality standard (NAAQS). This supplemental proposal 
revises and expands the basis for proposing approval of the State's 
request in light of developments since EPA issued its initial proposal 
on December 11, 2012. This supplemental proposal addresses the effects 
of two decisions of the United States Court of Appeals for the District 
of Columbia (D.C. Circuit Court): The D.C. Circuit Court's August 21, 
2012 decision to vacate and remand to EPA the Cross-State Air Pollution 
Control Rule (CSAPR); and the D.C. Circuit Court's January 4, 2013 
decision to remand to EPA two final rules implementing the 
PM2.5 NAAQS. EPA is seeking comment only on the issues 
raised in this supplemental proposal and is not reopening for comment 
other issues raised in its prior proposal.

DATES: Written comments must be received on or before August 7, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0386 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2012-0386, Cristina Fernandez, Associate 
Director, Office of Air Quality Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0386. 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.

[[Page 40656]]


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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Specific Issues on Which EPA Is Taking Comments
    A. Effect of the August 21, 2012 D.C. Circuit Court Decision 
Regarding EPA's CSAPR
    1. Background
    2. Supplemental Proposal on This Issue
    B. Effect of the January 4, 2013 D.C. Circuit Court Decision 
Regarding the PM2.5 Implementation Under Subpart 4
    1. Background
    2. Supplemental Proposal on This Issue
    a. Applicable Requirements for Purposes of Evaluating the 
Redesignation Request
    b. Subpart 4 Requirements and Parkersburg-Marietta Area's 
Redesignation Request
    c. Subpart 4 and Control of PM2.5 Precursors
    d. Maintenance Plan and Evaluation of Precursors
III. Summary of Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

    On March 5, 2012, the State of West Virginia through the West 
Virginia Department of Environmental Protection (WVDEP) formally 
submitted a request to redesignate the West Virginia portion of the 
Parkersburg-Marietta 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.
    On December 11, 2012 (77 FR 73560), EPA published a notice of 
proposed rulemaking (NPR or the December 11, 2012 NPR) determining that 
the Parkersburg-Marietta Area has attained the 1997 annual 
PM2.5 NAAQS and that the Area has met the requirements for 
redesignation under section 107(d)(3)(E) of the Clean Air Act (CAA) 
upon approval of the base year emissions inventory. On December 12, 
2012 (77 FR 73924), EPA approved the base year emissions inventory 
which included emissions estimates that cover the general source 
categories of point, area, nonroad mobile, onroad mobile, and biogenic 
sources. The pollutants that comprise the inventory are nitrogen oxides 
(NOX), volatile organic compounds (VOCs), PM2.5, 
coarse particles (PM10), ammonia (NH3), and 
sulfur dioxide (SO2). This emissions inventory satisfies the 
requirement of section 172(c)(3) of the CAA, which requires states to 
submit a comprehensive, accurate, and current emissions inventory for a 
nonattainment area. For purposes of the PM2.5 NAAQS, this 
emissions inventory addresses not only direct emissions of 
PM2.5, but also emissions of all precursors with the 
potential to participate in PM2.5 formation, i.e., 
SO2, NOX, VOC and NH3.
    In the December 11, 2012 NPR, EPA proposed several actions related 
to the redesignation of the Area to attainment for the 1997 annual 
PM2.5 NAAQS. First, EPA proposed to approve West Virginia's 
request to change the legal definition of the West Virginia portion of 
the Parkersburg- Marietta Area from nonattainment to attainment for the 
1997 annual PM2.5 NAAQS. Second, EPA proposed to approve the 
maintenance plan for the West Virginia portion of the Area as a 
revision to the West Virginia SIP because the plan meets the 
requirements of section 175A of the CAA. Third, EPA proposed to approve 
the insignificance determination for the onroad motor vehicle 
contribution of PM2.5, NOX and SO2 in 
the West Virginia portion of the Area for transportation conformity 
purposes. EPA received no comments in response to the December 11, 2012 
NPR proposing approval of the above described redesignation request, 
maintenance plan and the insignificance determination. EPA is not 
reopening the public comment period to submit comment on the issues 
addressed in the December 11, 2012 NPR.
    EPA today is issuing a supplement to its December 11, 2012 NPR. 
This supplemental NPR addresses two recent decisions of the D.C. 
Circuit Court which affect the proposed redesignation and which have 
arisen since the issuance of the NPR: (1) The D.C. Circuit Court's 
August 21, 2012 decision to vacate and remand to EPA the CSAPR and (2) 
the D.C. Circuit Court's January 4, 2013 decision to remand to EPA two 
final rules implementing the PM2.5 NAAQS. Therefore, EPA's 
supplemental proposal revises and expands the basis for EPA's proposed 
approval of West Virginia's request to designate the Parkersburg-
Marietta Area to attainment for the 1997 annual PM2.5 NAAQS, 
in light of these developments since EPA's initial NPR.

II. Specific Issues on Which EPA Is Taking Comments

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

1. Background
    In its December 11, 2012 NPR to redesignate the Parkersburg-
Marietta Area, EPA proposed to determine that the emission reduction 
requirements that contributed to attainment of the 1997 annual 
PM2.5 standard in the nonattainment area could be considered 
permanent and enforceable. EPA recently promulgated CSAPR (76 FR 48208, 
August 8, 2011) to replace Clean Air Interstate Rule (CAIR), which has 
been in place since 2005. See 76 FR 59517. CAIR requires significant 
reductions in emissions of SO2 and NOX from 
electric generating units to limit the interstate transport of these 
pollutants and the ozone and PM2.5 they form in the 
atmosphere. See 76 FR 70093. The D.C. Circuit Court initially vacated 
CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but 
ultimately remanded that 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).
    CSAPR included regulatory changes to sunset (i.e., discontinue) 
CAIR and the CAIR Federal Implementation Plans (FIPs) for control 
periods in 2012 and beyond. See 76 FR 48322. Although West Virginia's 
redesignation request and maintenance plan relied on reductions 
associated with CAIR, EPA proposed to approve the request based in part 
on the fact that CAIR was to remain in force through the end of 2011 
and CSAPR would achieve ``similar or greater reductions in the relevant 
areas in 2012 and beyond.'' See 76 FR 59517.
    On December 30, 2011, the D.C. Circuit Court issued an order 
addressing the status of CSAPR and CAIR in response to motions filed by 
numerous parties seeking a stay of CSAPR pending judicial review. In 
that order, the D.C. Circuit Court stayed CSAPR pending resolution of 
the petitions for review of that rule in EME Homer City Generation, 
L.P. v. EPA (No. 11-1302 and consolidated cases). The D.C. Circuit 
Court also indicated that EPA was expected to continue to administer 
CAIR in the interim until judicial review of CSAPR was completed.
    On August 21, 2012, the D.C. Circuit Court issued the decision in 
EME Homer City, to vacate and remand CSAPR and ordered EPA to continue 
administering CAIR ``pending . . . development of a valid 
replacement.'' EME Homer City at 38. The D.C. Circuit Court denied all 
petitions for rehearing on January 24, 2013. EPA and other parties have 
filed petitions for certiorari to the U.S. Supreme Court, but those 
petitions have not been acted on to date. Nonetheless, EPA intends to 
continue to act in accordance with the EME Homer City opinion.

[[Page 40657]]

2. Supplemental Proposal on This Issue
    In light of these unique circumstances and for the reasons 
explained below, EPA in this portion of its supplemental rule is 
seeking comment limited to the impact of the D.C. Circuit Court's 
decision in EME Homer City ruling on EPA's proposal to approve the 
redesignation request and the related SIP revisions for the 
Parkersburg-Marietta Area, including West Virginia's plan for 
maintaining attainment of the 1997 annual PM2.5 standard in 
the Area. As explained in greater detail below, to the extent that 
attainment is due to emission reductions associated with CAIR, EPA is 
here determining that those reductions are sufficiently permanent and 
enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A.
    As directed by the D.C. Circuit Court, CAIR remains in place and 
enforceable until EPA promulgates a valid replacement rule to 
substitute for CAIR. West Virginia's SIP revision lists CAIR as a 
control measure that was adopted by the State in 2006 and required 
compliance by January 1, 2009. CAIR was thus in place and getting 
emission reductions when Parkersburg-Marietta began monitoring 
attainment of the 1997 annual PM2.5 standard during the 
2006-2008 time period. The quality-assured, certified monitoring data 
continues to show the area in attainment of the 1997 PM2.5 
standard through 2011.
    To the extent that West Virginia is relying on CAIR in its 
maintenance plan to support continued attainment into the future, the 
recent directive from the D.C. Circuit Court in EME Homer City ensures 
that the reductions associated with CAIR will be permanent and 
enforceable for the necessary time period. EPA has been ordered by the 
D.C. Circuit Court to develop a new rule to address interstate 
transport to replace CSAPR, and the opinion makes clear that after 
promulgating that new rule EPA must provide states an opportunity to 
draft and submit SIPs to implement that rule. Thus, CAIR will remain in 
place until EPA has promulgated a final rule through a notice-and-
comment rulemaking process, states have had an opportunity to draft and 
submit SIPs in response to it, 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. The D.C. Circuit Court's 
clear instruction to EPA is that it must continue to administer CAIR 
until a valid replacement exists, and thus EPA believes that CAIR 
emission reductions may be relied upon until the necessary actions are 
taken by EPA and states to administer CAIR's replacement. Furthermore, 
the D.C. Circuit Court's instruction provides an additional backstop by 
definition, any rule that replaces CAIR and meets the D.C. Circuit 
Court's direction would require upwind states to have SIPs that 
eliminate any significant contributions to downwind nonattainment and 
prevent interference with maintenance in downwind areas.
    Moreover, in vacating CSAPR and requiring EPA to continue 
administering CAIR, the D.C. Circuit Court emphasized that the 
consequences of vacating CAIR ``might be more severe now in light of 
the reliance interests accumulated over the intervening four years.'' 
EME Homer City, 696 F.3d at 38. The accumulated reliance interests 
include the interests of states that 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 D.C. Circuit Court sought to avoid by ordering 
EPA to continue administering CAIR. For these reasons also, EPA 
believes it is appropriate to allow states to rely on CAIR, and the 
existing emissions reductions achieved by CAIR, as sufficiently 
permanent and enforceable for regulatory purposes such as 
redesignations. Following promulgation of the replacement rule for 
CSAPR, EPA will review existing SIPs as appropriate to identify whether 
there are any issues that need to be addressed.

B. Effect of the January 4, 2013 D.C. Circuit Court Decision Regarding 
the PM2.5 Implementation Under Subpart 4

1. Background
    On January 4, 2013, in Natural Resources Defense Council v. EPA, 
the D.C. Circuit Court remanded to EPA the ``Final Clean Air Fine 
Particle Implementation Rule'' (72 FR 20586, April 25, 2007) and the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR 
28321, May 16, 2008) (collectively, ``1997 PM2.5 
Implementation Rule''). 706 F.3d 428 (D.C. Cir. 2013). The D.C. Circuit 
Court found that EPA erred in implementing the 1997 PM2.5 
NAAQS pursuant to the general implementation provisions of subpart 1 of 
Part D of Title I of the CAA, rather than the particulate-matter-
specific provisions of subpart 4 of Part D of Title I.
2. Supplemental Proposal on This Issue
    In this portion of EPA's supplemental proposal, EPA is soliciting 
comment on the limited issue of the effect of the D.C. Circuit Court's 
January 4, 2013 ruling on the proposed redesignation. As explained 
below, EPA is proposing to determine that the D.C. Circuit Court's 
January 4, 2013 decision does not prevent EPA from redesignating the 
Parkersburg-Marietta Area to attainment. Even in light of the D.C. 
Circuit Court's decision, redesignation for this Area is appropriate 
under the CAA and EPA's longstanding interpretations of the CAA's 
provisions regarding redesignation. EPA first explains its longstanding 
interpretation that requirements that are imposed, or that become due, 
after a complete redesignation request is submitted for an area that is 
attaining the standard, are not applicable for purposes of evaluating a 
redesignation request. Second, EPA then shows that, even if EPA applies 
the subpart 4 requirements to the Parkersburg-Marietta Area 
redesignation request and disregards the provisions of its 1997 
PM2.5 implementation rule recently remanded by the D.C. 
Circuit Court, the State's request for redesignation of this Area still 
qualifies for approval. EPA's discussion takes into account the effect 
of the D.C. Circuit Court's ruling on the Area's maintenance plan, 
which EPA views as approvable when subpart 4 requirements are 
considered.
a. Applicable Requirements for Purposes of Evaluating the Redesignation 
Request
    With respect to the 1997 PM2.5 Implementation Rule, the 
D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for 
implementing the PM2.5 NAAQS solely in accordance with the 
provisions of subpart 1, and remanded that matter to EPA, so that it 
could address implementation of the 1997 PM2.5 NAAQS under 
subpart 4 of Part D of the CAA, in addition to subpart 1. For the 
purposes of evaluating West Virginia's redesignation request for the 
Parkersburg-Marietta Area, to the extent that implementation under 
subpart 4 would impose additional requirements for areas designated 
nonattainment, EPA believes that those requirements are not 
``applicable'' for the purposes of section 107(d)(3)(E) of the CAA, and 
thus EPA is not required to consider subpart 4 requirements with 
respect to the Parkersburg-Marietta Area redesignation. Under its 
longstanding

[[Page 40658]]

interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to 
mean, as a threshold matter, that the part D provisions which are 
``applicable'' and which must be approved in order for EPA to 
redesignate an area include only those which came due prior to a 
state's submittal of a complete redesignation request. See ``Procedures 
for Processing Requests to Redesignate Areas to Attainment,'' 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, September 4, 1992 (Calcagni memorandum). See also ``State 
Implementation Plan (SIP) Requirements for Areas Submitting Requests 
for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) 
National Ambient Air Quality Standards (NAAQS) on or after November 15, 
1992,'' Memorandum from Michael Shapiro, Acting Assistant 
Administrator, Air and Radiation, September 17, 1993 (Shapiro 
memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 
12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, 
(68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 
537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking 
applying this interpretation and expressly rejecting Sierra Club's view 
that the meaning of ``applicable'' under the statute is ``whatever 
should have been in the plan at the time of attainment rather than 
whatever actually was in the plan and already implemented or due at the 
time of attainment'').\1\ In this case, at the time that West Virginia 
submitted its redesignation request, requirements under subpart 4 were 
not due, and indeed, were not yet known to apply.
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    \1\ Applicable requirements of the CAA that come due subsequent 
to the area's submittal of a complete redesignation request remain 
applicable until a redesignation is approved, but are not required 
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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    EPA's view that, for purposes of evaluating the Parkersburg-
Marietta Area redesignation, the subpart 4 requirements were not due at 
the time West Virginia submitted the redesignation request is in 
keeping with the EPA's interpretation of subpart 2 requirements for 
subpart 1 ozone areas redesignated subsequent to the D.C. Circuit 
Court's decision in South Coast Air Quality Mgmt. Dist. v. EPA, 472 
F.3d 882 (D.C. Cir. 2006). In South Coast, the D.C. Circuit Court found 
that EPA was not permitted to implement the 1997 8-hour ozone standard 
solely under subpart 1, and held that EPA was required under the 
statute to implement the standard under the ozone-specific requirements 
of subpart 2 as well. Subsequent to the South Coast decision, in 
evaluating and acting upon redesignation requests for the 1997 8-hour 
ozone standard that were submitted to EPA for areas under subpart 1, 
EPA applied its longstanding interpretation of the CAA that 
``applicable requirements,'' for purposes of evaluating a 
redesignation, are those that had been due at the time the 
redesignation request was submitted. See, e.g., Proposed Redesignation 
of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 
22050, April 27, 2010). In those actions, EPA therefore did not 
consider subpart 2 requirements to be ``applicable'' for the purposes 
of evaluating whether the area should be redesignated under section 
107(d)(3)(E) of the CAA.
    EPA's interpretation derives from the provisions of section 
107(d)(3) of the CAA. Section 107(d)(3)(E)(v) states that, for an area 
to be redesignated, a state must meet ``all requirements `applicable' 
to the area under section 110 and part D.'' Section 107(d)(3)(E)(ii) 
provides that EPA must have fully approved the ``applicable'' SIP for 
the area seeking redesignation. These two sections read together 
support EPA's interpretation of ``applicable'' as only those 
requirements that came due prior to submission of a complete 
redesignation request. First, holding states to an ongoing obligation 
to adopt new CAA requirements that arose after the state submitted its 
redesignation request, in order to be redesignated, would make it 
problematic or impossible for EPA to act on redesignation requests in 
accordance with the 18-month deadline Congress set for EPA action in 
section 107(d)(3)(D). If ``applicable requirements'' were interpreted 
to be a continuing flow of requirements with no reasonable limitation, 
states, after submitting a redesignation request, would be forced 
continuously to make additional SIP submissions that in turn would 
require EPA to undertake further notice-and-comment rulemaking actions 
to act on those submissions. This would create a regime of unceasing 
rulemaking that would delay action on the redesignation request beyond 
the 18-month timeframe provided by the CAA for this purpose.
    Second, a fundamental premise for redesignating a nonattainment 
area to attainment is that the area has attained the relevant NAAQS due 
to emission reductions from existing controls. Thus, an area for which 
a redesignation request has been submitted would have already attained 
the NAAQS as a result of satisfying statutory requirements that came 
due prior to the submission of the request. Absent a showing that 
unadopted and unimplemented requirements are necessary for future 
maintenance, it is reasonable to view the requirements applicable for 
purposes of evaluating the redesignation request as including only 
those SIP requirements that have already come due. These are the 
requirements that led to attainment of the NAAQS. To require, for 
redesignation approval, that a state also satisfy additional SIP 
requirements coming due after the state submits its complete 
redesignation request, and while EPA is reviewing it, would compel the 
state to do more than is necessary to attain the NAAQS, without a 
showing that the additional requirements are necessary for maintenance.
    In the context of this redesignation, the timing and nature of the 
D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA compound 
the consequences of imposing requirements that come due after the 
redesignation request is submitted. West Virginia submitted its 
redesignation request on March 5, 2012, but the D.C. Circuit Court did 
not issue its decision remanding EPA's 1997 PM2.5 
implementation rule concerning the applicability of the provisions of 
subpart 4 until January 2013.
    To require West Virginia's fully-completed and pending 
redesignation request to comply now with requirements of subpart 4 that 
the D.C. Circuit Court announced only on January 4, 2013, would be to 
give retroactive effect to such requirements when the State had no 
notice that it was required to meet them. The D.C. Circuit Court 
recognized the inequity of this type of retroactive impact in Sierra 
Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),\2\ where it upheld the 
D.C. District Court's ruling refusing to make retroactive EPA's 
determination that the St. Louis area did not meet its attainment 
deadline. In that case, petitioners urged the D.C. Circuit Court to 
make EPA's nonattainment determination effective as of the date that 
the statute required, rather than the later date on which EPA actually 
made the determination. The D.C. Circuit Court rejected this view, 
stating that applying it ``would likely impose large costs on States, 
which would face fines

[[Page 40659]]

and suits for not implementing air pollution prevention plans . . . 
even though they were not on notice at the time.'' Id. at 68. 
Similarly, it would be unreasonable to penalize West Virginia by 
rejecting its redesignation request for an area that is already 
attaining the 1997 PM2.5 standard and that met all 
applicable requirements known to be in effect at the time of the 
request. For EPA now to reject the redesignation request solely because 
the state did not expressly address subpart 4 requirements of which it 
had no notice, would inflict the same unfairness condemned by the D.C. 
Circuit Court in Sierra Club v. Whitman.
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    \2\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit Court decision that addressed retroactivity in a 
quite different context, where, unlike the situation here, EPA 
sought to give its regulations retroactive effect. National 
Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. 
Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert 
denied 132 S. Ct. 571 (2011).
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b. Subpart 4 Requirements and Parkersburg-Marietta Area's Redesignation 
Request
    Even if EPA were to take the view that the D.C. Circuit Court's 
January 4, 2013 decision requires that, in the context of pending 
redesignations, subpart 4 requirements were due and in effect at the 
time the State submitted its redesignation request, EPA proposes to 
determine that the Parkersburg-Marietta Area still qualifies for 
redesignation to attainment. As explained below, EPA believes that the 
redesignation request for the Parkersburg-Marietta Area, though not 
expressed in terms of subpart 4 requirements, substantively meets the 
requirements of that subpart for purposes of redesignating the area to 
attainment.
    With respect to evaluating the relevant substantive requirements of 
subpart 4 for purposes of redesignating the Parkersburg-Marietta Area, 
EPA notes that subpart 4 incorporates components of subpart 1 of part 
D, which contains general air quality planning requirements for areas 
designated as nonattainment. See section 172(c). Subpart 4 itself 
contains specific planning and scheduling requirements for 
PM10\3\ nonattainment areas, and under the D.C. Circuit 
Court's January 4, 2013 decision in NRDC v. EPA, these same statutory 
requirements also apply for PM2.5 nonattainment areas. EPA 
has longstanding general guidance that interprets the 1990 amendments 
to the CAA, making recommendations to states for meeting the statutory 
requirements for SIPs for nonattainment areas. See, ``State 
Implementation Plans; General Preamble for the Implementation of Title 
I of the Clear Air Act Amendments of 1990,'' (57 FR 13498, April 16, 
1992) (the ``General Preamble''). In the General Preamble, EPA 
discussed the relationship of subpart 1 and subpart 4 SIP requirements, 
and pointed out that subpart 1 requirements were to an extent 
``subsumed by, or integrally related to, the more specific 
PM10 requirements.'' (57 FR 13538, April 16, 1992). EPA's 
December 11, 2012 NPR for this redesignation action addressed how the 
Parkersburg-Marietta Area meets the requirements for redesignation 
under subpart 1. These subpart 1 requirements include, among other 
things, provisions for attainment demonstrations, reasonably available 
control measures (RACM), reasonable further progress (RFP), emissions 
inventories, and contingency measures.
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    \3\ PM10 refers to particulates nominally 10 
micrometers in diameter or smaller.
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    For the purposes of this redesignation, in order to identify any 
additional requirements which would apply under subpart 4, EPA is 
considering the Parkersburg-Marietta Area to be a ``moderate'' 
PM2.5 nonattainment area. Under section 188 of the CAA, all 
areas designated nonattainment areas under subpart 4 would initially be 
classified by operation of law as ``moderate'' nonattainment areas, and 
would remain moderate nonattainment areas unless and until EPA 
reclassifies the area as a ``serious'' nonattainment area. Accordingly, 
EPA believes that it is appropriate to limit the evaluation of the 
potential impact of subpart 4 requirements to those that would be 
applicable to moderate nonattainment areas. Sections 189(a) and (c) of 
subpart 4 apply to moderate nonattainment areas and include the 
following: (1) An approved permit program for construction of new and 
modified major stationary sources (section 189(a)(1)(A)); (2) an 
attainment demonstration (section 189(a)(1)(B)); (3) provisions for 
RACM (section 189(a)(1)(C)); and (4) quantitative milestones 
demonstrating RFP toward attainment by the applicable attainment date 
(section 189(c)).
    The permit requirements of subpart 4, as contained in section 
189(a)(1)(A), refer to and apply the subpart 1 permit provisions 
requirements of sections 172 and 173 to PM10, without adding 
to them. Consequently, EPA believes that section 189(a)(1)(A) does not 
itself impose for redesignation purposes any additional requirements 
for moderate areas beyond those contained in subpart 1.\4\ In any 
event, in the context of redesignation, EPA has long relied on the 
interpretation that a fully approved nonattainment new source review 
program is not considered an applicable requirement for redesignation, 
provided the area can maintain the standard with a prevention of 
significant deterioration (PSD) program after redesignation. A detailed 
rationale for this view is described in a memorandum from Mary Nichols, 
Assistant Administrator for Air and Radiation, dated October 14, 1994, 
entitled, ``Part D New Source Review Requirements for Areas Requesting 
Redesignation to Attainment.'' See also rulemakings for Detroit, 
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, 
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
---------------------------------------------------------------------------

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

    With respect to the specific attainment planning requirements under 
subpart 4,\5\ when EPA evaluates a redesignation request under either 
subpart 1 and/or 4, any area that is attaining the PM2.5 
standard is viewed as having satisfied the attainment planning 
requirements for these subparts. For redesignations, EPA has for many 
years interpreted attainment-linked requirements as not applicable for 
areas attaining the standard. In the General Preamble, EPA stated that: 
``The requirements for RFP will not apply in evaluating a request for 
redesignation to attainment since, at a minimum, the air quality data 
for the area must show that the area has already attained. Showing that 
the State will make RFP towards attainment will, therefore, have no 
meaning at that point.'' See General Preamble for the Interpretation of 
Title I of the Clean Air Act Amendments of 1990; (57 FR 13498, 13564, 
April 16, 1992).
---------------------------------------------------------------------------

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

    The General Preamble also explained that: ``[t]he section 172(c)(9) 
requirements are directed at ensuring RFP and attainment by the 
applicable date. These requirements no longer apply when an area has 
attained the standard and is eligible for redesignation. Furthermore, 
section 175A for maintenance plans . . . provides specific requirements 
for contingency measures that effectively supersede the requirements of 
section 172(c)(9) for these areas.'' Id. EPA similarly stated in its 
1992 Calcagni memorandum that, ``The requirements for reasonable 
further progress and other measures needed for attainment will not 
apply for redesignations because they only have meaning for areas not 
attaining the standard.''
    It is evident that even if we were to consider the D.C. Circuit 
Court's January 4, 2013 decision in NRDC v. EPA to

[[Page 40660]]

mean that attainment-related requirements specific to subpart 4 should 
be imposed retroactively \6\ and thus are now past due, those 
requirements do not apply to an area that is attaining the 1997 
PM2.5 standard, for the purpose of evaluating a pending 
request to redesignate the area to attainment. EPA has consistently 
enunciated this interpretation of applicable requirements under section 
107(d)(3)(E) of the CAA since the General Preamble was published more 
than twenty years ago. Courts have recognized the scope of EPA's 
authority to interpret ``applicable requirements'' in the redesignation 
context. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
---------------------------------------------------------------------------

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

    Moreover, even outside the context of redesignations, EPA has 
viewed the obligations to submit attainment-related SIP planning 
requirements of subpart 4 as inapplicable for areas that EPA determines 
are attaining the standard. EPA's prior ``Clean Data Policy'' 
rulemakings for the PM10 NAAQS, also governed by the 
requirements of subpart 4, explain EPA's reasoning. They describe the 
effects of a determination of attainment on the attainment-related SIP 
planning requirements of subpart 4. See ``Determination of Attainment 
for Coso Junction Nonattainment Area,'' (75 FR 27944, May 19, 2010). 
See also Coso Junction proposed PM10 redesignation, (75 FR 
36023, 36027, June 24, 2010); Proposed and Final Determinations of 
Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55, 
July 19, 2006; and 71 FR 63641, 63643-47, October 30, 2006). In short, 
EPA in this context has also long concluded that to require states to 
meet superfluous SIP planning requirements is not necessary and not 
required by the CAA, so long as those areas continue to attain the 
relevant NAAQS.
    In its December 11, 2012 NPR for this action, EPA proposed to 
determine that the Parkersburg-Marietta Area has attained the 1997 
PM2.5 NAAQS and therefore meets the attainment-related plan 
requirements of subpart 1. Under its longstanding interpretation, EPA 
is proposing to determine here that the Area also meets the attainment-
related plan requirements of subpart 4.
    Thus, EPA is proposing to conclude that the requirements to submit 
an attainment demonstration under 189(a)(1)(B), a RACM determination 
under sections 172(c)(1) and 189(a)(1)(c), a RFP demonstration under 
189(c)(1), and contingency requirements under section 172(c)(9) of the 
CAA are satisfied for purposes of evaluating the redesignation request.
c. Subpart 4 and Control of PM2.5 Precursors
    The DC Circuit Court in NRDC v. EPA remanded to EPA the two rules 
at issue in the case with instructions to EPA to re-promulgate them 
consistent with the requirements of subpart 4. EPA in this section 
addresses the DC Circuit Court's opinion with respect to 
PM2.5 precursors. While past implementation of subpart 4 for 
PM10 has allowed for control of PM10 precursors 
such as NOX from major stationary, mobile, and area sources 
in order to attain the standard as expeditiously as practicable, 
section 189(e) of the CAA specifically provides that control 
requirements for major stationary sources of direct PM10 
shall also apply to PM10 precursors from those sources, 
except where EPA determines that major stationary sources of such 
precursors ``do not contribute significantly to PM10 levels 
which exceed the standard in the area.''
    EPA's 1997 PM2.5 Implementation Rule, remanded by the DC 
Circuit Court, contained rebuttable presumptions concerning certain 
PM2.5 precursors applicable to attainment plans and control 
measures related to those plans. Specifically, in 40 CFR 51.1002, EPA 
provided, among other things, that a state was ``not required to 
address VOC [and NH3] as . . . PM2.5 attainment 
plan precursor[s] and to evaluate sources of VOC [and NH3] 
emissions in the State for control measures.'' EPA intended these to be 
rebuttable presumptions. EPA established these presumptions at the time 
because of uncertainties regarding the emission inventories for these 
pollutants and the effectiveness of specific control measures in 
various regions of the country in reducing PM2.5 
concentrations. EPA also left open the possibility for such regulation 
of NH3 and VOC in specific areas where that was necessary.
    The DC Circuit Court in its January 4, 2013 decision made reference 
to both section 189(e) and 40 CFR 51. 1002, and stated that, ``In light 
of our disposition, we need not address the petitioners' challenge to 
the presumptions in [40 CFR 51.1002] that NH3 and VOCs are 
not PM2.5 precursors, as subpart 4 expressly governs 
precursor presumptions.'' NRDC v. EPA, at 27, n.10.
    Elsewhere in the DC Circuit Court's opinion, however, the Court 
observed: ``NH3 is a precursor to fine particulate matter, 
making it a precursor to both PM2.5 and PM10. For 
a PM10 nonattainment area governed by subpart 4, a precursor 
is presumptively regulated. See 42 U.S.C. Sec.  7513a(e) [section 
189(e)].'' Id. at 21, n.7.
    For a number of reasons, EPA believes that its proposed 
redesignation of the Parkersburg-Marietta Area is consistent with the 
DC Circuit Court's decision on this aspect of subpart 4. First, while 
the DC Circuit Court, citing section 189(e), stated that ``for a 
PM10 area governed by subpart 4, a precursor is 
presumptively regulated,'' the DC Circuit Court expressly declined to 
decide the specific challenge to EPA's 1997 PM2.5 
implementation rule provisions regarding NH3 and VOC as 
precursors. The DC Circuit Court had no occasion to reach whether and 
how it was substantively necessary to regulate any specific precursor 
in a particular PM2.5 nonattainment area, and did not 
address what might be necessary for purposes of acting upon a 
redesignation request.
    However, even if EPA takes the view that the requirements of 
subpart 4 were deemed applicable at the time the state submitted the 
redesignation request, and disregards the implementation rule's 
rebuttable presumptions regarding NH3 and VOC as 
PM2.5 precursors, the regulatory consequence would be to 
consider the need for regulation of all precursors from any sources in 
the area to demonstrate attainment and to apply the section 189(e) 
provisions to major stationary sources of precursors. In the case of 
Parkersburg-Marietta Area, EPA believes that doing so is consistent 
with proposing redesignation of the Area for the 1997 PM2.5 
standard. The Parkersburg-Marietta Area has attained the standard 
without any specific additional controls of NH3 and VOC 
emissions from any sources in the area.
    Precursors in subpart 4 are specifically regulated under the 
provisions of section 189(e), which requires, with important 
exceptions, control requirements for major stationary sources of 
PM10 precursors.\7\ Under subpart 1 and EPA's prior 
implementation rule, all major stationary sources of PM2.5 
precursors were subject to regulation, with the exception of 
NH3 and VOC. Thus, we must address here whether additional 
controls of NH3 and VOC from major stationary sources are 
required under section 189(e) of subpart 4 in order to redesignate the 
Parkersburg-Marietta Area for the 1997 annual PM2.5

[[Page 40661]]

standard. As explained below, we do not believe that any additional 
controls of NH3 and VOC are required in the context of this 
redesignation.
---------------------------------------------------------------------------

    \7\ Under either subpart 1 or subpart 4, for purposes of 
demonstrating attainment as expeditiously as practicable, a state is 
required to evaluate all economically and technologically feasible 
control measures for direct PM emissions and precursor emissions, 
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------

    In the General Preamble, EPA discusses its approach to implementing 
section 189(e). See 57 FR 13538-13542. With regard to precursor 
regulation under section 189(e), the General Preamble explicitly stated 
that control of VOCs under other CAA requirements may suffice to 
relieve a state from the need to adopt precursor controls under section 
189(e). See 57 FR 13542. EPA in this supplemental proposal proposes to 
determine that the West Virginia SIP has met the provisions of section 
189(e) with respect to NH3 and VOCs as precursors. This 
proposed supplemental determination is based on EPA's findings that (1) 
the Parkersburg-Marietta Area contains no major stationary sources of 
NH3, and (2) existing major stationary sources of VOC are 
adequately controlled under other provisions of the CAA regulating the 
ozone NAAQS.\8\ In the alternative, EPA proposes to determine that, 
under the express exception provisions of section 189(e), and in the 
context of the redesignation of the Parkersburg-Marietta Area, which is 
attaining the 1997 annual PM2.5 standard, at present VOC and 
NH3 precursors from major stationary sources do not 
contribute significantly to levels exceeding the 1997 annual 
PM2.5 standard in the Parkersburg-Marietta Area. See 57 FR 
13539-42.
---------------------------------------------------------------------------

    \8\ The Parkersburg-Marietta Area has reduced VOC emissions 
through the implementation of various control programs including VOC 
Reasonably Available Control Technology regulations (45CSR21) and 
various onroad and nonroad motor vehicle control programs.
---------------------------------------------------------------------------

    EPA notes that its 1997 PM2.5 implementation rule 
provisions in 40 CFR 51.1002 were not directed at evaluation of 
PM2.5 precursors in the context of redesignation, but at SIP 
plans and control measures required to bring a nonattainment area into 
attainment of the 1997 PM2.5 NAAQS. By contrast, 
redesignation to attainment primarily requires the area to have already 
attained due to permanent and enforceable emission reductions, and to 
demonstrate that controls in place can continue to maintain the 
standard. Thus, even if EPA regards the DC Circuit Court's January 4, 
2013 decision as calling for ``presumptive regulation'' of 
NH3 and VOC for PM2.5 under the attainment 
planning provisions of subpart 4, those provisions in and of themselves 
do not require additional controls of these precursors for an area that 
already qualifies for redesignation. Nor does EPA believe that 
requiring West Virginia to address precursors differently than they 
have already would result in a substantively different outcome.
    Although, as EPA has emphasized, its consideration here of 
precursor requirements under subpart 4 is in the context of a 
redesignation to attainment, EPA's existing interpretation of subpart 4 
requirements with respect to precursors in attainment plans for 
PM10 contemplates that states may develop attainment plans 
that regulate only those precursors that are necessary for purposes of 
attainment in the area in question, i.e., states may determine that 
only certain precursors need be regulated for attainment and control 
purposes.\9\ Courts have upheld this approach to the requirements of 
subpart 4 for PM10.\10\ EPA believes that application of 
this approach to PM2.5 precursors under subpart 4 is 
reasonable. Because the Parkersburg-Marietta Area has already attained 
the 1997 annual PM2.5 NAAQS with its current approach to 
regulation of PM2.5 precursors, EPA believes that it is 
reasonable to conclude in the context of this redesignation that there 
is no need to revisit the attainment control strategy with respect to 
the treatment of precursors. Even if the DC Circuit Court's decision is 
construed to impose an obligation, in evaluating this redesignation 
request, to consider additional precursors under subpart 4, it would 
not affect EPA's approval here of West Virginia's request for 
redesignation of the Parkersburg-Marietta Area. In the context of a 
redesignation, the Area has shown that it has attained the standard. 
Moreover, the State has shown and EPA has proposed to determine that 
attainment in this Area is due to permanent and enforceable emissions 
reductions on all precursors necessary to provide for continued 
attainment. It follows logically that no further control of additional 
precursors is necessary. Accordingly, EPA does not view the January 4, 
2013 decision of the DC Circuit Court as precluding redesignation of 
the Parkersburg-Marietta Area to attainment for the 1997 
PM2.5 NAAQS at this time.
---------------------------------------------------------------------------

    \9\ See, e.g., ``Approval and Promulgation of Implementation 
Plans for California--San Joaquin Valley PM10 
Nonattainment Area; Serious Area Plan for Nonattainment of the 24-
Hour and Annual PM10 Standards,'' 69 FR 30006 (May 26, 
2004) (approving a PM10 attainment plan that impose 
controls on direct PM10 and NOX emissions and 
did not impose controls on SO2, VOC, or NH3 
emissions).
    \10\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------

    In summary, even if West Virginia were required to address 
precursors for the Parkersburg-Marietta Area under subpart 4 rather 
than under subpart 1, as interpreted in EPA's remanded PM2.5 
implementation rule, EPA would still conclude that the Area had met all 
applicable requirements for purposes of redesignation in accordance 
with section 107(d)(3(E)(ii) and (v) of the CAA.
d. Maintenance Plan and Evaluation of Precursors
    With regard to the redesignation of West Virginia, in evaluating 
the effect of the DC Circuit Court's remand of EPA's implementation 
rule, which included presumptions against consideration of 
NH3 and VOC as PM2.5 precursors, EPA in this 
supplemental proposal is also considering the impact of the decision on 
the maintenance plan required under sections 175A and 107(d)(3)(E)(iv) 
of the CAA. To begin with, EPA notes that the Parkersburg-Marietta Area 
has attained the 1997 annual PM2.5 standard and that the 
State has shown that attainment of that standard is due to permanent 
and enforceable emission reductions.
    In the December 11, 2012 NPR, EPA proposed to determine that the 
State's maintenance plan shows continued maintenance of the standard by 
tracking the levels of the precursors whose control brought about 
attainment of the 1997 annual PM2.5 standard in the 
Parkersburg-Marietta Area. EPA therefore, believes that the only 
additional consideration related to the maintenance plan requirements 
that results from the DC Circuit Court's January 4, 2013 decision, is 
that of assessing the potential role of NH3 and VOCs in 
demonstrating continued maintenance in this Area. As explained below, 
based upon documentation provided by the State and supporting 
information, EPA believes that the maintenance plan for the 
Parkersburg-Marietta Area need not include any additional emission 
reductions of NH3 or VOCs in order to provide for continued 
maintenance of the standard.
    First, as noted above in EPA's discussion of section 189(e), VOC 
emission levels in this Area have historically been well-controlled 
under SIP requirements related to ozone and other pollutants. Second, 
total NH3 emissions throughout the Parkersburg-Marietta Area 
are very low, estimated to be less than 2,000 tons per year. See Table 
2 below. This amount of NH3 emissions appears especially 
small in comparison to the total amounts of SO2, 
NOX, and even direct PM2.5 emissions from sources 
in the Area. Third, as described below, available information shows 
that no precursor, including NH3 and VOCs, is expected to 
increase over the maintenance period so as to

[[Page 40662]]

interfere with or undermine the State's maintenance demonstration.
    West Virginia's maintenance plan shows that emissions of direct 
PM2.5, SO2, and NOX are projected to 
decrease by 130 tons per year (tpy), 111,095 tpy, and 22,456 tpy, 
respectively, over the maintenance period. See Table 1 below. In 
addition, emissions inventories used in the regulatory impact analysis 
(RIA) for the 2012 PM2.5 NAAQS show that VOC emissions are 
projected to decrease by 2,424 tpy between 2007 and 2020. 
NH3 emissions are projected to increase by 130 tpy between 
2007 and 2020. See Table 2 below. Given that the Parkersburg-Marietta 
Area is already attaining the 1997 annual PM2.5 NAAQS even 
with the current level of emissions from sources in the Area, the 
downward trend of emissions inventories would be consistent with 
continued attainment. Indeed, projected emissions reductions for the 
precursors that the State is addressing for purposes of the 1997 annual 
PM2.5 NAAQS indicate that the Area should continue to attain 
the NAAQS following the precursor control strategy that the State has 
already elected to pursue. Even if NH3 and VOC emissions 
were to increase unexpectedly between 2015 and 2022, the overall 
emissions reductions projected in direct PM2.5, 
SO2, and NOX would be sufficient to offset any 
increases. For these reasons, EPA believes that local emissions of all 
of the potential PM2.5 precursors will not increase to the 
extent that they will cause monitored PM2.5 levels to 
violate the 1997 PM2.5 standard during the maintenance 
period.

  Table 1--Comparison of 2008, 2015, 2022 SO2, NOX, and Direct PM2.5 Emission Totals in Tons per Year (tpy) for
                                   the Parkersburg-Marietta Nonattainment Area
----------------------------------------------------------------------------------------------------------------
                                                                        SO2             NOX            PM2.5
----------------------------------------------------------------------------------------------------------------
2008............................................................         159,535          35,412           3,686
2015............................................................          77,294          18,509           3,648
2022............................................................          48,439          12,985           3,557
Decrease from 2008 to 2022......................................         111,095          22,426             130
----------------------------------------------------------------------------------------------------------------


Table 2--Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Parkersburg-
                                        Marietta Nonattainment Area \11\
----------------------------------------------------------------------------------------------------------------
                                                     VOC                                    NH3
----------------------------------------------------------------------------------------------------------------
                                                               Net change                             Net change
              Sector                    2007         2020      2007-2020       2007         2020      2007-2020
----------------------------------------------------------------------------------------------------------------
Point.............................        1,526        1,529            3          601          759          158
Area..............................        2,180        2,157          -23          774          793           19
Nonroad...........................        1,452          763         -689            2            2            0
On-road...........................        2,471          755       -1,716           89           42          -47
Fires.............................          257          257            0           18           18            0
                                   -----------------------------------------------------------------------------
    Total.........................        7,885        5,461       -2,424        1,484        1,614          130
----------------------------------------------------------------------------------------------------------------

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

    \11\ These emissions estimates were taken from the emissions 
inventories developed for the RIA for the 2012 PM2.5 
NAAQS. NH3 increases are due to some (5%) increase in 
fertilizer application, but mostly from electric generating unit 
(EGU), and with huge SO2 (point) reductions (213,738 in 
2007 and 16,881 in 2020) would offset any increases.
---------------------------------------------------------------------------

    In addition, available air quality modeling analyses show continued 
maintenance of the standard during the maintenance period. The current 
air quality design value for the Area is 12.3 micrograms per cubic 
meter ([mu]g/m3) (based on 2009-2011 air quality data), 
which is well below the 1997 annual PM2.5 NAAQS of 15 [mu]g/
m3. Moreover, the modeling analysis conducted for the RIA 
for the 2012 PM2.5 indicates that the design value for this 
Area is expected to continue to decline through 2020. In the RIA 
analysis, the 2020 modeled design value for the Parkersburg- Marietta 
Area is 9.2 [mu]g/m3. Given that precursor emissions are 
projected to decrease through 2020, it is reasonable to conclude that 
monitored PM2.5 levels in this Area will also continue to 
decrease in 2020.
    Thus, EPA believes that there is ample justification to conclude 
that the Parkersburg-Marietta Area should be redesignated, even taking 
into consideration the emissions of other precursors potentially 
relevant to PM2.5. After consideration of the D.C. Circuit 
Court's January 4, 2013 decision, and for the reasons set forth in this 
supplemental notice, EPA continues to propose approval of West 
Virginia's maintenance plan and it's request to redesignate the 
Parkersburg-Marietta Area to attainment for the 1997 annual 
PM2.5 standard.

III. Proposed Action

    After fully considering the D.C. Circuit Court's decisions in EME 
Homer City on EPA's CSAPR rule and NRDC v. EPA on EPA's 1997 
PM2.5 Implementation rule, EPA in this supplemental notice 
is proposing to proceed with approval of the request to redesignate the 
Parkesburg-Marietta Area to attainment for the 1997 annual 
PM2.5 NAAQS, the associated maintenance plan, and the 
insignificance determination for onroad motor vehicle contribution of 
PM2.5, NOX and SO2. EPA is seeking 
comment only on the issues raised in its supplemental proposal, and is 
not reopening comment on other issues addressed in its prior proposal.

IV. 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

[[Page 40663]]

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 proposed rule pertaining to the redesignation of 
the West Virginia portion of the Parkersburg-Marietta WV-OH 1997 annual 
PM2.5 nonattainment area, does not have tribal implications 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Air pollution control, National parks, Wilderness Areas.

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

    Dated: June 13, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-16060 Filed 7-5-13; 8:45 am]
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